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https://www.courtlistener.com/api/rest/v3/opinions/2586466/ | 226 P.3d 130 (2010)
233 Or. App. 509
STATE
v.
McGEEVER.
A139714
Court of Appeals of Oregon.
January 27, 2010.
Affirmed Without Opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591761/ | 936 So. 2d 377 (2006)
Ellis Wayne WATTS, Appellant
v.
STATE of Mississippi, Appellee.
No. 2004-KA-01872-COA.
Court of Appeals of Mississippi.
February 14, 2006.
Rehearing Denied May 30, 2006.
*379 William L. Ducker, Purvis, attorney for appellant.
Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
Before LEE, P.J., IRVING and CHANDLER, JJ.
IRVING, J., for the Court.
¶ 1. Ellis Watts was convicted in the Circuit Court of Lamar County of possession of precursor chemicals with intent to manufacture a controlled substance. He was sentenced to fifteen years in the custody of the Mississippi Department of Corrections with five years to be served at the Mississippi Department of Corrections. The remaining ten years were to be served on post-release provisions, with a five-year supervision period. Watts was also ordered to pay a $5,000 fine and to participate in a drug and alcohol treatment program prior to his release.
¶ 2. Feeling aggrieved, Watts appeals and asserts that the trial court erred in (1) overruling his motion to suppress, (2) admitting evidence over his objections, (3) denying his motion for a directed verdict, (4) overruling all objections made by him that were, in fact, overruled, and (5) refusing certain jury instructions that were requested by him.
¶ 3. Finding no error, we affirm.
FACTS
¶ 4. Chris Lowe, a deputy with the Lamar County Sheriff's Department, received a telephone call from security at the Wal-Mart store located on Highway 49 in Hattiesburg, Mississippi. The call was to *380 inform Deputy Lowe that an individual in a wrecker, marked "Wayne's Wrecker," had purchased two cans of starter fluid. Thereafter, Deputy Lowe set up surveillance at the other Wal-Mart located on Highway 98 in Hattiesburg, Mississippi. Deputy Lowe observed the wrecker pulling into the Wal-Mart parking lot, and he asked Wal-Mart security to inform him of the items which were purchased by the individual driving the wrecker. After being told what the individual had purchased, Deputy Lowe followed the wrecker for a short distance before initiating a traffic stop. The driver of the wrecker, later identified as Ellis Watts, consented to a search of his vehicle. The search of the vehicle uncovered two cans of starter fluid, four boxes of Equate Antihistabs, aquarium tubing, an aquarium pump, and two gas cans. All were items that Watts had just purchased from the two Wal-Marts. Deputy Lowe found the cans of starter fluid concealed under a camouflage net in a tool bucket and the anitihistabs stuffed in the seat under the armrest of the wrecker.
¶ 5. At trial, Deputy Lowe explained that methamphetamine manufacturers often purchase different ingredients at different locations in order to avoid suspicion. Deputy Lowe testified that starter fluid and pseudoephedrine pills are two of various items used to manufacture methamphetamine. Deputy Lowe also testified that after he placed Watts under arrest and read him his Miranda rights, he asked Watts when was the last time that Watts had used methamphetamine. Deputy Lowe stated that Watts told him that he had used methamphetamine the day before.[1]
¶ 6. Based on the statement made about the last time he had used methamphetamine and the items recovered from his vehicle, Deputy Lowe obtained a search warrant for Watts's residence. At Watts's home the police discovered a "burn pile," which is often associated with methamphetamine cooking because it provides a means to dispose of evidence. An empty salt box was found outside, well away from Watts's kitchen. This was an important discovery because there was testimony that salt is used in the process of cooking methamphetamine. Probably most important was the discovery of two aerosol cans that had been punctured at the bottom. The significance of this discovery is that the punctured holes in the cans is consistent with the process of removing ether for use in methamphetamine cooking.
¶ 7. Archie Nichols, a forensic scientist employed by the Mississippi Crime Laboratory, testified concerning the chemical analysis that he performed on the two cans of starting fluid and four boxes (exactly 192 tablets) tendered to him by the Lamar County Sheriff's Department for analysis. Nichols testified that the cans of starter fluid contained ether, which is one of the components used in the manufacturing of methamphetamine. Nichols also testified that the four boxes of antihistabs contained the active ingredient pseudoephedrine, which is the main ingredient in methamphetamine. Nichols explained to the jury how salt is used in the cooking process. He also explained that the aquarium *381 pump and tubing, which were found in Watts's possession, are commonly used in manufacturing methamphetamine. Finally, Nichols testified that he was not sure how the two newly purchased gas cans might have been used but that they could have been used to either store solvents or transfer the product from one container to another.
¶ 8. Jonathan Harless, a lieutenant with the Mississippi Department of Public Safety, Bureau of Narcotics, was qualified as an expert in the illegal manufacture of methamphetamine. Harless explained that methamphetamine manufacturers perform certain tasks to relieve the pressure in ether cans and then puncture neat round holes in the cans to extract the ether from the can. Harless also explained the use of aquarium tubing in the process of manufacturing methamphetamine. Harless testified that it has been his experience that "burn piles" are common at methamphetamine manufacturing sites because they allow methamphetamine manufacturers to burn off incriminating labels. Harless testified that after listening to the testimony about the circumstances under which the items were purchased and the way that they were discovered, in conjunction with what the search of Watts's residence revealed, it was his opinion, based on his training and experience, that the items Watts purchased were going to be used to manufacture methamphetamine.
¶ 9. Watts, who owned a wrecker service and auto repair shop, testified as to why he was in possession of the various items generally associated with manufacturing methamphetamine. He testified that his two diesel wreckers were being repaired and that the mechanic performing the work informed him that he needed two cans of starter fluid to assist in starting the trucks. This story was corroborated by the testimony of the mechanic who performed the repairs. Watts testified that he was going to use the aquarium tubing and pump as a syphon hose, which was something that he regularly used in his line of business. Watts also testified that he noticed that Wal-Mart had the two gas cans on sale as a bundle package. According to Watts, part of his wrecker services encompassed taking gas to people who had run out of gas; therefore, he was always looking for a deal on gas cans because he could always use more. Watts further testified that he bought two packs of the antihistabs for his "sinus and allergies" without realizing that he already had two packs in his wrecker. Finally, Watts testified that the reason that he went to both Wal-Marts was that one store did not have a particular item that he needed, and he thought that maybe the other store may have had the item.
¶ 10. Additional facts, as necessary, will be related during the discussion of the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
(1) Motion to Suppress
¶ 11. Watts contends that the trial court erred in overruling his motion to suppress. Watts argues that it was error for the court not to hear his motion in a separate hearing. Watts further argues that he was entitled to an in camera hearing on his motion to suppress either prior to the trial or outside the presence of the jury. Watts maintains that the court erred in deciding first to receive all the evidence and then rule on his motion.
¶ 12. "When this court reviews a trial court's ruling on a suppression hearing, we must determine whether the trial court's finding is supported by substantial evidence considering the totality of the *382 circumstances." Reid v. State, 825 So. 2d 701, 702(¶ 5) (Miss.Ct.App.2002). The admissibility of evidence lies within the trial court's discretion and the trial court will only be reversed if that discretion is abused. Crawford v. State, 754 So. 2d 1211, 1215(¶ 7) (Miss.2000). With this standard in mind, we examine Watts's arguments.
¶ 13. We note from the outset that Watts had a duty to pursue a hearing and decision by the court on his motion to suppress. See URCCC 2.04. Watts does not explain in his brief why the court failed to grant him a hearing on his motion to suppress, and we do not know why the court decided to take this course of action. Nevertheless, notwithstanding the fact that the judge did not rule on the motion until near the end of the trial, we find that he did not abuse his discretion because there was substantial evidence to support his ruling. Watts was stopped after law enforcement officials received credible information that he had purchased some precursor chemicals. Based on this information, as we discuss in the second issue below, Deputy Lowe had probable cause to initiate a traffic stop of Watts's vehicle. Once Watts's vehicle was stopped, he gave Deputy Lowe permission to search his vehicle. The search uncovered evidence that Watts now seeks to suppress. For these reasons, the evidence should have been admitted, and the trial court properly overruled Watts's motion to suppress.
¶ 14. The motion to suppress also sought the suppression of Watts's admission to Deputy Davis that Watts had recently used methamphetamine. Watts argues that Deputy Davis, who was the person that transported Watts to the police station, was not present when Deputy Lowe gave Watts his Miranda warnings. Therefore, according to Watts, Deputy Davis should have given him his Miranda warnings again before he started questioning him about his recent use of methamphetamine. Watts cites Underwood v. State, 708 So. 2d 18 (Miss.1998) and Taylor v. State, 789 So. 2d 787 (Miss.2001), as support for his contention that his subsequent statement required a subsequent Miranda warning or, at the least, that Deputy Davis should not have been allowed to rely on the warning given by Deputy Lowe. However, the Mississippi Supreme Court has stated:
[N]either Underwood nor Miranda requires that a criminal defendant be advised of his rights every time there is a brief pause in questioning. Miranda simply requires that `[i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.'
Taylor, 789 So.2d at 794(¶ 27) (citing Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)). Watts does not claim that he invoked his right to remain silent while being questioned by the deputies.
¶ 15. Even if we were to hold that Deputy Davis should have administered a second set of warnings, we would hold the failure harmless since it is not disputed that Deputy Lowe administered the Miranda warnings to Watts, and Watts made the same statement to Deputy Lowe as he made to Deputy Davis. Therefore, Watts's statement to Davis was cumulative. Accordingly, we find that this issue is without merit.
(2) Erroneous Admission of Evidence
¶ 16. Watts asserts that the trial court erred in admitting certain evidence against him. The Mississippi Supreme Court has established the following standard of review for a trial court's admission of evidence: "[T]he admissibility of evidence *383 rests within the discretion of the trial court. [However], the trial court's discretion must be exercised within the scope of the Mississippi Rules of Evidence and reversal will be appropriate only when an abuse of discretion resulting in prejudice to the accused occurs." Sturdivant v. State, 745 So. 2d 240, 243(¶ 10) (Miss.1999) (citations omitted).
¶ 17. The primary thrust of Watts's argument is that the cans of starter fluid, the siphon hose, the two gas cans, and the four boxes of pills should not have been introduced into evidence because they were the products of an illegal search. Watts appears to be making the argument that Deputy Lowe lacked reasonable suspicion to initiate a traffic stop on his vehicle; therefore, the evidence resulting from the search should have been suppressed because the search, itself, was illegal. Watts cites Walker v. State, 881 So. 2d 820 (Miss. 2004), as support for his proposition. However, we find Walker to stand for the exact opposite position. In Walker, our supreme court stated that "the investigative stop exception of the Fourth Amendment warrant requirement allows a police officer to conduct a brief investigative stop if the officer has a reasonable suspicion, based upon specific and articulable facts which, taken together with rational inferences from those facts, result in the conclusion that criminal behavior has occurred or is imminent." Walker, 881 So.2d at 826(¶ 10) (citing Terry v. Ohio, 392 U.S. 1, 19, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)).
¶ 18. Here, Watts was stopped after he was observed purchasing two precursor chemicals at two different Wal-Marts within a short span of time. Based on the information received from Wal-Mart security personnel, Deputy Lowe clearly had reasonable suspicion to conclude that criminal behavior had occurred or was imminent. Moreover, after Deputy Lowe initiated the investigatory traffic stop, Watts consented to a search of his vehicle, which resulted in the discovery of the other items he contends should not have been admitted into evidence. Therefore, we find that the trial court did not abuse its discretion in admitting the evidence.
¶ 19. Watts also contends that the trial court admitted his oral statement to Deputy Lowe about the last time he had used methamphetamine without first conducting a Rule 403 analysis.[2] This assertion is completely contradicted by the record, as evidenced by the following conversation between the court and Watts's trial counsel:
BY THE COURT: Well, I understand it's prejudicial. The fact that he had Sudafed with him is also prejudicial.
BY MR. JONES: Your Honor, I'm not talking about the Sudafed. I'm talking about
BY THE COURT: I understand. The statement that he had used the lastthe day before.
BY MR. JONES: The eveningthe night before.
BY THE COURT: The day beforethe night before. No, that is verythat's more probative of the issue of why he waswhat he was going to use these items for than it would be prejudicial, and so I think the probative value there would outweigh the prejudicial. . . .
Therefore, this issue is without merit.
(3) Motion for a Directed Verdict
¶ 20. Watts contends that the trial court erred in denying his motion for *384 a directed verdict. Watts claims that the trial court should have sustained his motions for a directed verdict at the close of the State's case-in-chief and at the conclusion of the trial.[3] Watts argues that although he was found in possession of two precursor chemicals, ether and pseudoephedrine, there was nothing illegal about his possession, given his profession and his reason for purchasing the pills. Watts also argues that there was insufficient evidence to prove his intent to manufacture a controlled substance.
¶ 21. A motion for a directed verdict challenges the legal sufficiency of the evidence. When reviewing the legal sufficiency of the evidence supporting a conviction, we examine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Dilworth v. State, 909 So. 2d 731, 736 (¶ 17) (Miss.2005) (quoting Bush v. State, 895 So. 2d 836 (¶ 16) (Miss.2005)).
¶ 22. Considering the evidence in the light most favorable to the prosecution, we find that there was more than sufficient evidence for a reasonable jury to find that Watts committed the charged offense. Watts was found in possession of two precursor chemicals, a fact which is uncontroverted. Although Watts gave explanations for the reasons why he possessed these items, it was up to the jury to accept or reject his explanation. Further, Watts admitted to using methamphetamine the day before. A search of Watts's home uncovered other items associated with methamphetamine manufacturing. There was testimony by law enforcement officials, trained in the prevention and detection of methamphetamine manufacturing, that Watts's actions indicated an intent to manufacture methamphetamine. Therefore, the evidence presented was sufficient to support a conviction. Watts's assignment of error is without merit.
(4) Watts's Objections
¶ 23. In this assignment of error, Watts contends that the trial court erred in overruling certain objections that he made. Watts specifically complains of two objections that were overruled by the trial judge.
¶ 24. First, Watts objected and moved for a mistrial when a member of the venire made the following comment: "As an employee of Wal-Mart, I've seen Mr. Watts in the 49 store a lot." Apparently, this comment was made during voir dire. Watts argues that this comment tainted the entire venire and deprived him of a fair trial. "Whether to grant a motion for a mistrial is within the sound discretion of the trial court. The standard of review for denial of a motion for mistrial is abuse of discretion." Shelton, 853 So.2d at 1183 (¶ 41) (citing Pulphus v. State, 782 So. 2d 1220, 1223 (¶ 10) (Miss.2001)). "The failure of the court to grant a motion for a mistrial will not be overturned on appeal unless the trial court abused its discretion." Id. (quoting Bass v. State, 597 So. 2d 182, 191 (Miss.1992)).
¶ 25. We find that the trial court did not abuse its discretion in denying the *385 motion for a mistrial. We cannot say that the comment by a member of the venire resulted in substantial or irreparable harm to Watts's case because Watts, in his own testimony, admitted to frequent trips to Wal-Mart: "I usually shop Wal-Mart all the time. I mean, that was mythe cheapest and best place. You know, I could get most anything and everything I needed." Watts also admitted to going to two different Wal-Marts on the day in question. Furthermore, Watts's trial counsel, as well as the prosecution, decided not to transcribe the voir dire portion of the trial. As a result, Watts failed to provide us with a record of what actually transpired during this portion of the trial. We note that Watts's trial counsel submitted a supplemental affidavit asserting that such a remark was indeed made. However, this affidavit does little to aid our review because it fails to set forth what transpired after the remark was made. Therefore, there is no record of what actions, if any, the court may have taken to correct the problem. Accordingly, Watts's assertions that the trial court did nothing to determine the prejudicial effect of the remark cannot be supported by the record. We cannot hold the lower court in error when Watts has failed to present a sufficient record to support his argument. See Williams v. State, 522 So. 2d 201, 209 (Miss.1988). This issue is without merit.
¶ 26. Watts next argues that the court erred in admitting rebuttal testimony by the prosecution. Watts contends that the rebuttal testimony of Deputies Davis and Lowe was not in response to anything brought out in his defense of the case.
¶ 27. The determination of whether evidence is properly admitted as rebuttal evidence is within the discretion of the trial court. Ruffin v. State, 736 So. 2d 407, 409 (¶ 10) (Miss.Ct.App.1999) (citing Powell v. State, 662 So. 2d 1095, 1098-99 (Miss.1995)). "Therefore, on appeal, [appellate courts] review such a ruling only for an abuse of discretion." McGaughy v. State, 742 So. 2d 1091, 1093 (¶ 6) (Miss. 1999). The Mississippi Supreme Court has spoken on the issue of rebuttal evidence:
The rule is that when the question is not free from doubt whether the evidence offered in rebuttal is that which belongs to the evidence in chief, or whether it is rebuttal evidence proper, the court should resolve the doubt in favor of reception in rebuttal where (1) its reception will not consume so much additional time as to give an undue weight in practical probative force to the evidence so received in rebuttal, and (2) the opposite party would be substantially as well prepared to meet it by surrebuttal as if the testimony had been offered in chief, and (3) the opposite party upon request therefor is given the opportunity to reply by surrebuttal.
Smith v. State, 646 So. 2d 538, 543-44 (Miss.1994) (quoting Riley v. State, 248 Miss. 177, 186, 157 So. 2d 381, 385 (1963)).
¶ 28. A review of the record reveals that the rebuttal testimony was properly admitted. Watts denied making an admission to Deputy Lowe about using methamphetamine the day before Watts was arrested. Deputy Davis rebutted Watts's claim by testifying that Watts told him the same thing while in transit to the police station. Watts also denied that he tried to conceal any of the items he bought at Wal-Mart. Deputy Lowe was called to rebut this assertion, and he reiterated the manner in which he discovered certain items when he performed the search of Watts's vehicle. Watts also claims that he was not afforded an opportunity for surrebuttal. A review of the record reveals that Watts's trial counsel never requested surrebuttal; *386 therefore, Watts cannot now claim that the lower court denied him something for which he never asked. Accordingly, we find that this issue is without merit.
(5) Jury Instructions
¶ 29. Watts contends that the trial court erred in refusing to grant two of his jury instructions. Watts argues that one of his instructions, D-10, should have been granted because it properly instructed the jury on reasonable doubt, and it was not repetitive of any other instruction given. Watts further argues that the court's granting of the presumption of innocence instruction did not suffice for instructing the jury on reasonable doubt.
¶ 30. "In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found." Johnson v. State, 823 So. 2d 582, 584 (¶ 4) (Miss. Ct.App.2002) (quoting Hickombottom v. State, 409 So. 2d 1337, 1339 (Miss.1982)). Defendants do not have an absolute right to have their jury instructions granted. "A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is fairly covered elsewhere in the instructions, or is without foundation in the evidence." Humphrey v. State, 759 So. 2d 368, 380 (¶ 33) (Miss.2000) (quoting Heidel v. State, 587 So. 2d 835, 842 (Miss.1991)) (overruled on other grounds).
¶ 31. In his designation of the record, Watts only designated the two instructions that he contends the court erred in not granting. He did not designate, and the record is missing, the remaining jury instructions. The Mississippi Supreme Court has spoke on the issue of an appellant relying on evidence not contained in the record in support of arguments requesting reversal:
We have on many occasions held that we must decide each case by the facts shown in the record, not assertions in the brief, however sincere counsel may be in those assertions. Facts asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we cannot know them.
Mason v. State, 440 So. 2d 318, 319 (Miss. 1983). Appellate courts have repeatedly stressed that transcripts which are necessary for appeal are to be made part of the record, and that the appellant bears the burden of presenting a record which is sufficient to support his assignments of error. Roberts v. State, 761 So. 2d 934, 935 (¶ 3) (Miss.Ct.App.2000) (citing Williams, 522 So.2d at 209). Watts's assertions that the trial court erred in not granting his instructions and in failing to properly instruct the jury on reasonable doubt cannot be supported by the record because he failed to provide us with all given instructions. The record reflects that eleven instructions were given, and Watts only provided the two refused instructions for our review. We cannot find that the trial court erred in refusing Watts's two jury instructions without first knowing the substance of the jury instructions that were actually given. Because Watts failed to present a sufficient record to support his arguments, this assignment of error is without merit.
¶ 32. THE JUDGMENT OF THE CIRCUIT COURT OF LAMAR COUNTY OF CONVICTION OF POSSESSION OF PRECURSOR CHEMICALS WITH INTENT TO MANUFACTURE A CONTROLLED SUBSTANCE AND *387 SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS TO BE SERVED AT THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND THE REMAINING TEN YEARS OF SAID SENTENCE TO BE SERVED UNDER THE POST-RELEASE PROVISIONS WITH A FIVE-YEAR SUPERVISION PERIOD, AND FINE OF $5,000, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.
NOTES
[1] Deputy Lowe testified that after he placed Watts under arrest, he called Deputy Scott Davis to transport Watts to the Lamar County Jail. While the record does not reflect the exact time Deputy Davis arrived, it appears that he arrived very shortly after being called, because Watts wrecker was still on the scene when he arrived. Deputy Davis testified that he was aware that Deputy Lowe had administered the Miranda warnings to Watts. After Deputy Davis began the transport to the Lamar County Jail, he also asked Watts when was the last time that Watts had used methamphetamine. Watts's answer to Deputy Davis was the same as Watts's answer to Deputy Lowe.
[2] Mississippi Rule of Evidence 403 states that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
[3] It is a well-settled principle of Mississippi law that "when the defendant proceeds with his case after the State rests and the court overrules the defendant's motion for a directed verdict, the defendant has waived the appeal of that directed verdict." Shelton v. State, 853 So. 2d 1171, 1186 (¶ 49) (Miss.2003) (citing Holland v. State, 656 So. 2d 1192, 1197 (Miss.1995)). Therefore, Watts effectively waived his motion for a directed verdict when the trial court denied the motion and he proceeded with his case. Consequently, we limit our discussion to Watts's motion for a directed verdict at the conclusion of the trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919286/ | 106 B.R. 743 (1989)
In re Donald W. PATRICK, Debtor.
AMLONG & AMLONG, P.A., Plaintiff,
v.
Donald W. PATRICK, Defendant.
Bankruptcy No. 89-32323-BKC-TCB, Adv. No. 89-0339-BKC-TCB-A.
United States Bankruptcy Court, S.D. Florida.
September 18, 1989.
*744 Amlong & Amlong, P.A., Ft. Lauderdale, Fla., pro se.
Kenneth S. Rappaport, Boca Raton, Fla., for defendant.
MEMORANDUM DECISION
THOMAS C. BRITTON, Chief Judge.
The plaintiff law firm seeks exception from discharge under 11 U.S.C. § 523(a)(5)[1] for its claim of $13,370. The debtor has answered and the matter was tried on September 5. I now conclude that the debtor's obligation to his ex-wife's attorneys for fees and costs in connection with a dissolution of marriage proceeding is nondischargeable.
The debtor filed his bankruptcy petition on May 12, 1989. The plaintiff is listed on his schedules as a creditor in the amount of $13,370.
The debtor's marriage was dissolved by a final judgment dated February 29, 1988. (CP 1 Ex. A). The judgment provides in paragraph 6B that the wife be awarded as "permanent periodic alimony" $750 per month, and in paragraph 6C that as "rehabilitative alimony" the wife be awarded title to real property in South Carolina. Thereafter, in four paragraphs, separate provisions set forth division of the parties' personal property. The award of attorney's fees and costs follows in a separate paragraph.
Detailed findings with respect to the parties' earning capacities are set forth in the final judgment (¶ 2). The husband's estimated future annual income is $72,000. The potential for the wife to earn $23,000 annual income was determined on the premise that she could earn that amount after two-and-one-half years additional time to obtain a bachelor's degree.
The wife incurred $26,740 in attorney's fees and costs in the divorce proceeding. The judgment provided that the husband pay one-half. A separate agreed judgment (CP 1 Ex. B) entered against the debtor for the amount of $13,370 is the subject of this adversary proceeding.
It is the plaintiff's position that this award is in the nature of alimony or support. I agree.
Section 523(a)(5) excepts from discharge debts to a former spouse:
"for alimony to, maintenance for, or support of such spouse or child, in connection with a . . . divorce decree . . ., but not to the extent that . . . (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support."
The debtor argues that the attorney's fees and costs which were essentially associated with the division of property relative to the entire award should be apportioned and treated as an equitable distribution of property.
It is clear on the face of the judgment that the alimony award was based on the parties' disparate incomes, and no evidence has been presented to overcome the obvious intent that alimony be provided to the *745 wife. The characterization of alimony is not disputed.
The prevailing view under the Code, as it was under the former Act, is that attorneys' fees incurred in connection with alimony or support awards partake of the exception accorded to those awards. As stated in 3 Collier on Bankruptcy (15th ed. 1989) ¶ 523.15[1]:
"it would appear that such debts are necessarily a part of the alimony award and would fall within § 523(a)(5)(B)."
The majority rule is based on the principle that the courts consider the same factors in awarding attorney's fees as in alimony and that the fees are intertwined with and an integral part of other nondischargeable obligations. See e.g., In re Spong, 661 F.2d 6, 9 (2nd Cir.1981); In re Dorman, 3 C.B.C.2d 497, 500 (D.N.J.1981). See also In re Nunnally, 506 F.2d 1024, 1027 (5th Cir.1975) (decided under Bankruptcy Act § 17c(7)). In essence, where the wife is denied alimony, the debt for attorney's fees is dischargeable. In re Trichon, 11 B.R. 658, 661 (Bankr.S.D.N.Y. 1981). That is not the case here. The judgment was not restricted solely to a division of property.
The debtor's argument, based on computing relative amounts of alimony and property, imposes a standard of measurement not found in the statute. A similar argument was rejected by the court in In re Romano, 27 B.R. 36, 38 (Bankr.M.D.Fla. 1983). See also In re Stamper, 17 B.R. 216, 220-21 (Bankr.S.D.Ohio 1982) (burden not on party seeking exception).
Furthermore, even though the amount of fees and costs was incorporated into an agreed judgment, the prior judgment which directed the debtor to pay the wife's attorneys' fees derives from the authority granted the court under Fla.Stat. § 61.16, which requires that the court consider:
"the financial resources of both parties" in determining which shall bear the legal expense.[2]McLendon v. McLendon, 483 So.2d 498 (Fla.Dist.Ct.App.1986).
I find that the State court's determination to award attorney's fees and costs to the ex-wife follows the standard of considering the disparate incomes of the spouses and the appropriate measure of need or support, also considered in the provision for alimony. Matter of Heverly, 68 B.R. 21, 23 (Bankr.M.D.Fla.1986).
Therefore, the debt for legal fees and costs is in the nature of alimony or support, and is nondischargeable under § 523(a)(5).
As is required by B.R. 9021, a separate judgment will be entered excepting from discharge plaintiff's claim in the amount of $13,370. Costs may be taxed on motion.
DONE and ORDERED.
NOTES
[1] The reference in the complaint (CP 1) to § 727(c) is an obvious error.
[2] See In re Cockhill, 72 B.R. 339, 343 (Bankr.N. D.Ill.1987) n. 8 (citing Ford v. Strickland, 696 F.2d 804, 811 (11th Cir.), cert. denied, 464 U.S. 865, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983) (regarding "presumption of regularity", i.e., state courts presumably follow their own law and procedures)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919293/ | 106 B.R. 165 (1989)
In re Antonio DEL GROSSO, Debtor.
Bankruptcy No. 89 B 06606.
United States Bankruptcy Court, N.D. Illinois, E.D.
October 13, 1989.
John V. Del Gaudio, Jr., Chicago, Ill., for debtor Antonio Del Grosso.
Harry Miller, Trustee, Chicago, Ill.
MEMORANDUM OPINION
JOHN H. SQUIRES, Bankruptcy Judge.
This matter comes to be heard on the application of Harry S. Miller as Trustee (the "Trustee") of the estate of Antonio Del Grosso (the "Debtor") to authorize settlement of a personal injury lawsuit. For the reasons set forth herein, the Court hereby approves the settlement.
I. JURISDICTION AND PROCEDURE
The Court has jurisdiction to entertain this motion pursuant to 28 U.S.C. § 1334 and General Orders of the United States District Court for the Northern District of Illinois. The motion constitutes a core proceeding under 28 U.S.C. § 157(b)(2)(A), (O).
II. FACTS AND BACKGROUND
The Debtor filed a voluntary Chapter 11 petition on April 19, 1989. Pursuant to creditor allegations of fraud and mismanagement, the Court held a hearing on a motion for the appointment of a trustee or examiner. Thereafter, on June 27, 1989, *166 the Court appointed an examiner. Subsequently, a report of the examiner's preliminary investigation was submitted to the Court. On July 13, 1989, after a hearing on the Debtor's motion to voluntarily dismiss the case and a creditor's motion to convert, the Court converted the case to Chapter 7. Harry Miller was appointed Interim Trustee on July 14, 1989.
Prior to the filing of the case, the Debtor retained attorney Thomas M. Breen ("Breen"), for the purpose of representing him in connection with a cause of action arising out of personal injuries he sustained on February 6, 1988. On that date, the Debtor and Robert W. Vink were involved in an automobile collision at the intersection of Stony Island and 186th Street in Thornton, Illinois.
The agreement between the Debtor and Breen provides that Breen is to be paid a contingent fee in the sum of one-third of any amount recovered on the personal injury claim by way of suit, settlement or otherwise. Moreover, the agreement provides that Breen is authorized to incur reasonable expenses in connection with the settlement, adjustment or prosecution of the cause of action and shall be reimbursed for the actual amount of those expenses. Breen maintains offices with the law firm of Walsh, Neville, Pappas & Mahoney (the "Mahoney firm"). Breen had an oral arrangement by which he referred the Debtor's personal injury case to that firm. Breen would receive a referral fee out of the contingent fee based on the work he performed in connection with the case.
Subsequently, in February 1988, Breen and the Mahoney firm filed a complaint on behalf of the Debtor in the Circuit Court of Cook County naming Robert W. Vink, Jr. and Telecommunications Contractors, Inc., Vink's employer. The complaint was amended on June 28, 1988. The amended complaint seeks damages in an amount in excess of fifteen thousand dollars. Substantial discovery has been completed and settlement negotiations have produced an offer of $125,000.00.
The Trustee has applied to the Court for approval of the settlement as in the best interest of the estate. The Debtor is the only party objecting. He contends that settlement is premature at this time, the amount offered is too low and that the Trustee should first marshal and liquidate other assets of the estate to pay allowed claims, perhaps in full, so that the personal injury action could be abandoned to the Debtor.
III. EVIDENCE ADDUCED AT TRIAL
Terence J. Mahoney testified at the hearing in regard to the offer of settlement from the insurance company. He is a partner with the Mahoney firm. Most of his practice is limited to personal injury cases. He has had extensive trial experience in this area of practice.
According to Mahoney's review of the documentary evidence and related medical records, the Debtor sustained the following personal injuries as a result of the accident: concussion; multiple lacerations, contusions and abrasions; and a fractured right scapula, left second rib, and right distal tibia. In addition, the Debtor has suffered some residual injuries consisting of loss of memory regarding the facts of the occurrence, frequent dizziness and tires easily.
Mahoney testified that he received several offers from defense counsel responsive to the initial demand of $200,000.00. The last offer was initially made for $100,000.00 in cash plus an annuity for fifteen to twenty years for $50,000.00. This offer was modified, after consultation with the Debtor, to a cash settlement of $125,000.00. Mahoney recommended the settlement to the Debtor before he learned of the pending bankruptcy case. The bases for his continuing recommendation to the Trustee are numerous: 1) a review of the Debtor's medical records and reports from treating physicians indicated no permanent injuries; 2) the Debtor has had no further medical treatment from his orthopedic physician for over a year; 3) the current backlog of jury trials in the Circuit Court of Cook County would put the time of trial in 1994 or 1995; 4) investigation of the facts and circumstances of the accident indicated no corroborating occurrence witnesses; 5) in Mahoney's *167 experience in the field of personal injury lawsuits, the offer was in the range of a probable favorable verdict; and 6) the Debtor approved the amount offered. Mahoney is of the opinion that if the case were tried, a probable favorable verdict would result ranging from under $100,000.00 to over $200,000.00. He further represented that the offer was final and could be withdrawn.
The Debtor substantially confirmed Mahoney's testimony as to the personal injuries he sustained. In addition, he testified that he was in a coma for two days post-accident; his right ankle is continually swollen; he received a lump on the right side of his head; he experiences dizziness approximately sixty percent of the time; he experiences some loss of vision in the right eye; and he must walk with a cane at all times due to the hip injury. Moreover, the Debtor testified that his lifestyle has changed because of his claim of traumatically induced arthritis which onset after the accident. He concluded that the settlement offer was inadequate considering the injuries he has sustained. He denied approving the offer of $125,000.00.
IV. DISCUSSION
Bankruptcy Rule 9019(a) empowers the Court to approve a proposed compromise or settlement and provides in relevant part that: "[o]n motion by the trustee and after a hearing on notice to creditors . . . and to such other persons as the Court may designate, the court may approve a compromise or settlement." Fed.R.Bankr.P. 9019(a). Rule 9019(a) is essential the same as former Rule 919(a). The Rule has been construed to give the Court broad authority to approve compromises. In re Sherman Homes, Inc., 28 B.R. 176, 177 (Bankr.D.Me. 1983). Courts generally recognize that compromises are favored. See In re New York, New Haven & Hartford Railroad Co., 632 F.2d 955 (2d Cir.1980), cert. denied, 449 U.S. 1062, 101 S.Ct. 786, 66 L.Ed.2d 605 (1980). The purpose of a compromise is to allow the Trustee and the creditors to avoid the expenses and burdens associated with litigating contested claims. Matter of Walsh Construction, Inc., 669 F.2d 1325, 1328 (9th Cir.1982).
In spite of the requirement of Court approval, the Trustee must initially determine whether litigation should be settled and whether the terms are in the best interest of the estate. The Trustee's power to compromise extends to all controversies affecting the estate and not merely those involved in pending suits. Florida Trailer and Equipment Company v. Deal, 284 F.2d 567, 569 (5th Cir.1960). The requirement that adequate information be set forth in sufficient detail to enable approval of a settlement parallels the same requirement applicable to consideration of settlements in class actions or derivative actions pursuant to Rules 23 and 23.1 of the Federal Rules of Civil Procedure. In re Lion Capital Group, 49 B.R. 163, 176 (Bankr.S. D.N.Y.1985).
The decision to approve an application to compromise is a matter within the discretion of the Court. In re Aweco, Inc., 725 F.2d 293, 297 (5th Cir.1984) cert. denied, 469 U.S. 880, 105 S.Ct. 244, 83 L.Ed.2d 182 (1984); In re Sherman Homes, Inc., 28 B.R. at 177. The decision will not be disturbed on appeal absent a clear showing of abuse of discretion. In re Patel, 43 B.R. 500, 504-505 (N.D.Ill.1984); In re Bell & Beckwith, 77 B.R. 606, 611 (Bankr.N.D. Ohio 1987) aff'd, 87 B.R. 472 (N.D. Ohio 1988). Generally, the Court will approve a settlement if it is in the best interest of the estate. In re American Reserve Corp., 841 F.2d 159, 161 (7th Cir.1987); In re A & C Properties, 784 F.2d 1377, 1380-1382 (9th Cir.1986), cert. denied, Martin v. Robinson, 479 U.S. 854, 107 S.Ct. 189, 93 L.Ed.2d 122 (1986); In re Heissinger Resources Ltd. 67 B.R. 378, 383 (C.D.Ill.1986); Patel, 43 B.R. at 505; In re Central Ice Cream Co., 59 B.R. 476, 487 (Bankr.N.D. Ill.1985) ("In approving a settlement in a liquidation proceeding, the Court must determine what course of action is in the best interest of the Estate, with major consideration to the interests of creditors. . . . A proposed settlement in a liquidation proceeding should be approved if it provides for `the best possible realization upon the available assets . . . without undue waste *168 or needless or fruitless litigation.'" Id. at 487 (quoting In re Kearney, 184 F. 190, 192 (N.D.N.Y.1910)).
Prior to approving a settlement, the Court has the duty to review the merits of the agreement to ensure that the compromise is fair. Protective Committee for Independent Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424, 88 S.Ct. 1157, 1163, 20 L.Ed.2d 1 (1968). ("TMT Trailer").[1] In exercising its discretion, the bankruptcy court must weigh all factors bearing on the reasonableness of the settlement including: 1) the probability of success in the litigation; 2) the difficulties, if any, to be encountered in the matter of collection; 3) the complexity of the litigation involved, and the expense and inconvenience in delay necessarily attending it; and 4) the paramount interest of the creditors and a proper deference to their reasonable views. In re Flight Transportation Corp. Securities Litigation, 730 F.2d 1128, 1135 (8th Cir.1984) cert. denied, 469 U.S. 1207, 105 S.Ct. 1169, 84 L.Ed.2d 320 (1985), citing Drexel v. Loomis, 35 F.2d 800, 806 (8th Cir.1929). Accord, TMT Trailer, 390 U.S. at 424-425, 88 S.Ct. at 1163-1164; Patel, 43 B.R. at 504; Central Ice Cream Co., 59 B.R. at 487; In re Erickson, 82 B.R. 97, 99 (D.Minn.1987). The Court has the responsibility of making an informed, independent judgment, apprising itself of "all facts necessary for an intelligent and objective opinion of the probabilities of ultimate success should the claim be litigated." TMT Trailer, 390 U.S. at 424, 88 S.Ct. at 1163.
The Trustee, as proponent of the proposed settlement, has the burden of showing that the settlement terms are in the best interest of the estate. In re Hallet, 33 B.R. 564, 565-566 (Bankr.D.Me. 1983). The Court may give weight to the opinions of the Trustee, the parties and their attorneys. In re Blair, 538 F.2d 849, 851 (9th Cir.1976). The Trustee's disapproval is a factor pointing to the impropriety of a compromise. In re Paley, 26 F.Supp. 952 (S.D.N.Y.1939). Proponents of settlement, and normally the Trustee in the first instance, must show the proposal is reasonable and that: 1) the settlement was not collusive, but was arrived at after arms-length negotiations; 2) that the proponents have counsel experienced in similar cases; 3) that there has been sufficient discovery of the underlying claims of parties to enable counsel to act intelligently; and 4) that the number of objectants or their relative interest is small. Feder v. Harrington, 58 F.R.D. 171, 174-175 (S.D.N.Y.1972).
Once there is a showing that the settlement should be approved, the burden then shifts to the objecting party who cannot oppose the settlement by merely demanding more proof. "To allow the objectors to disrupt the settlement on the basis of nothing more than their unsupported suppositions would completely thwart the settlement process. . . . [T]he objectors [must] have made a clear and specific showing that the vital material was ignored by the District Court." City of Detroit v. Grinnell Corp., 495 F.2d 448, 464 (2d Cir.1974). The Court may approve a settlement over objections of some parties, as long as the settlement is in the best interests of the estate as a whole. In re Flight Transportation Corp. Securities Litigation, 730 F.2d 1128, 1138 (8th Cir.1984) cert. denied, 469 U.S. 1207, 105 S.Ct. 1169, 84 L.Ed.2d 320 (1985).
The Court concludes that the Trustee has met his burden. The evidence adduced at the hearing clearly establishes that the proposed settlement is in the best interest of the creditors and the estate. Although there is probable success if the case were tried to verdict in 1989, there is no guarantee of same in 1994 or 1995. Mahoney's testimony indicated little difficulty if any in the matter of collection. The case is not unduly complex but the delay and inconvenience attendant to waiting *169 until 1994 or 1995 is substantial. If the case is tried, additional expenses for expert witness and other costs will likely be incurred. Furthermore, the paramount interests of the creditors weigh heavily in favor of this settlement. In fact, none of the creditors have objected to the proposed compromise.
Moreover, the Trustee has demonstrated that the proposal is reasonable and was arrived at after arms-length negotiations and that he has retained special counsel, namely the Mahoney firm, experienced in similar cases, who has conducted sufficient discovery to intelligently evaluate and recommend acceptance of the offer. The Debtor's exempt interest pursuant to Ill. Rev.Stat. ch. 110 ¶ 12-1001(h)(4) is limited to $7,500.00 of the claim. This amount is relatively small as compared to that of the creditors.
All attendant facts and circumstances of the proposed settlement and the underlying cause of action have been fully disclosed. Thus, the Court can make an informed and independent judgment about the matter. Settlement is not premature. The amount of the settlement is fair and reasonable and within the estimated range of probable recovery. Thus, the amount is not too low although it is understandably less than the Debtor would like to receive.
The Debtor's argument which would require the Trustee to first marshal other assets of the estate to pay creditors' claims so that this asset could be abandoned to the Debtor is disingenuous. Neither the Trustee nor the Debtor cite any supporting authority for that proposition. The equitable doctrine of marshalling normally applies for the purpose of protecting creditors who have competing claims where one has security in two funds in the hands of a debtor, but the other has security in only one fund. See DuPage Lumber & Home Improv. Center Co. v. Georgia-Pacific Corp., 34 B.R. 737 (N.D.Ill.1983). Although the Court has considered the Debtor's arguments and objections, the doctrine of marshalling would be inappropriately invoked in this case.
V. CONCLUSION
For the foregoing reasons, the Court hereby authorizes settlement of the personal injury lawsuit by the Trustee in the amount of $125,000.00 with all perfected liens or assignments, if any, to attach to said settlement proceeds. This matter is set for further hearing on November 27, 1989 at 2:00 p.m., for determination of allowance, validity and amount of said liens or assignments.
This Opinion is to serve as findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Procedure 7052.
See written Order.
NOTES
[1] Courts have used a "fair and equitable" standard and a "best interest of the estate" standard. The Seventh Circuit stated in In re American Reserve Corp., 841 F.2d 159, 162 (7th Cir.1987), "[a]ny distinction between the `best interests of the estate' and the `fair and equitable' standards is of little consequence." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919295/ | 106 B.R. 441 (1989)
In re TAYLOR TOBACCO ENTERPRISES, INC., d/b/a Taylor Manufacturing Company, Debtor.
No. 88-979-CIV-5.
United States District Court, E.D. North Carolina, Raleigh Division.
October 9, 1989.
Newton G. Pritchett, Jr., Asst. Atty. Gen., Raleigh, N.C., for appellant N.C. Dept. of Revenue.
James O. Carter, Carter & Carter, Wilmington, N.C., for James O. Carter, Trustee.
Algernon L. Butler, Wilmington, N.C., for debtor.
ORDER
TERRENCE WILLIAM BOYLE, District Judge.
This matter is before the undersigned judge on appeal by the North Carolina Department of Revenue from an adverse order and memorandum opinion of the United States Bankruptcy Court for the Eastern District of North Carolina. The order in the underlying bankruptcy cause accorded priority status to sales taxes collected by the debtor, but denied priority status to sales taxes that had not been collected by *442 the debtor. This court reviews the bankruptcy court's legal determinations de novo. Richmond Leasing Co. v. Capital Bank, 762 F.2d 1303, 1307 (5th Cir.1985) (per curiam).
Taylor Tobacco Enterprises, Inc., was a manufacturer of farming equipment that filed a Chapter 7 petition for bankruptcy on March 4, 1983. The North Carolina Department of Revenue filed a proof of claim for unpaid taxes amounting to $73,194.15. Included in this total were $27,774.95 of sales and use taxes that Taylor had collected from its customers and $19,163.14 that had not been collected. The Department of Revenue claimed a priority of payment over the sales taxes pursuant to 11 U.S.C. § 507(a)(7)(C), which accords priority status to taxes required to be collected by a party and held for the government. Through its trustee, Taylor contended that the taxes should be considered excise taxes and accorded the limited priority of § 507(a)(7)(E), which would result in priority status being accorded to only those taxes for which a return was last due within three years of the filing of the petition.
After examining the conflict between the trust fund and the excise provisions of § 507(a)(7), the bankruptcy court held that those taxes which had been collected had formed a trust res and were accorded unlimited priority status, but that the uncollected taxes were to be accorded the limited priority of the three years prior to the filing of the bankruptcy petition. The Department of Revenue appealed this order to claim that the bankruptcy court erred in using the collected/uncollected status of the taxes as an element in determining their priority status. Taylor argues that its entire sales tax debt should be accorded limited priority status.
The Code provision in question is § 507(a), which governs the priority of payment of non-dischargeable claims against a debtor.[1] Section 507(a) consists of seven categories listed in descending order of priority, each of which qualifies as an exception to discharge under 11 U.S.C. § 523(a)(1). The claims of governmental units, primarily for tax debts, is the seventh priority[2] and is further divided into subsections. There are two subsections that apply to the issue in question: § 507(a)(7)(C), the trust fund provision[3] ("Section C"), and § 507(a)(7)(E), the excise tax provision ("Section E"). Section C grants complete priority status to a "tax required to be collected or withheld." Section E gives an excise tax a priority status *443 limited only when the transaction underlying the tax occurred less than three years prior to the date on which the bankruptcy petition was filed.
Collected sales taxes have been held to fall within the unlimited trust fund priority of Section E by three appellate courts. Rosenow v. State of Illinois Department of Revenue, 715 F.2d 277 (7th Cir.1983); DeChiaro v. New York State Tax Commission, 760 F.2d 432 (2nd Cir.1985); In re Shank, 792 F.2d 829 (9th Cir.1986) (applying the State of Washington tax code). Each of the courts in these cases found that the resolution of the question required an examination of the legislative history of Sections C and E because the "statutory language plainly creates an overlap between the provisions for trust and excise taxes." DeChiaro, 760 F.2d at 435. This overlap occurs because a tax, such as the sales tax at issue here, may be an excise tax but also one that is required to be collected by the retailer and then owed by the retailer to the government. Rosenow, 715 F.2d at 279, 280; DeChiaro, 760 F.2d at 435.
The legislative history relating to the question of which section should apply to a sales tax is illuminating, but inconclusive. The predecessor to § 507 was § 17(a)(1) of the Bankruptcy Act, which itself was the product of an amendment limiting the prior rule that any tax levied by a government was excepted from discharge. Act of July 5, 1966, Pub.L. No. 89-496, § 2, 80 Stat. 270. The amended § 17(a)(1) placed a three-year time bar on unpaid taxes beyond which all "state" taxes were dischargeable. The amendment also created a number of exceptions to the time bar, among which was § 17(a)(1)(e), which provided that "any taxes . . . which the bankrupt has collected or withheld from others as required by [law], but has not paid over" were not limited by the time bar.
When Congress created the new Bankruptcy Code, it reached an impasse on the revision of § 17. In an initial draft, the House proposed that trust fund taxes were to be limited to a two-year time bar and that excise taxes were to be limited to a one-year time bar. H.R. 8200, 95th Cong., 1st Sess. 357-358 (1977), 124 Cong.Rec. 1804 (1978). At the same time, the Senate proposed that taxes required to be collected or withheld were to be nondischargeable in their entirety, subject to no limitation. S. 2266, 95th Cong. 2d Sess. (1978), 124 Cong. Rec. 28,284 (1978).
The Senate and House also disagreed as to whether sales taxes were to be included as trust or excise taxes. The Senate report accompanying its version of Section C explicitly included sales taxes within the trust provisions. S.Rep. No. 989, 95th Cong., 2nd Sess. 68-73 (1978), U.S.Code Cong. & Admin.News 1978, p. 5787. However, the Senate proposal did not mention excise taxes at all.
After a conference committee considered the matter, the differing proposals were integrated into a compromise joint amendment. This compromise was subsequently passed by both houses to become the trust fund and excise tax provisions included in the present § 507: trust fund taxes are accorded unlimited priority while excise taxes are limited by the three-year time bar. As a result, the plain language of § 507(a)(7)(C) seems to widen the scope of the trust fund tax definition. Instead of the "any taxes . . . which the bankrupt has collected" language of § 17(a)(1)(e), the revised § 507(a)(7)(C) definition includes "any taxes required to be collected."
However, the remarks of the legislators who drafted § 507 do not consistently reflect the conclusion that Section C was broadened. The legislative history of the compromise agreement is found in the Joint Statement of Senator DeConcini and Representative Edwards, 124 Cong.Rec. 33,989 (1978) (Senate); 124 Cong.Rec. 32,350 (1978) (House). The definition of the trust fund category in the Joint Statement was retained in nearly identical language to the definition in the Senate report, except that the explicit inclusion of sales tax within its scope had been omitted. Moreover, the definition accompanying the excise tax definition of subsection E specifically included sales tax. 124 Cong.Rec. 34,016 (1978) (Senate), 124 Cong.Rec. 32,416 *444 (1978) (House). See DeChiaro, 760 F.2d at 436; Shank, 792 F.2d at 832.[4]
After reviewing the legislative history, the Rosenow court framed the issue by concluding that a "tax falls within Section C if (1) it is required to be collected or withheld, and (2) the debtor is liable for it in whatever capacity." 715 F.2d at 280. After stating that it found the Senate reports to be more reliable than the House reports, the court relied on the plain language of Section C to hold that excise taxes collected from a third party are nondischargeable. Id.
The DeChiaro court held that because Congress selected the broader Senate version of Section C over the more limited House version, "Congress intended to differentiate between two categories of excise taxes and that the trust fund provision excepts from discharge those excise taxes required to be collected from third parties." 760 F.2d at 435. The Shank court agreed with this analysis, supporting its conclusion with considerations of public policy: a "failing retailer should not be given incentive to default on sales tax obligations," which would exist if the obligations could be discharged by filing for bankruptcy three years after the default occurred. 792 F.2d at 832.
At best, the statutory language causing the overlap between Sections C and E provides, as the DeChiaro court said, "both sides with a plausible argument." 760 F.2d at 435. The commentary describing the legislative process behind the creation of § 507(a) leads to the conclusion that though there is evidence in the Joint Statement to justify the argument that the excise tax provision of Section E was intended to cover sales taxes, that evidence is not of great enough weight to outweigh the change in the statutory language that expands the definition of Section C from the actual collection requirement of § 17(a)(1) to the "required to be collected" standard of Section C. Section C as enacted was the product of the Senate's broader proposal, not the House's more limited version. DeChiaro, 760 F.2d at 436. Moreover, the Congress never made any reference to changing the law from § 17(a)(1), which be "a significant about-face in [Congress'] treatment of sales taxes collected from third parties." Shank, 792 F.2d at 833. Likewise, a holding that would allow collected sales to be limited by a three-year time bar would create the perverse incentive described in Shank of encouraging the default of sales tax obligations, which would militate against public policy of ensuring that taxes are paid.
This court finds that the N.C. sales tax is one that is required to be collected from purchasers. G.S. § 105-164.7 provides as follows:
"Every retailer engaged in the business of selling or delivering or taking orders for the sale or delivery of tangible personal property for storage, use or consumption in this State shall at the time of selling or delivering or taking an order for the sale or delivery of said tangible personal property or collecting the sales price thereof or any part thereof, add to the sales price of such tangible personal property the amount of the tax on the sale thereof and when so added said tax shall constitute a part of such purchase price, shall be a debt from the purchaser to the retailer until paid and shall be recoverable at law in the same manner as other debts. Said tax shall be *445 stated and charged separately from the sales price and shown separately on the retailer's sales records and shall be paid by the purchaser to the retailer as trustee for and on account of the State and the retailer's failure to charge to or collect said tax from the purchaser shall not affect such liability." (emphasis added).
The North Carolina statute is interpreted to characterize the sales tax as "privilege tax," Fisher v. Jones, 15 N.C.App. 737, 190 S.E.2d 663 (1972), that is imposed on the retailer, Rent-A-Car Co. v. Lynch, 39 N.C. App. 709, 251 S.E.2d 917, rev'd on other grounds, 298 N.C. 559, 259 S.E.2d 564 (1979). However, N.C. § 105-164.7 states that:
"It is the purpose and intent of this Article that the tax herein levied and imposed shall be added to the sales price of tangible personal property when sold at retail and thereby be borne and passed on to the customer, instead of being borne by the retailer."
See also, Rent-A-Car Co. v. Lynch, supra. The commerce clause's prohibition of the burdening of interstate commerce lends additional support to the conclusion that it is the buyer from whom the tax is ultimately collected. The North Carolina sales tax cannot constitutionally be imposed on interstate sales, In re Assessment of Additional N.C. & Orange County Use Taxes, 312 N.C. 211, 322 S.E.2d 155 (1984). If the tax were on the sale and a completely internal excise tax, then it would be applicable regardless of where delivery takes place. The tax operates as a tax on the purchase, in which the nature of the buyer as a purchaser in or out of North Carolina decides whether the tax will be collected by the retailer. The order of the bankruptcy court allowing the priority status to the collected sales taxes is AFFIRMED.
To consider the status of uncollected sales taxes under § 507(a) is to consider a novel interpretation of law. The court is unaware of any legislative history providing guidance on the matter. The Bankruptcy Judge noted that none of the decisions cited above addressed the status of uncollected sales taxes. Memorandum opinion at 4.
Prior to the enactment of § 507, uncollected sales taxes were not given the unlimited trust fund priority status. In re Fox, 609 F.2d 178, 182 (5th Cir.), cert. denied 449 U.S. 821, 101 S.Ct. 78, 66 L.Ed.2d 23 (1980). However, the statute involved in Fox was § 17(a)(1). The holding in Fox resulted from the language of § 17(a)(1) by which a debtor was not released from taxes "which the bankrupt has collected or withheld." Section 17(a)(1)(e) (emphasis supplied).
The language of Section C does not refer to whether the taxes have been collected, but instead applies to taxes "required to be collected or withheld." The Bankruptcy Court was correct in noting that the legislative history is silent as to an explanation for the change in language. Memorandum opinion at 6. However, the lack of an explanation for a change in language does not denigrate the fact that a change in the language has occurred. The requirement of actual collection was the provision on which the Fox court held that priority status for uncollected sales taxes was to be denied. 609 F.2d at 185. Moreover, the observation of the DeChiaro court that the broader language of the Senate version was the provision selected to become Section C supports the conclusion that the uncollected sales taxes are no longer dischargeable under Section E if they are required to be collected under Section C.
The same considerations of public policy discussed in Shank apply to uncollected sales taxes. Just as an incentive to default on taxes collected by a retailer is created by allowing discharge of state claims, an incentive not to collect taxes is created by the same limitation of liability. Under the North Carolina taxation chapter, the failure to collect sales tax does not relieve the retailer of liability for the uncollected taxes. G.S. 105-164.7; 105-253(b)(2). The retailer is required to add the sales tax to the *446 purchase price and it is a misdemeanor for a retailer to offer to absorb the sales tax for the customer. G.S. 105-164.7; 105-164.9. See, Rent-A-Car v. Lynch, 39 N.C. App. at 712; 251 S.E.2d at 920. To allow a retailer to mitigate the consequences of failing to collect sales tax by using a bankruptcy proceeding to avoid paying uncollected sales taxes older than three years would be to create an incentive as perverse as the incentive considered in Shank, 792 F.2d at 832. The purpose of the Bankruptcy Code is "to allow a fresh start to the bankrupt." Fox, 609 F.2d at 182. That purpose does not include using the Code as a shield for dishonest or devious behavior.
The so-called "trust fund" exception to discharge does not permit the payment of collected or uncollected sales taxes to be limited to three years before the filing bankruptcy. The term "trust fund" exception is a term of art encompassing more types of taxes than ordinarily would be considered under principles of trust law. The language of § 507(a)(7)(C) contemplates unlimited priority to any tax required by law to be collected from a third party, whether a trust res exists or not. Nothing in the legislative history supports the opposite inference, nor can considerations of public policy be said to mitigate against the plain language of Section C. The portion of the bankruptcy court's opinion that accords excise tax priority to uncollected sales taxes is REVERSED with instructions to accord unlimited priority to them under § 507(a)(7)(C).
SO ORDERED.
NOTES
[1] Sections 507(a)(7)(C) and 507(a)(7)(E) provide:
(a) The following expenses and claims have priority in the following order:
* * * * * *
(7) Seventh, allowed unsecured claims of governmental units, only to the extent that such claims are for
* * * * * *
(C) a tax required to be collected or withheld and for which the debtor is liable in whatever capacity;
* * * * * *
(E) an excise tax on
(i) a transaction occurring before the date of the filing of the petition for which a return, if required, is last due, under applicable law or under any extension, after three years before the date of the filing of the petition; or
(ii) if a return is not required, a transaction occurring during the three years immediately preceding the date of the filing of the petition. . . .
11 U.S.C. § 507(a)(7)(C)(E).
[2] In original form, section 507 consisted of six categories. When the 1984 amendment added a seventh category, the governmental claims exception to discharge was renumbered from section 507(a)(6) to section 507(a)(7). Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. 98-353, section 350(2), 98 Stat. 333, 358. The provision is otherwise unchanged.
[3] The term trust fund taxes is a term of art which includes taxes an employer is required to withhold from an employee's pay, such as income taxes or social security taxes. See S.Rep. No. 989, 95th Cong., 2nd Sess. 71 (1978), U.S. Code Cong. & Admin.News 1978, p. 5787. "The withheld sums are commonly referred to as `trust fund taxes,' reflecting the Code's provision that such withholdings or collections are deemed to be a `special fund in trust for the United States,' 26 U.S.C. § 7501(a)," Slodov v. United States, 436 U.S. 238, 244, 98 S.Ct. 1778, 1783, 56 L.Ed.2d 251 (1978). However, the "required to be collected or withheld" language of Section C contemplates a wider array of taxes than those to be held in a trust fund for the government. In re Rosenow, 715 F.2d 277, 279 (7th Cir.1983); DeChiaro v. New York State Tax Comm'n, 760 F.2d 432, 434 (2nd Cir.1985).
[4] In an excellent review of the legislative history of § 507, Circuit Judge Reinhardt dissented from the majority holding of Shank. Pointing out that the remarks of the Joint Statement accompanying the amended § 507 "is the legislative history of the Bankruptcy Code as enacted" (emphasis in original), Judge Reinhardt focussed on the passage in the Joint Statement that "[a]ll Federal, State or local taxes generally considered or expressly treated as excises are covered by this category, including sales taxes, estate and gift taxes, gasoline and special fuel taxes, and wagering and truck taxes." 124 Cong.Rec. 34,016 (Senate), 124 Cong.Rec. 32,416 (House), (emphasis added), quoted in Shank, 792 F.2d at 834 (Reinhardt, C.J., dissenting). The dissent also emphasized the omission of excise taxes from the Joint Statement. Id. at 835.
Two bankruptcy courts found this argument persuasive in holding that collected sales taxes were to be treated under Section E. In re Tapp, 16 B.R. 315 (Bankr.D.Alaska 1981); In re Boyd, 25 B.R. 1003 (Bankr.S.D.Ohio 1982). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919300/ | 106 B.R. 863 (1989)
In re Algeria PERKINS, Debtor.
Algeria PERKINS, Plaintiff,
v.
MID-PENN CONSUMER DISCOUNT COMPANY, Defendant.
Bankruptcy No. 88-13880S, Adv. No. 89-0664S.
United States Bankruptcy Court, E.D. Pennsylvania.
November 9, 1989.
*864 Andre H. Madeira, Community Legal Services, Inc., Law Center North Cent., Philadelphia, Pa., for debtor/plaintiff.
Edward Sparkman, Philadelphia, Pa., Standing Chapter 13 Trustee.
Edward Seave, Philadelphia, Pa., for defendant.
OPINION
DAVID A. SCHOLL, Bankruptcy Judge.
A. INTRODUCTION.
One of the philosophies which underpins the federal Truth-in-Lending Act, 15 U.S.C. § 1601, et seq. (hereinafter "the TILA"), is that, by establishing statutory damage liability of creditors to consumers in private actions, the Act will provide economic incentives to creditors to desist from widespread TILA disclosure violations which might subject them to liability. See In re Russell, 72 B.R. 855, 862 (Bankr.E.D. Pa.1987). Therefore, one might expect that, after a particular creditor is targeted for liability as the result of a certain practice, it would discontinue that practice forthwith.
No single practice of a particular creditor has been the subject of more TILA litigation in the Eastern District of Pennsylvania than the persistent failure of MID-PENN CONSUMER DISCOUNT CO., the Defendant in this proceeding (hereinafter "Mid-Penn"), to disclose that, when it refinances prior loans secured by mortgages, it not only takes a new mortgage, but it also fails to satisfy the mortgages taken to secure prior loans, leaving it with a string of multiple mortgages. Nevertheless, Mid-Penn has refused to alter its practices since the initial decision in this line of cases, Bookhart v. Mid-Penn Consumer Discount Co., 559 F.Supp. 208, 211-12 (E.D.Pa.), on January 31, 1983.
On March 3, 1989, after over six years of numerous successful lawsuits against Mid-Penn on the basis of this issue subsequent to Bookhart, the Federal Reserve Board, in accordance with its legislative rulemaking powers, promulgated an Official Staff Commentary, at ¶ 226.23(b)3, which eliminated the failure to disclose retention of multiple mortgages in the notice of the right to rescind the transaction given to consumers as a basis to rescind that credit transaction.[1] The issue raised by *865 Mid-Penn in the instant proceeding is whether this Commentary should be applied to transactions which occurred prior to March 3, 1989, i.e., retroactively. We conclude that legislative rulemaking should not be applied retroactively unless the party supporting such an application proves that the agency that promulgated the rulemaking expressly indicated an intention to apply it retroactively and the public interest and the equities between the parties are advanced thereby. Since both of these elements are absent here, we decline to apply the Commentary retroactively. Accord, Nichols v. Mid-Penn Consumer Discount Co., C.A. No. 88-1253, slip op. at 11-12 n. 2, 1989 WL 46682 (E.D.Pa. April 28, 1989) hereinafter cited as ("Nichols II"). Therefore, this decision is one more in the consistent line of cases which declines to excuse Mid-Penn for liability for the failure to correct practices which have been consistently declared illegal since the Bookhart decision.
B. PROCEDURAL AND FACTUAL HISTORY
The Debtor, ALGERIA PERKINS, filed the Chapter 13 bankruptcy case underlying this proceeding on November 7, 1988. The case has proceeded deliberately, initially due to the Debtor's slow payment of the filing fees only after a motion to dismiss the case was filed.
On May 2, 1989, Mid-Penn filed a motion seeking relief from the automatic stay due to the Debtor's failure to timely make postpetition payments to it, even under a negotiated revised payment schedule which decreased her monthly payments from $170 to $110. On June 16, 1989, after a contested hearing which ended in basic agreement by the parties, we denied this motion on the conditions that the Debtor faithfully pay the $110 monthly payments to Mid-Penn and maintain her payments to the Trustee in the future pending confirmation. The confirmation hearing, the normal course of the scheduling of which was disrupted by the dismissal motion, was scheduled on July 20, 1989.
This period of relative harmony between the parties was brief. On July 11, 1989, the Debtor shattered the truce by commencing the instant adversary proceeding against Mid-Penn. The matter was originally listed for trial on August 24, 1989, and we continued the confirmation hearing until that date. On August 24, 1989, a mutual request for a continuance until September 21, 1989, was met with the court's directive that this proceeding must be tried on that date if not amicably resolved. The confirmation hearing was continued to that date also.
On September 21, 1989, the parties appeared and indicated a desire, memorialized by our Order of that date, to present this matter on a Stipulation of Facts to be filed by September 28, 1989, and Briefs to be filed by October 12, 1989 (Debtor), and October 26, 1989 (Mid-Penn). The confirmation hearing was continued until November 14, 1989.
A very skimpy (five-paragraph) Stipulation of Facts, incorporating but five exhibits, was filed on September 28, 1989. Presumably, the parties did not wish to reiterate the richer factual admissions in Mid-Penn's Answer to the Debtor's Amended Complaint. The Debtor filed her Brief one day late, on October 13, 1989, and Mid-Penn, asserting a last-minute calendaring error, was permitted an extension until November 2, 1989, to file its Brief, and it did so on November 3, 1989.
The pleadings and Stipulation indicate that Mid-Penn had the inevitable series of loan transactions with the Debtor, including an unbroken string of refinancings. See Abele, supra, 77 B.R. at 461 (debtors had eight transactions); and In re Tucker, 74 B.R. 923, 926-27 (Bankr.E.D.Pa.1987) *866 (financial advantages to Mid-Penn in such refinancings is analyzed). Here, we are advised of loans by the Debtor from Mid-Penn, secured by mortgages, on the following dates: (1) December 21, 1984; (2) May 13, 1985; (3) December 3, 1985; and (4) November 10, 1986. After the fourth transaction, Mid-Penn satisfied the mortgage taken in connection with the third transaction on December 9, 1986. However, it did nothing to release or satisfy the mortgages taken in the first and second transactions until it mailed executed satisfaction pieces for these mortgages to the Debtor on November 12, 1987.
Among the documents delivered to the Debtor in the course of the fourth transaction was a Notice of Right to Cancel form which appears to be a facsimile of the Rescission Model Form (General), appearing as Appendix H-8 to Regulation Z, 12 C.F.R. § 226.1 et seq. (hereinafter "Reg. Z"). The first paragraph of the Notice, accordingly, reads as follows:
Your Right to Cancel:
You are entering into a transaction that will result in a (mortgage/lien/security interest) (on/in) your home. You have a legal right under federal law to cancel this transaction, without cost, within three business days from whichever of the following events occurs last: . . .
The transaction of November 10, 1986, contemplated an "Amount Financed" of $4,959.20; a Finance Charge of $3,200.80, arising due to the Debtor's making payments over 48 months at an annual percentage rate of 27 percent; and payments of $170 monthly, resulting in a Total of Payments of $8,160.00. As of the date of the parties' Stipulation, it was agreed that the Debtor had repaid a total of $3,270.[2]
On May 17, 1989, the Debtor, by her counsel's letter, purported to rescind the November 10, 1986, transaction, on the ground that Mid-Penn had violated Reg. Z, 12 C.F.R. §§ 226.23(b)(1) and (b)(4), by failing to disclose all of the security interests which it had retained and the effects of a potential rescission, presumably due, in both instances, to the failure of Mid-Penn to disclose the existence of the multiple mortgages which it had held against the Debtor. See Nichols II, supra, slip op. at 9-11; Gill v. Mid-Penn Consumer Discount Co., 671 F.Supp. 1021, 1024-25 (E.D. Pa.1987), aff'd, 853 F.2d 917 (3d Cir.1988); In re Melvin, 75 B.R. 952, 956-57 (Bankr. E.D.Pa.1987); and Tucker, supra, 74 B.R. at 930-31. True to form, however, Mid-Penn directed a letter of May 24, 1989, to the Debtor's counsel refusing to accept the notice of the rescission.
The instant litigation followed.
C. THE HISTORY OF THE VIOLATION OF TILA AND REG. Z EFFECTED BY THE FAILURE TO DISCLOSE RETENTION OF MULTIPLE MORTGAGES: MID-PENN VS. THE COURTS.
In Bookhart, supra, the district court, per the Honorable Louis C. Bechtle, held that Mid-Penn's failure to recite on its TILA disclosure statement that it retained a mortgage taken in a prior loan as of the date of a refinancing of that previous loan on January 23, 1979, as well as a mortgage taken in connection with the current loan, violated 15 U.S.C. § 1638(d)(8) of the original version of the TILA.[3]
The next important decision in this line of cases was the entry of summary judgment against Mid-Penn by our predecessor, the Honorable William A. King, Jr., in Abele on May 22, 1986. In this decision, unaccompanied by an Opinion, Judge King allowed the Debtors to rescind all eight transactions in their series of refinancings of loans from Mid-Penn on, apparently, the same grounds as Bookhart, i.e., that Mid-Penn's failure to disclose the retention of multiple mortgages in its TILA disclosure *867 statements was a material disclosure violation of the TILA, similar to the reasoning in Bookhart.
On appeal, Chief Judge Emeritus Joseph S. Lord, III, in a detailed Opinion of August 19, 1987, mostly affirmed Judge King's result in Abele, supra. Judge Lord noted that, effective October 1, 1982, Congress had amended and "simplified" the TILA. See, e.g., In re Brown, Brown v. Credithrift of America Consumer Discount Co., 106 B.R. 852, 853 (Bankr.E.D. Pa.1989); and In re Ashhurst, 80 B.R. 49, 49 n. 1 (Bankr.E.D.Pa.1987). Among the amendments effected in the "simplification" process were the addition of 15 U.S.C. § 1602(u) and 12 C.F.R. § 226.23(a)(3) n. 48, which, for the first time in the history of the TILA, undertook to define those "material disclosures" the failure of the creditor of which to accurately provide would permit the consumer to rescind. Abele, supra, 77 B.R. at 465. Conspicuously absent from this list of "material disclosures" was the failure to accurately disclose the security interests taken in the transaction. Id.
All but the last of the Abele transactions in issue had, however, pre-dated October 1, 1982. Id. at 461, 462. The debtors' attorney had conceded that he could not rescind the last transaction due to the changes in the law, effective October 1, 1982, and the complaint was accordingly amended to withdraw any claim of rescission as to this last transaction. Id. at 462. Judge King nevertheless had permitted rescission of all of the last five loans. Id. at 462-63. While Chief Judge Lord corrected the error in allowing rescission of the last transaction under the legal theory pleaded, id. at 468-69, he nevertheless affirmed the rescission of the transactions which pre-dated October 1, 1982. Id. at 463-68. In so doing, he observed that Mid-Penn had not argued that Bookhart had been incorrect in concluding that a failure to accurately disclose that security interests taken prior to October 1, 1982, was a "material disclosure" violation of the TILA. Id. at 465 n. 3. Also, he rejected Mid-Penn's efforts to argue that the post-October 1, 1982 version of the TILA should be retroactively applied to transactions pre-dating the effective date of the new law. Id. at 465-67.[4]
On April 21, 1988, the Third Circuit Court of Appeals affirmed Judge Lord's disposition in Abele without opinion.
Decided just prior to the district court decision in Abele were this court's opinions in Melvin, supra,[5] and Tucker, supra, on June 18, 1987, and July 22, 1987, respectively. In these cases, the debtors, having successfully adapted to the new version of the TILA, did not rely upon the creditors' erroneous disclosures of security interests in the respective disclosure statements given to the consumers in these respective transactions as the bases for rescissions. Rather, they relied upon deficiencies in the respective Notices of Rescission themselves, instead of the TILA disclosure statements, which remained sufficient, under the new version of TILA, to permit a rescission. See 15 U.S.C. 1635(b); 12 C.F.R. §§ 226.23(a)(3), (b); Melvin, 75 B.R. at 956; and Tucker, 74 B.R. at 930.
In ruling in favor of the consumer-debtors in Melvin and Tucker, we relied in part upon the failure of the respective creditors' notices of rescission to accurately reflect that they were retaining more than one mortgage in the transactions of which rescissions were sought, and that rescission of both of the transactions from which mortgages were retained would be necessary to eliminate all of the security interests taken against the debtors' respective residences. Melvin, 75 B.R. at 956-57; and Tucker, 74 B.R. at 931. However, we also noted that the respective creditors had violated 12 C.F.R. §§ 226.23(b)(1) and (b)(4) by utilizing the entirely wrong rescission notice form.
*868 In this vein, we noted that, in an unreported Order in In re Matzulis, Matzulis v. Mid-Penn Consumer Discount Co., Bankr. No. 86-01964G, Adv. No. 86-0691 (Bankr.E.D.Pa. January 22, 1987), we had held that, when a creditor refinances a loan in its entirety rather than merely increasing the credit advanced on an outstanding loan and takes a new mortgage instead of merely retaining the previous mortgage to sustain the new advance, the creditor properly used a rescission notice similar in content to Appendix H-8.[6] In Melvin, the creditor had used a facsimile of the rescission notice contained in Model Form (Refinancing), Appendix H-9 to Reg. Z. 75 B.R. at 956-57. In the factual matrix underling the decision in Tucker, Mid-Penn inexplicably utilized what we termed an unacceptable hybrid between Appendices H-8 and H-9, rather than the H-8 facsimile the use of which we had approved in Matzulis. 74 B.R. at 931.[7]
The next group of cases includes the decision of October 22, 1987, by District Judge Charles R. Weiner, summarily affirmed by the Third Circuit, in Gill, supra; our very similar decisions of October 23, 1987, in In re Jones, 79 B.R. 233 (Bankr.E. D.Pa.1987), rev'd in part on other grounds sub nom. Jones v. Mid-Penn Consumer Discount Co., 93 B.R. 66 (E.D. Pa.1988);[8] and of November 10, 1987, in In re Nichols, Nichols v. Mid-Penn Consumer Discount Co., Bankr. No. 86-05809S, Adv. No. 87-0600S (Bankr.E.D.Pa. Nov. 10, 1987) (hereinafter "Nichols I"), aff'd, Nichols II, supra;[9] and In re Growells, Growells v. Mid-Penn Consumer Discount Co., Bankr. No. 87-02714F, Adv. No. 87-0592F (Bankr.E.D.Pa. July 26, 1988), an unpublished decision by our colleague, Bankruptcy Judge Bruce Fox. In Growells, supra, slip op. at 8, 10; Nichols (see Nichols II, slip op. at 2); and Jones, supra, 79 B.R. at 235, 239-41,[10] Mid-Penn utilized the Appendix H-8 form in the transaction which the court ultimately rescinded which, in accordance with our decision in Matzulis, was the correct rescission notice form to use in these circumstances. However, in each case, the respective courts allowed rescission because the notice failed to disclose that Mid-Penn was retaining multiple mortgages.
On December 5, 1988, the Board of Governors of the Federal Reserve System published a series of "proposed official staff interpretations" in the Federal Register, which would, if approved, be added to its publication of Official Staff Commentary on Regulation Z Truth in Lending (hereinafter "the Commentary"). 53 Fed.Reg. 48,925. This publication was in accordance with the Administrative Procedure Act (hereinafter "APA"), 5 U.S.C. § 553(b). Included among the interpretational changes and additional was the following, 53 Fed. Reg. at 48,929:
Section 226.23 Right of Rescission
* * * * * *
23(b) Notice of Right to Rescind
* * * * * *
3. Content. * * * In disclosing the retention or acquisition of a security interest, a creditor need not separately disclose *869 multiple security interests that it may hold in the property. The creditor need only disclose that the transaction is secured by the consumer's principal dwelling, even when security interests from prior transactions remain of record and a new security interest is taken in connection with the transaction.
* * * * * *
The explanation of this proposal, included at 53 Fed.Reg. at 48,926-27, was as follows:
Section 226.23 Right of Rescission
23(b). Notice of Right to Rescind
Comment 23(b)-3 would be revised to clarify the requirements for the disclosure of security interests on rescission notices. Recently, there has been some dispute over the specificity required in such a disclosure. The revised comment would make clear that where security interests taken in connection with prior transactions remain of record and a new security interest is taken, the rescission notice need not detail each interest that the creditor may hold in the property. Rather, a simple disclosure of the fact that the transaction is secured by the consumer's principal dwelling is sufficient.
This proposed addition to the Commentary in fact became effective on March 3, 1989. Thus, if this addition to the Commentary were valid, Mid-Penn, at least as to transactions in which it entered into subsequent to March 3, 1989, and in which it used the proper rescission notice form, was relieved of exposure to rescission (if not liability for a violation of 15 U.S.C. § 1638(a)(9)),[11] despite the rulings of three judges of this court, three district judges, and two panels of the Court of Appeals to the contrary.[12]
The principal issue presented in this proceeding is whether the new Commentary applies as to transactions prior to March 3, 1989.[13] This is not an issue of first impression. The Nichols II matter was on appeal as of March 3, 1989, when the amendment to the Commentary was promulgated. In dismissing Mid-Penn's contention that the amendment to the Commentary should be applied retroactively, Judge Bechtle, deciding Nichols II consistently with his earlier Opinion in Bookhart,[14] stated, slip op. at 12 n. 2, as follows:
Mid-Penn presently argues that this new commentary, along with the other points raised in its previous briefs, shows that the bankruptcy court erred on the *870 disclosure issue. The Court does not think that this change in the agency's commentary rectifies the aforementioned problem with Mid-Penn's arguments on this issue. Mid-Penn was obligated to satisfy the disclosure requirements outlined in Reg. Z as it existed at the time of the November, 1983 loan transaction. A subsequent change in the agency's official commentary concerning regulations it has promulgated does not exonerate Mid-Penn's actions in this regard.[15]
We note that Mid-Penn, in its Brief, fails to cite or attempt to distinguish Nichols II. Nor does it cite any of the decisions cited at pages 866-68 supra except the unreported Order of this court in its favor in Matzulis. This apparent blindness to the strengths of arguments against it is reflected by Mid-Penn's intractability in refusing to disclose that it retains multiple mortgages, despite over six years of consistent decisions holding that its failure to do so violates the TILA. As Nichols II emphasizes, it is only the failure to disclose these multiple mortgages, not the mere taking of same, which triggers consequences under the TILA. Nichols II, slip op. at 9-10. The same sort of blindness to the true underlying issue pervades Mid-Penn's argument in its Brief that the Commentary should be applied retroactively.
D. SINCE THE PROMULGATION OF THE AMENDMENT TO THE COMMENTARY WAS "LEGISLATIVE RULEMAKING," AND THERE IS NO EXPRESSION FROM THE AGENCY PROMULGATING THE AMENDMENT THAT IT SHOULD BE APPLIED RETROACTIVELY, NOR ANY STRONG PUBLIC INTEREST SERVED BY SUCH AN INTERPRETATION, THE COMMENTARY SHOULD NOT BE APPLIED RETROACTIVELY.
Mid-Penn's argument relating to retroactivity is articulated in the following paragraph of its Memorandum of Law Against Debtor's Complaint, at 7:
Clearly this revision to the Official Staff Commentary is an Interpretative Rule under the Administrative Procedures Act 5 U.S.C. Section 551, et seq. An interpretative Rule, as distinguished from a substantive or legislative Rule clarifies or explains existing law or regulation. See McKenzie v. [Bowen], 787 F.2d 1216, 1222 (8th Cir.1986). Section 553(d) of the Act differentiates between substantive rules and interpretive rules by removing the requirement of publishing the proposed rule at least thirty (30) days before its effective date.
The major flaw in this argument is that the revision to the Commentary of March 3, 1989, was not an "interpretive rule." As the APA itself indicates, the requirement of publication in the Federal Register does not apply as to an "interpretive rule." 5 U.S.C. § 553(d)(2). In fact, the sole issue in McKenzie, supra, 787 F.2d at 1222-23, as in the only other authority cited by Mid-Penn on this point, Energy Reserves Group, Inc. v. Department of Energy, 589 F.2d 1082, 1099-1100 (Temp.Emer.Ct.App. 1978), was whether the regulation in issue was an "interpretive rule" such that publication in the Federal Register need not have preceded its promulgation.
The amendment to the Commentary in question was, however, promulgated only after full compliance with the publication requirements of 5 U.S.C. § 553(b). See 53 Fed.Reg. 48,925 (Dec. 5, 1985); and pages 868-69 supra. Therefore, it appears clear that, in the view of the agency promulgating it, the amendments to the Commentary were not mere interpretive rules within the scope of 5 U.S.C. § 553(d)(2).
It is well established that the two principle distinctions between "interpretive rules" and "legislative rules" are whether *871 (1) the procedures of 5 U.S.C. § 553(b) are deemed to apply; and (2) the rule has the "force of law." See, e.g., American Trucking Ass'n, Inc. v. United States, 688 F.2d 1337, 1341-42 (11th Cir.1982); and Production Tool Corp. v. Employment & Training Adm'n, 688 F.2d 1161, 1165-66 (7th Cir.1982). Accord, Huberman v. Perales, 884 F.2d 62, 68 (2d Cir.1989); and National Latino Media Coalition v. Federal Communications Comm'n, 816 F.2d 785, 787-88 (D.C.Cir.1987). Since it adhered to them, the Federal Reserve Board obviously deemed the procedures of 5 U.S.C. § 553(b) to apply to the instant rulemaking. Further, if this Commentary is to have the effect of overruling the unanimous decisions of two Circuit Court panels, three district court judges, and three bankruptcy judges in this district, the Commentary amendment would appear to have the force of substantive law. Therefore, we conclude, with little difficulty, that the promulgation of the Commentary revisions of March 3, 1989, was "legislative rulemaking" and not, as Mid-Penn contends, mere "interpretive rulemaking."[16]
Having reached this conclusion, we note that the analysis of the Debtor on this issue is somewhat flawed as well. She relies heavily on cases such as Sam v. United States, 682 F.2d 925, 930-32, 230 Ct.Cl. 596 (Ct.Cl.1982), which address the issue of retroactivity in the context of "adjudicative rulemaking," i.e., rulemaking through the adjudicative decisionmaking process rather than through the processes of the APA. See, e.g., Securities & Exchange Comm'n v. Chenery Corp., 332 U.S. 194, 203, 67 S.Ct. 1575, 1580, 91 L.Ed. 1995 (1947); Daughters of Miriam Center, supra, 590 F.2d at 1259-60; Lodges 743 & 1746, Int'l Machinists, etc. v. United Aircraft Corp., 534 F.2d 422, 452-53 (2d Cir. 1975); and Retail, Wholesale and Dep't Store Union, etc. v. National Labor Relations Bd., 466 F.2d 380, 387-93 (D.C.Cir. 1972) (these cases each recite considerations to be addressed in determining retroactivity of "adjudicative rulemaking"). But see pages 872-73 n. 17 infra (factors for deciding whether to apply "adjudicative rulemaking" retroactively would not support retroactive application of the Commentary).
Having dispelled the misimpression of both parties as to the body of administrative law which we believe is at issue, i.e., that body addressing the retroactivity of "legislative rulemaking," we find the applicable principles readily at hand. Defining the term "rule," as applied to "legislative rulemaking," the APA, at 5 U.S.C. § 551(4), states as follows:
§ 551. Definitions
For the purposes of this subchapter
. . . . .
(4) "rule" means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing; . . . (emphasis added).
There is a difference of opinion as to whether the language emphasized above, having defined legislative rules as having only "future effect," bars legislative rules from being applied retroactively. Compare Bowen v. Georgetown University Hospital, ___ U.S. ___, 109 S.Ct. 468, 475-76, 102 L.Ed.2d 493 (1988) (Scalia, J., conc. op.); and Georgetown University Hospital v. Bowen, 821 F.2d 750, 757 (D.C.Cir.1987), aff'd, ___ U.S. ___, 109 S.Ct. 468, 102 *872 L.Ed.2d 493 (1988) (retroactive effect is foreclosed) with Colyer v. Harris, 519 F.Supp. 692, 697-99 (S.D.Ohio 1981) (retroactive effect is not foreclosed, but it is permissible only in those situations where legislation might be applied retroactively).
Without addressing this issue directly, except insofar as the Court failed to expressly adopt the "absolutist" position articulated in the opinion of Justice Scalia and the Circuit Court, the majority of the court, per Justice Kennedy, states, in Georgetown, 109 S.Ct. at 471, as follows:
Retroactivity is not favored in the law. Thus, Congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result. E.g., Greene v. United States, 376 U.S. 149, 160, 84 S.Ct. 615, 621-22, 11 L.Ed.2d 576 (1964); Claridge Apartments Co., v. Commissioner, 323 U.S. 141, 164, 65 S.Ct. 172, 185, 89 L.Ed. 139 (1944); Miller v. United States, 294 U.S. 435, 439, 55 S.Ct. 440, 441-42, 79 L.Ed. 977 (1935); United States v. Magnolia Petroleum Co., 276 U.S. 160, 162-63, 48 S.Ct. 236, 237, 72 L.Ed. 509 (1928). By the same principle, a statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless the power is conveyed by Congress in express terms. See Brimstone R. Co. v. United States, 276 U.S. 104, 122, 48 S.Ct. 282, 287, 72 L.Ed. 487 (1928) ("The power to require readjustments for the past is drastic. It . . . ought not to be extended so as to permit unreasonably harsh action without very plain words"). Even where some substantial justification for retroactive rulemaking is presented, courts should be reluctant to find such authority absent an express statutory grant.
We are bound to follow the principles of law thus enunciated in Georgetown in deciding whether to apply the amendments to the Commentary in issue retroactively, contrary to Mid-Penn's contentions that the principles of Georgetown should not be applied here because the promulgation of the Commentary allegedly constituted only "interpretive rulemaking." We observe that the principles of Georgetown suggest that the general presumption against retroactivity applied to interpretation of legislation should be applied here. See, e.g., United States v. Security Industrial Bank., 459 U.S. 70, 79, 103 S.Ct. 407, 412-13, 74 L.Ed.2d 235 (1982); and In re Franklin Pembroke Venture II, 105 B.R. 276, 279-80 (Bankr.E.D.Pa. Oct. 5, 1989).
Applying these principles to the question of whether the instant Commentary should be applied retroactively is rather simple. The language of the Commentary, even as explained in the Federal Register, 53 Fed. Reg. 48,926-27, see pages 868-69 supra, provides no indication that its terms should be applied retroactively. Also, there is no "substantial justification," such as the public interest found present in Chenery Corp., to justify retroactive effect of "adjudicative rulemaking" here. 332 U.S. at 202-08, 67 S.Ct. at 1580-83.[17] The general *873 rule disfavoring retroactive application of the Commentary amendment must therefore be followed here.
We note, finally, that the result not to apply the amendment to the Commentary to transactions consummated prior to its enactment is consistent with other rulings in analogous situations, as well as the ruling on this precise point by Judge Bechtle in Nichols II, supra, slip op. at 11-12 n. 2. In Security Industrial Bank, supra, the court refused to apply 11 U.S.C. § 522(f)(2) to contracts executed prior to the enactment of the Code, stating that to do so might impact upon property rights otherwise settled prior to its enactment in violation of Art. I, § 8, cl. 4 of the Constitution, i.e., the "Takings Clause." 459 U.S. at 79-80, 103 S.Ct. at 412-13.
In Abele, over the arguments to the contrary of Mid-Penn, Chief Judge Emeritus Lord applied the new restrictive definition of "material disclosures" of the TILA included in the amendments to TILA, prospectively only, i.e., only as to contracts executed after the effective date of the TILA amendments. 77 B.R. at 465-67. Thus, Judge Lord left intact the implicit holding of Bookhart that the newly-enacted definition of "material disclosures" included in the TILA amendments would not be applied to contracts which pre-dated the amendments. We note that the prior version of TILA was silent on the issue of what constituted "material disclosures." Nevertheless, the judge-made rule in Bookhart that a failure to disclose the retention of multiple security interests was held not to be overturned by the subsequent statement of Congress itself, in the TILA amendments, which expressly excluded such disclosures from the scope of "material disclosures."[18]
The instant case presents, if anything, an easier question than Judge Lord faced in Abele. The Commentary amendment is, we believe, a further refinement, by the Federal Reserve Board and not by Congress, on the scope of what disclosure violations are sufficiently material to constitute grounds for rescission, which was the same subject matter as was considered in Abele. Since the narrowing of the scope of "material disclosures" was not retroactively applied in Abele, in a result affirmed by the Court of Appeals, we reject Mid-Penn's similar contention that we should apply the instant Commentary Amendment retroactively.
In retrospect, Mid-Penn had no reason to conclude, at the time that this transaction occurred on November 10, 1986, that its failure to disclose to the Debtor, in the notice to her of her rescission rights, that it retained multiple mortgages against her residence would not constitute a basis for her to rescind. It had received, as of that date, two decisions in the long line of cases, see pages 866-68 supra, i.e., Bookhart and this court's Abele decision, which consistently ruled against it on this point. It nevertheless chose to take the chance that failing to disclose this element to the Debtor was worth the risk of liability for future TILA violations. Having taken the risk of being cited for this violation, and having now had this violation asserted against it, Mid-Penn should not be able to invoke, in its defense, a Commentary which was not even proposed until two years after the transaction. Allowing Mid-Penn impunity for its actions would allow it to unfairly escape its attempts to frustrate the TILA goal, articulated at page 864 supra, of inducing voluntary compliance with its provisions by economic incentives.
We will therefore not apply the amendment to ¶ 226.23(b)3 of the Commentary, promulgated on March 3, 1989, to the instant transaction.
*874 E. SINCE THE DEBTOR'S RESCISSION OF THE TRANSACTION OF NOVEMBER 10, 1986, WAS VALID, MID-PENN'S REFUSAL TO HONOR THE RESCISSION TRIGGERS AT LEAST THOSE REMEDIES DEMANDED BY THE DEBTOR, I.E., A DECLARATION OF RESCISSION; INVALIDATION OF MID-PENN'S SECURITY IN THE DEBTOR'S RESIDENCE; REDUCTION OF MID-PENN'S CLAIM TO AN UNSECURED CLAIM FOR THE UNPAID PRINCIPAL BALANCE OF $1,579.20; $1,000.00 IN STATUTORY DAMAGES; AND REASONABLE ATTORNEYS' FEES TO THE DEBTOR'S COUNSEL.
Having overcome the only novel impediment in her path to the remedies due to her for effecting a valid rescission of the transaction of November 10, 1986, which Mid-Penn expressly declined to acknowledge, the Debtor is entitled to the full panoply of relief accorded to similarly-situated consumers in Growells, supra, Order, ¶ s 2-7; Jones, supra, 79 B.R. at 241; and Tucker, supra, 74 B.R. at 932-34.
Clearly, without the revised Commentary as a shield, Mid-Penn has no defenses. In its Brief, it attempts to attach significance to the fact that it satisfied the mortgage from the December 3, 1985, transaction "within 26 days" from the date of the November 10, 1986, transaction. We believe that the time-span was in fact 29 days (November 10, 1986, to December 9, 1986). However, even if the time-period were "only" 26 days, we are not prepared to say that any period of hesitation in satisfaction of the prior mortgage beyond the three-day rescission period is reasonable. See Nichols I, supra, slip op. at 4-5. However, assuming arguendo that we found the satisfaction of the December 3, 1985, mortgage sufficiently timely to discount Mid-Penn's retention of that mortgage as a TILA violation, there is no dispute that the mortgages from the December 21, 1984, and May 13, 1985, transactions remained of record for more than a year after the November 10, 1986, transaction, as Mid-Penn did not send the satisfaction pieces for these mortgages to the Debtor until November 12, 1987.
Therefore, under the authority of all of the cases cited at pages 867-868 supra, from Tucker and thereafter, Mid-Penn has violated Reg. Z., 12 C.F.R. §§ 226.23(b)(1) and (b)(4), by failing to disclose its retention of at least two of the mortgages taken against the Debtor's residence in the transaction of November 10, 1986.
In Brown, supra, at 861-62, we recently revisited the consequences of an effective rescission under the TILA which the creditor refuses to acknowledge or properly act upon within the requisite 20-day period allotted for doing so, pursuant to 15 U.S.C. § 1635(b), 12 C.F.R. § 226.23(d)(2). There, we noted that the consequences are multifaceted. Id. at 861. Firstly, any remaining security interests taken by Mid-Penn against the Debtor's residence must be terminated. 15 U.S.C. § 1635(b), 12 C.F.R. § 226.23(d)(1). See Brown, supra, at 861; In re Celona, 90 B.R. 104, 115 (Bankr.E.D.Pa.1988), aff'd sub nom. Celona v. Equitable National Bank, 98 B.R. 705 (E.D.Pa.1989); In re Gurst, 79 B.R. 969, 978 (Bankr.E.D.Pa.1987), appeal dismissed, C.A. No. 88-2092 (E.D.Pa. Aug. 8, 1988), aff'd, 866 F.2d 1410 (3d Cir.1988); and 88 B.R. 57 (E.D.Pa.1988); Melvin, supra, 75 B.R. at 958; and Tucker, supra, 74 B.R. at 923. The secured claim of Mid-Penn is thus eliminated, and it is reduced to the status of an unsecured creditor.
Secondly, the Debtor is relieved of any liability to pay any finance charges imposed in the transaction. See Brown, supra, at 862; Celona, supra, 90 B.R. at 115, Melvin, supra, 75 B.R. at 958; and Tucker, supra, 74 B.R. at 932. Thus, all of the Debtor's payments, totalling at least $3,380, see page 866 n. 2 supra, may be deducted from the amount financed of $4,959.20, resulting in Mid-Penn's being left with an unsecured claim of but $1,579.20.
The only other remedy requested by the Debtor was a statutory penalty of $1,000 arising from Mid-Penn's violation of the *875 TILA in failing to respond to her valid rescission of the loan transaction in appropriate fashion and reasonable attorneys' fees and costs for her counsel. Clearly, these elements of damages are allowable. See Brown, supra, at 862; Celona, supra, 90 B.R. at 115-16; Gurst, supra, 79 B.R. at 979, 980; Melvin, supra, 75 B.R. at 958, 960; and Tucker, supra, 74 B.R. at 932-33.
Other remedies potentially recoverable by the Debtor were not requested and therefore must be deemed waived. See Brown, supra, at 862; Celona, supra, 90 B.R. at 115; and Tucker, supra, 74 B.R. at 933. The most apparent of these would have been a claim of recoupment of $1,000 against Mid-Penn's remaining unsecured claim in light of the disclosure violations on the TILA disclosure statement issued in connection with the November 10, 1986, transaction. See Celona, supra, 90 B.R. at 115; Melvin, supra, 75 B.R. at 959; and Tucker, supra, 74 B.R. at 932. Less obvious, but probably equally viable, would have been a claim that the entire loan balance be stricken. See Gill, supra, 671 F.Supp. at 1026; Gurst, supra, 79 B.R. at 979; and Tucker, supra, 74 B.R. at 933. An argument could even have been made that the payments remitted to Mid-Penn by the Debtor should be returned to her. See Gurst, supra, 79 B.R. at 979; and Tucker, supra, 74 B.R. at 933. However, the significant document for ascertaining the relief sought by the Debtor, i.e., her Amended Complaint, claims only the elements of damages recited in the prior three paragraphs and "treble damages under 73 P.S. § 201-9.2," the Pennsylvania statute regulating unfair and deceptive acts and practices (hereinafter "UDAP"). These claims were totally undeveloped in the record and are not addressed in the Debtor's Brief. We therefore can award no damages to the Debtor based upon UDAP.
F. CONCLUSION
An Order consistent with the conclusions expressed in this Opinion will be entered. Our Order also emphasizes our intention to make the Confirmation hearing continued until November 14, 1987, the last.
ORDER
AND NOW, this 9th day of November, 1989, upon consideration of the Debtor's Amended Complaint and Answer thereto and the Stipulation of Facts and exhibits thereto which constitute the record in this proceeding, and the parties' respective Briefs, it is hereby ORDERED AND DECREED that:
1. Judgment is entered in favor of the Plaintiff-Debtor, ALGERIA PERKINS (hereinafter "the Debtor"), and against the Defendant, MID-PENN CONSUMER DISCOUNT COMPANY, (hereinafter referred to as "Mid-Penn").
2. It is DECLARED that the Debtor properly exercised her right to rescind the transaction between the parties of November 10, 1986, in issue and that therefore this contract is deemed RESCINDED.
3. The Claim of Mid-Penn against the Debtor is reduced to an unsecured claim in the amount of $1,579.20.
4. Mid-Penn is directed to satisfy the mortgage which it has taken against the Debtor's residential real estate at 1937 Plymouth Street, Philadelphia, Pennsylvania 19138, within fifteen (15) days from the date of this Order.
5. Mid-Penn shall pay the sum of $1,000.00 to the Standing Chapter 13 Trustee, Edward Sparkman, Esquire, as damages pursuant to 15 U.S.C. § 1640(a)(2)(A)(i). The said Trustee shall determine whether this sum may be claimed as part of the Debtor's exemptions, and, if it may be, he shall forward this sum to the Debtor forthwith.
6. The parties are urged to attempt to agree upon reasonable attorneys' fees and costs which are due to the Debtor's counsel, per 15 U.S.C. § 1640(a)(3). If this matter is not resolved within fifteen (15) days, the Debtor's counsel may, within thirty (30) days of this Order, file a Motion requesting such fees, said Motion to be procedurally in conformity with Meade Land and Development Co., Inc., 527 F.2d 280 (3d Cir.1975); and In re Mayflower Associates, 78 B.R. *876 41 (Bankr.E.D.Pa.1987). However, if the Debtor's counsel has made a reasonable request for such fees which is refused, the said counsel may recover compensation for time spent on the fee application as well.
7. The hearing on Confirmation of the Debtor's Chapter 13 Plan of Reorganization in her main bankruptcy case remains scheduled on
TUESDAY, NOVEMBER 14, 1989, at 10:00 A.M. in Courtroom No. 2 (Room 3718), United States Court House, 601 Market Street, Philadelphia, PA 19106.
8. No further continuances of this hearing will be favored.
NOTES
[1] This Commentary would not apparently affect the established law that the failure of Mid-Penn to disclose multiple mortgages is an inaccurate disclosure of the security interests taken which are set forth in the disclosure statement itself. See 15 U.S.C. §§ 1638(a)(9), 1640(a)(3). Rather, the Commentary appears to be a refinement of the elimination of the erroneous disclosure of the security interests taken in a transaction from the list of "material disclosures" of the TILA which would justify a rescission. See 15 U.S.C. § 1602(u); Abele v. Mid-Penn Consumer Discount Co., 77 B.R. 460, 462-63 & n. 1, 465-67 (E.D.Pa.1987), aff'd, 845 F.2d 1009 (3d Cir.1988); and page 869 infra.
[2] Between the date of the Stipulation on September 28, 1989, and the date of this Opinion at least one monthly payment of $110 was due and presumably paid. Thus, the payment total should now be at least $3,380.
[3] This provision required a description of any security interest held or retained in the transaction. The present recodification of this Act section is 15 U.S.C. § 1638(a)(9).
[4] Since the decision in Bookhart was rendered after the effective date of the amendments to TILA, it can be perceived that the court, in that case as well, implicitly refused to apply the new version of TILA retroactively.
[5] Melvin is one of the few cases in this line which did not involve Mid-Penn. The defendant in that proceeding was Beneficial Consumer Discount Co.
[6] This was the sole issue raised in Matzulis and hence Mid-Penn was successful in that proceeding.
[7] The March 3, 1989, Commentary would obviously not permit a creditor to utilize the incorrect model form. We continue to believe that the H-9 form is appropriately used only in what appears to be the relatively rare situation where the mortgage taken in the original loan transaction is retained as security and the new transaction hence involves only a supplement to the original loan. Compare Melvin, 75 B.R. at 957 (the creditor had structured one of the loans, the 1978 transaction, in this manner). We also note the use of the H-8 form in the crucial November 10, 1986, transaction with the Debtor here. Contrary to the Debtor's claims that Mid-Penn should have used the H-9 form, we continue to believe that Matzulis was correctly decided and we reject that claim.
[8] The "other grounds" were that we were found not to have been sufficiently generous in measuring the attorneys' fees due to the debtor from Mid-Penn.
[9] We did not publish the Memorandum which explained our Nichols decision because the issues presented were the mirror image of those in Jones, supra, which we had published.
[10] It is impossible to ascertain what form was used from the recitation of the facts in Gill, supra.
[11] See pages 864-65 n. 1 supra.
[12] The only decision arguably in this line of cases decided in favor of Mid-Penn was our decision in Matzulis. However, in that case, the debtor focused solely upon the alleged use of the wrong rescission form, and did not reference any undisclosed retention of multiple security interests in that transaction.
[13] The Debtor raises several other issues, including the following of which we make the following respective dispositions: (1) The Commentary applies only to transactions in which the Appendix H-9 rescission notice form is utilized. We see no reason to so limit the intended scope of the Commentary. It does address mortgages from "prior transactions." However, as our decision in Matzulis, Melvin, and Tucker make clear, the Appendix H-8 form may be appropriate to use even when there has been a "prior transaction;" (2) The use of the Appendix H-8 form was improper. We disagree on the basis of our holdings in Matzulis, Melvin, and Tucker; (3) The Commentary should not be followed because it is "demonstrably irrational," citing Securities Industry Ass'n v. Board of Governors of Federal Reserve System, 468 U.S. 137, 142-44, 104 S.Ct. 2979, 2982-83, 82 L.Ed.2d 107 (1984). See also, e.g., Director, Office of Workers' Compensation Programs v. Gardner, 882 F.2d 67, 70-72 (3d Cir.1989). The difficulties with this contention, despite its logical appeal due to the inconsistency of the Commentary with unanimous decisions of the local courts, are as follows: (a) The regulation in issue here was promulgated pursuant to the Federal Reserve Board's legislature rulemaking powers, see page 871 n. 16 infra and the cases cited therein, which allow it to be accorded a greater degree of deference than the interpretative rules in issue in Security Industry Ass'n, supra; and Gardner, supra; and (b) The Supreme Court, in Anderson Bros. Ford v. Valencia, 452 U.S. 205, 219, 101 S.Ct. 2266, 2273, 68 L.Ed.2d 783 (1982); and Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566-70, 100 S.Ct. 790, 797-99, 63 L.Ed.2d 22 (1980), appears to suggest that the Federal Reserve Board is accorded particular deference in the area of interpretation of the "highly technical" TILA.
[14] See page 867 n. 4 supra, in which we point out that Bookhart, in which the court held that the failure to properly disclose the security interest taken by Mid-Penn was a "material violation" of the TILA, was decided after the effective date of the amendment to the TILA expressly stating, for the first time, that such a violation was not a "material violation" of the TILA. The transaction in Bookhart, of course, predated October 1, 1982.
[15] We note that Mid-Penn has appealed the Nichols decision to the Third Circuit Court of Appeals, at No. 89-1445, before which it is scheduled for oral argument on November 17, 1989.
[16] Were we to conclude that the promulgation of the Commentary amendments was mere "interpretive rulemaking," we might be disinclined to give the Commentary amendments a great degree of deference. See, e.g., National Latino, supra, 816 F.2d at 789-90; Pennzoil Co. v. United States Dep't of Energy, 680 F.2d 156, 171-72 (Temp.Emer.Ct.App.1982); and Daughters of Miriam Center for the Aged v. Mathews, 590 F.2d 1250, 1258-59 (3d Cir.1978). See pages 869-70 n. 13 supra.
[17] Even if we considered the "fair and equitable" standard set forth in Chenery Corp. or the five-pronged test set forth in International Machinist, supra, 534 F.2d at 453, and Retail, Wholesale, supra, 466 F.2d at 390, to determine whether the rulemaking here, assuming arguendo it were "adjudicative rulemaking," should be applied retroactively, retroactive application of the Commentary would not be justified. The five-prong test stated therein, id., is as follows: "(1) whether the particular case is one of first impression, (2) whether the new rule represents an abrupt departure from well established practice or merely attempts to fill a void in an unsettled area of the law, (3) the extent to which the party against whom the rule is applied relied on the former rule, (4) the degree of the burden which a retroactive order imposes on a party, and (5) the statutory interest in applying a new rule despite reliance of a party on the old standard." The instant amendment to the Commentary does not address a matter of first impression, but rather concerning an issue established for six years contrary to the portion of the Commentary amendment in the local caselaw. The departure from these prior authorities, though abrupt, favors Mid-Penn. Prior to the promulgation of the Commentary amendment, Mid-Penn had no basis on which to rely for exoneration for declining to disclose its taking of multiple mortgages in its rescission notice. Therefore, the Commentary lightens the burden on Mid-Penn. Given the previous standards, Mid-Penn had every reason to assume that its actions in failing to disclose its retention of multiple mortgages could result in material TILA violations, justifying rescission. Hence, there is no equitable basis to reward Mid-Penn for its past failure to adhere to a line of decisions against it by granting it the windfall of retroactive invalidation of the consistent holdings in these cases.
[18] This analogy to the reasoning of Abele completely answers Mid-Penn's argument that the previous silence of the TILA and Reg. Z on the issue of the impact of taking multiple mortgages requires that we consider the rulemaking "interpretive" and apply it retroactively. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919249/ | 106 B.R. 257 (1989)
In re David Kenneth WEEKS, SSN XXX-XX-XXXX, Debtor.
Bankruptcy No. 89-70293.
United States Bankruptcy Court, E.D. Oklahoma.
October 11, 1989.
*258 Ronald F. Walker, Okmulgee, Okl., for debtor.
Kenneth G.M. Mather, Tulsa, Okl., trustee.
ORDER
JAMES E. RYAN, Bankruptcy Judge.
On this 11th day of October, 1989, an Objection to Exemption filed by the Chapter 7 Trustee (Docket Entry # 7) with a Response by the Debtor (Docket Entry # 11), Joint Stipulations of Fact submitted by the parties on May 22, 1989 (Docket Entry # 12) and a Supplemental Brief on Hardship Distributions filed by the Chapter 7 Trustee (Docket Entry # 21) came before this Court for consideration.
A hearing was conducted on July 19, 1989 for the purpose of receiving oral argument on the legal issues in this matter with Kenneth G.M. Mather, the Chapter 7 Trustee, and Ronald Walker on behalf of the Debtor, appearing and presenting argument. It is agreed by the parties that there are no factual disputes and thus, this matter may be resolved upon the Joint Stipulations of Fact submitted and the legal argument received.
After review of the above-referenced pleadings and consideration of the arguments of counsel, this Court does hereby enter into the following Findings of Fact and Conclusions of Law in this core proceeding:
STATEMENT OF ISSUE
The parties to this action present two unique legal questions for resolution, to-wit:
1. Whether the Employee Retirement Income Security Act program (ERISA) qualified retirement and thrift plan in which the Debtor participates is property of the bankruptcy estate; and if so,
2. Whether the same plan can be validly exempted from the estate by the Debtor pursuant to the Oklahoma exemption statutes in light of the provisions of the federal statute creating and governing ERISA qualified retirement plans.
FINDINGS OF FACT
1. The Debtor claims ownership through the schedules filed in this case of an ERISA qualified retirement plan known as the National Oil Well Retirement and Thrift Plan (hereafter referred to as "Plan.") The Plan bears a service date of April 2, 1984.
2. The Plan is comprised of two accounts. As of September 30, 1988, the retirement account contained $835.45 and the thrift account contained employee contributions of $569.14 and employer matching funds of $284.58. Thus, the total proceeds in the Plan on the date last available was $1,689.17. The Debtor is one hundred percent vested in this Plan.
3. Normally, under the terms of the Plan, the Debtor/employee cannot withdraw pre-tax contributions prior to age 59½, except in instances of retirement or disablement. However, withdrawals are allowed for financial emergencies or hardships, *259 such as the education of children, purchase of a home or large medical expenses. These withdrawals are subject to the following conditions:
(a) The amount withdrawn will be taxed;
(b) The withdrawal must be approved by the Administrative Committee;
(c) an additional ten percent income tax will be assessed if the Debtor/employee is under the age of 59½, unless specific conditions exist (such as, if withdrawal is arranged through a divorce settlement or a domestic relations order of some type).
Withdrawal of after-tax employee contributions may be made on a quarterly basis. No requirement for repayment of these withdrawals appears in the terms of the Plan.
4. The Debtor filed a voluntary Petition seeking relief under Chapter 7 of the United States Bankruptcy Code on March 21, 1989, listing the Plan in the initial schedules filed, thereby including the Plan as property of the estate. The Debtor further claimed the Plan as exempt pursuant to the Oklahoma Statutes.
5. The Trustee challenges the Debtor's ability to exempt the Plan from the estate.
The Trustee relies on recent case law developing in this area in urging this Court to find that the ERISA statute by its terms preempts the Oklahoma state statutes granting an exemption on retirement plans. If successful, the Trustee seeks to stand in the place of the Debtor and assume all of the rights and benefits under the terms of the Plan in accordance with his position as representative of the estate pursuant to 11 U.S.C. § 541.
6. The Debtor asserts two avenues of contention in contravention to the Trustee's position. First, the Debtor claims that the Plan may be excluded from the estate pursuant to 11 U.S.C. § 541. With this position, the Debtor contends that the property would never enter the bankruptcy estate and would not be available to the Trustee, disregarding his voluntary inclusion. Second, the Debtor argues that if the Plan is in fact property of this estate, the Oklahoma exemption statutes are valid, effective and not subject to the preemption doctrine due to the ability of the various states to "opt out" of the federal exemptions and create exemptions different from and not necessarily contemplated by the federal Bankruptcy Code at 11 U.S.C. § 522.
CONCLUSIONS OF LAW
The matter brought before this Court today creates perplexing legal issues that have only been addressed by a smattering of Courts throughout the nation. The potential devastating and far-reaching effect to all debtors in bankruptcy of determining a retirement plan as property of the estate and disallowing its exemption has caused this Court to contemplate extensively on this matter.
I. CREATION OF THE ESTATE
A. Upon the filing of a bankruptcy petition, an estate is created consisting of all the debtor's property. A Trustee is appointed to whom all of this property is transferred. The Trustee serves as the custodian of the property and as a representative of the estate, inuring to all of the debtor's rights and benefits associated with the property transferred to him. This transfer is subject to a valid claim of exemption upon assertion by the debtor.
The concept of creating an estate containing all of the debtor's property is relatively new to bankruptcy. Under the Bankruptcy Act of 1898, the Trustee was vested with title to all of the debtor's property except for those items which were subject to a valid claim of exemption by the debtor. Thus, exempt property never entered the estate and the possession of such property was never transferred to the Trustee. See § 70 of Bankruptcy Act of 1898. Under the current Bankruptcy Code, however, title to all of the debtor's property is transferred to the estate for which the Trustee is the custodian and representative. Even exempt property enters the estate and is later removed from the property in the Trustee's possession and returned to the debtor upon a valid claim of exemption. See 11 U.S.C. § 541 and § 522. This distinction, *260 while it might appear subtle, has a substantial effect upon the case at bar. Should the Plan be determined to be nonexempt, the Trustee would not in fact be acting as a creditor seeking to garnish the Plan, since the property was transferred to the estate upon the filing of the Petition by operation of law. This would prevent the restriction on such garnishment contained in the ERISA statutes from interfering with the Trustee's position. See 26 C.F.R. § 1.401(a)-13(b)(1) (1982) cited and discussed hereinbelow.
II. PROPERTY OF THE ESTATE
B. The threshold issue which this Court must address is whether the subject property (the Plan) is excluded from the bankruptcy estate. Excluded property never enters the estate, and therefore never is transferred to the Trustee. Although the Debtor effectively admitted that the Plan was property of this estate by listing it in his Schedules, this Court will nonetheless examine this issue since the argument was asserted by the Debtor at oral argument.
Property of the estate is comprised of "all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C. § 541(a)(1). The Plan at issue falls within this definition by representing the Debtor's legal and equitable interest in property, being a contractual right. Therefore, the rights and obligations created by the Debtor pre-Petition by entering into the Plan are transferred to his estate upon the filing of this case.
Some question has arisen as to whether the ERISA statutes allow this type of transfer of rights in the Plan to the Trustee. The ERISA statutes require that, in order for a plan to obtain tax qualified status, it must provide that benefits not be "anticipated, assigned (either at law or in equity), alienated or subject to attachment, garnishment, levy, execution or other legal or equitable process." 26 C.F.R. § 1.401(a)-13(b)(1) (1982). However, the Bankruptcy Code states that
". . . an interest of the debtor in property becomes property of the estate . . . notwithstanding any provision in an agreement, transfer instrument, or applicable non-bankruptcy law
(A) that restricts or conditions transfer of such interest by the debtor; . . ." 11 U.S.C. § 541(c)(1)(A)
Thus, a conflict arises between these two federal statutes wherein ERISA prohibits a transfer and the Bankruptcy Code mandates said transfer into the estate. This inconsistency is resolved in the language contained in 29 U.S.C. § 1144(d) of the ERISA laws which states:
Nothing in this subchapter shall be construed to alter, amend, modify, invalidate, impair, or supercede any law of the United States (except as provided in §§ 1031 and 1137(b) of this title) or any rule or regulation issued under any such law.
This clearly shows the intent of Congress to subordinate the ERISA statutes to any other federal law with which they may be in conflict. As a result, the Trustee is not barred by the restriction on assignment in the ERISA statutes from ascending to the Debtor's position with regard to the Plan.
C. The broad definition of property of the estate contained in 11 U.S.C. § 541(a)(1) is not without qualification. This section is tempered by 11 U.S.C. § 541(c)(2) which places "a restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy laws enforceable in a case under this title." The trust to which this subsection applies is limited as well. The Congressional intent of this subsection is clearly demonstrated by the Committee Reports which state:
Paragraph (2) of Section (c) however, preserves restrictions on transfer of a spendthrift trust to the extent the restriction is enforceable under applicable non-bankruptcy law.
H.R.Rep. 595, 95th Cong., 1st Sess. 369 (1977); S.Rep. No. 989, 95th Cong., 2nd Sess. 83 (1978), U.S.Code Cong. & Admin. News 1978, 5787, 5869, 6325.
This necessarily requires that the Plan at issue qualify as a spendthrift trust under the particular laws of the state which the *261 debtor asserts has jurisdiction over the case. The spendthrift trust requirements under Oklahoma state law are found at Okla.Stat.Ann. tit. 60, § 175.25 (West 1971). A generally accepted axiom of spendthrift trusts provides that "if a settlor creates a trust for his own benefit and inserts a `spendthrift' clause, restraining alienation or assignment, it is void as far as creditors are concerned and they can reach the settlor's interest in the trust." In re Witlin, 640 F.2d 661, 663 (5th Cir.1981) cited in In re Goff, 706 F.2d 574, 587 (5th Cir.1983). Also see In re Graham, 24 B.R. 305, 309-310, 10 Bankr.Ct.Dec. 500, 503 (5th Cir.1983).
If the terms of an ERISA qualified plan serve to create a trust at all, the settlor or creator of any such trust would be the debtor. Said trust would be created for the debtor's own benefit (i.e., self-settled), effectively disqualifying ERISA plans from spendthrift classification. Further, under the Internal Revenue Service guideline for determining a "hardship" or an "immediate and heavy financial need," a tremendous amount of discretion is placed in the hands of both the Plan Administrator and the employee/beneficiary of the plan. See 26 C.F.R. § 1.401(k)-1. Such discretion is in direct contradiction to the intent and objective of a spendthrift restriction. Thus, we conclude that the Plan at issue is not protected under a spendthrift trust concept and therefore is found to be property of the estate. See also in this matter In re Goff, supra.
III. EXEMPTION
D. Having determined that the retirement Plan at issue is in fact a part of the Debtor's estate and that the Plan was transferred to the Trustee upon the commencement of the case along with the rest of the Debtor's property, we must address the propriety of Debtor's claimed exemption relying upon the Oklahoma statute as revealed by the initial filings with this case. The Trustee is statutorily empowered to challenge the validity of the Debtor's claim of exemption. The Trustee in this case is not seeking to garnish the Plan which is clearly prohibited by the ERISA statutes. This would be an unnecessary act, since the Plan is already in his possession, due to the transfer of all property at the commencement of the case.
Since the Trustee does have standing to challenge the Debtor's claim of exemption as to the Plan, we now examine whether that challenge has merit. The intent of an exemption is generally to protect the debtor and his property from his own improvidence and from his creditors. This recognizes that there exists certain core property which is essential for the debtor to survive and maintain some quality of life. This intent is demonstrated at both the state level in granting exemptions from garnishment and at the federal level in the bankruptcy "fresh start" concept.
The Bankruptcy Code allows the Debtor to claim certain property exempt, either through the federal exemptions listed in the Code or through state exemptions upon the exercise of a state to "opt out" of the federal exemptions. 11 U.S.C. § 522. Oklahoma exercised its ability to opt out some time ago. The Oklahoma exemption statute at issue may be found at Okla.Stat. Ann. tit. 31, § 1(A)(20) (West Supp.1988-89) which states:
. . . the following property shall be reserved to every person residing in the state, exempt from attachment or execution and every other species of forced sale for the payment of debts, except as herein provided:
(20) . . . any interest in a retirement plan or arrangement qualified for tax exemption purposes under present or future Acts of Congress; . . . `Retirement plan or arrangement qualified for tax exemption purposes' shall include without limitation, trusts, custodial accounts, insurance, annuity contracts and other properties and rights constituting a part thereof. By way of example and not by limitation, retirement plans or arrangements qualified for tax exemption purposes permitted under present Acts of Congress include defined contribution plans and defined benefit plans as defined under the Internal Revenue Code *262 (`IRC'), . . . IRC Section 403(a) annuity plans, IRC Section 403(b) annuities . . . This provision shall be effective for retirement plans and arrangements in existence on, or created after the effective date of this act;
The clear concerns of this particular exemption statute are first, that retirement plans be protected from attachment by creditors; and second, that these protected retirement plans meet the IRS criteria for attaining tax exempt status. Thus, it is undisputed that the Plan at issue is intended to be exempted under the Oklahoma statutes as written since the IRC sections which afford ERISA its tax exempt status are specifically set forth in the Oklahoma State exemption statute. This particular section is relatively new to the exemption scheme under Oklahoma laws (having been enacted on April 16, 1987 by emergency declaration of the Oklahoma Legislature), and thus the problems it creates in this area have only recently arisen in Oklahoma.
E. The controversy concerning the possible preemption of the state statutes exempting ERISA qualified plans culminated in the case of Mackey v. Lanier Collections Agency and Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988). In that case, the United States Supreme Court determined on a five to four vote that ERISA qualified welfare benefit plans are protected from garnishment pursuant to state statute by the provisions of ERISA.
The Mackey case and the progeny of cases it spawned are clearly distinguishable from the instant case since the facts revolved around a state garnishment action which as stated hereinabove is explicitly distinct and different from the Trustee's asserted position in this particular case. However, the Court in Mackey set forth a rule of law which does have applicability in the case at bar. Namely, the Court specifically found that the provisions of ERISA preventing the garnishment of the plan preempted a Georgia state statute providing for the exemption of ERISA qualified retirement plans. The Georgia statute is very similar to the one at issue in this case from Oklahoma.
"Preemption" is the "doctrine adopted by the U.S. Supreme Court holding that certain matters are of such a national, as opposed to local, character that federal laws preempt or take precedence over state laws. . . ." See Black's Law Dictionary 1060 (5th ed. 1979). Although such a doctrine is directly opposed to the position which this Court has traditionally held with regard to federal supremacy, the rule of law stated in Mackey is not easily escapable.
Specifically, the ERISA statutes at § 514(a) preempt "any and all state laws insofar as they may now or hereafter relate to any employee benefit plan which qualifies under the statute." 29 U.S.C. § 1144(a). The intent of a State Legislature to create an exemption which will dovetail with the federal ERISA statute will not rescue a particular state statute from preemption. "The preemption provision [of § 514(a)] . . . displace(s) all state laws that fall within its sphere, even including state laws that are consistent with ERISA's substantive requirements." Metropolitan Life Insurance v. Massachusetts, 471 U.S. 724, 739, 105 S.Ct. 2380, 2389, 85 L.Ed.2d 728 (1985). Thus, despite the fact that the Oklahoma exemption statute is intended to accomplish the same purpose as the provisions of ERISA, the state statute is nonetheless preempted.
Despite the fact that most cases addressing this issue have been outside of the bankruptcy setting, we can find no justification for concluding differently on the preemption issue, given the expansive language contained in the ERISA statutes and the rule of law dictated by the Supreme Court enforcing its provisions. Thus, we conclude that the ERISA statutes preempt the exemption statute in Oklahoma pertaining to retirement plans for all purposes in the bankruptcy setting.
F. The Debtor encourages this Court to determine that the Oklahoma exemption provisions should be given the effect of federal law and thus not be preempted. The Debtor reasons that the United States *263 Congress passed the United States Bankruptcy Code subsequent to the ERISA provisions. As a result, the opt out possibility conferred in 11 U.S.C. § 522 and exercised by the Oklahoma Legislature, the Debtor argues, should allow the state exemption statutes to have the same effect of federal law, just as if the state had not opted out of the federal exemptions.
Clearly, the ERISA statutes were not intended to affect any federal law as has been discussed hereinabove. See 29 U.S.C. § 1144(d), supra.
However, despite the potential for the Debtor's argument, we cannot find and have not been offered any precedent for a determination that this state law should be or can be afforded the effect of federal law. The theory that the state exemption statutes are somehow incorporated within the Bankruptcy Code due to the ability of states to opt out of the exemptions contained within the Code is interesting from a State's rights viewpoint but is simply unfounded.
For the foregoing reasons, the Plan at issue in this case is held to be not exempt.
Thus, since this Court has determined that the property is in fact in the estate and not subject to a valid exemption, the Trustee may exercise the Debtor's rights and receive any benefits under the Plan as the custodian and representative of the estate, since the Plan was transferred to his possession by operation of law upon the Debtor filing his Petition and seeking relief from this Court.
IV. COMMENTS
G. The Court takes this opportunity to make some practical observations in this matter. The ERISA statutes were enacted by the United States Congress in an attempt to protect and benefit those parties who have committed substantial funds to their ultimate retirement. This has been done by shielding these funds from garnishment of creditors and by affording them tax deferred status. Those seeking to benefit from the statutes must be willing to accept them as they are written and thereby withstand the consequences of the clear meaning of the provisions contained in ERISA. As this Court has written and enforced numerous times in the past, "for every benefit, there is a burden." The benefits afforded by the ERISA statutes to a debtor/employee are obvious. The restriction which accompanies these benefits is that only the ERISA statutes will be allowed to govern these retirement plans created under that law's precepts. If this is too onerous of a burden to bear on the part of the debtor/employee, he may decline participation.
H. Although discussed in detail above, the cornerstone element of this decision is worthy of repeating for clarification. The concept of creating an estate and transferring all of the debtor's estate to the Trustee subject to a valid claim of exemption is the crucial distinction which allows the result in this case. This concept is unique to bankruptcy. In a state garnishment proceeding, the same result would not be possible since a creditor would be forced to levy execution on the Plan in order to obtain the Plan proceeds. This action is strictly prohibited under the dominant federal ERISA statutes and therefore the creditor would be stopped in its efforts. In bankruptcy, no garnishment and no execution is necessary due to the instant transfer of property to the Trustee. Thus, the result in this case is attributable to the peculiar interrelationship of bankruptcy with state and federal law.
I. Finally, we are distinctly aware of the unique position that the Trustee will assert in attempting to avail himself of the rights of the Debtor under the Plan as the representative and custodian of the estate. Ostensibly, the Trustee will claim bankruptcy as an "immediate and heavy financial need" and request hardship payment from the Plan Administrator. It is clear that the Trustee can claim no greater rights than the Debtor himself possessed at the time of the filing of the Petition. See H.R.Rep. 95-595, 95th Cong., 1st Sess. 367-68 (1977); S.Rep. No. 95-989, 95th Cong., 2nd Sess. 82-83 (1978). Thus, the Trustee is essentially asserting that the Debtor could have made a similar demand *264 of the Plan Administrator upon discovering the deficiency position which warranted bankruptcy. This Court wishes to make it abundantly clear that this Order should not be construed to determine the outcome or validity of the Trustee's demand from the Plan Administrator. That issue is for another time and possibly another Court.
Clearly, the success of the Trustee in his efforts to benefit from the Plan is still in substantial question. As a result, while it may appear that the Trustee has won the most immediate battle, the war in this area will most certainly rage on.
IT IS THEREFORE ORDERED that the National Oil Well Retirement and Thrift Plan is property of the estate. Further, the Objection to Exemption filed by the Trustee is hereby sustained for the reasons set forth hereinabove and thereby the Trustee assumes the rights, benefits and burdens possessed by the Debtor under the Plan at the filing of the Petition. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919254/ | 106 B.R. 834 (1989)
In re RAVICK CORPORATION, Debtor.
Bankruptcy No. 88-08017.
United States Bankruptcy Court, D. New Jersey.
August 30, 1989.
*835 John W. Hargrave, Voorhees, N.J., for debtor.
Lampf, Lipkind, Prupis & Petigrow by Scott D. Jacobson, West Orange, N.J., for Gary Prisand, Mt. Laurel Development Associates and Union Mill Farms Associates.
Markowitz & Zindler by Michael A. Zindler, for Mainstay Federal Sav. and Loan Assn.
OPINION
ROSEMARY GAMBARDELLA, Bankruptcy Judge.
The matter before the court is a motion, filed on April 10, 1989 by Gary Prisand ("Prisand"), Mt. Laurel Development Associates ("MLDA") and Union Mill Farms Associates ("UMFA") (hereinafter referred to collectively, where appropriate, as "Prisand"), (1) for dismissal of Ravick Corporation's (the "debtor") Chapter 11 bankruptcy case pursuant to 11 U.S.C. § 1112(b), (2) for this court to abstain from exercising its jurisdiction over a certain adversary proceeding before it entitled Ravick Corporation v. Gary Prisand, Mt. Laurel Development Associates, and Union Mill Farms Associates, Adversary No. 88-1089, pursuant to 28 U.S.C. § 1334(c)(1) and (2) for modification of the automatic stay pursuant to 11 U.S.C. § 362(d) to allow the continuation of an action entitled Gary Prisand et al. v. Ravick Corporation and Raymond L. Girard Docket No. C-16251-88E, in the Superior Court of New Jersey, Chancery Division, Burlington County. Because the court finds that the debtor's Chapter 11 bankruptcy case was not filed in good faith within the meaning of § 1112(b), and that "cause" exists for dismissal of the petition, the debtor's Chapter 11 case is hereby dismissed. The relevant facts of this matter follow.[1]
In 1968 Raymond L. Girard purchased 104.158 acres of undeveloped land (hereinafter the "Property"), zoned R-3 residential, described as Lots 1 and 2, Block 278 on the tax map of Mt. Laurel Township, located on Union Mill Road, Mt. Laurel Township, Burlington County, at a cost of $2,000.00 per acre (Deposition Transcript of January 13, 1989 of Raymond L. Girard at pp. 22, 36-37, 62) (hereinafter "Girard Dep. at ___"). Girard apparently contributed the Property to the Ravick Corporation in consideration for his receipt of the debtor's common stock (Girard Dep. at 63). Girard is presently the sole shareholder, officer and employee of the Ravick Corporation (Girard Dep. at 8). In July 1983 Ravick Corporation applied to the Planning Board of Mt. Laurel Township to subdivide and develop 512 dwelling units ("The Project") on the Property (Affidavit of Girard dated August 22, 1988 at ¶ 3) (hereinafter Girard Affidavit # 1 at ___). On May 9, 1985, Ravick received preliminary plat approval for Phase I of the subdivision, Phase 1 consisting of 50 single family units (Girard Affidavit # 1 at ¶ 6).
In 1983 the New Jersey Supreme Court issued the landmark decision of Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel, 92 N.J. 158, 456 A.2d 390 (1983), which decision obligated municipalities to provide low and moderate income housing through the mechanism of *836 land use regulations. Ravick Corporation was made a party to a multi-party litigation in the Superior Court of New Jersey, Atlantic County involving Mt. Laurel Township. The final consent order, issued by The Honorable L. Anthony Gibson on September 12, 1985 directed Mt. Laurel Township to permit Ravick to construct up to 512 dwelling units on the Property and required the developer to reserve 15% of the units to low and moderate income housing.
By way of resolution dated September 26, 1985, the Mt. Laurel Township Planning Board granted to the debtor final approval for development of 50 single family homes on the Property. On October 10, 1985, the Planning Board granted preliminary approval for Phase II (the remainder of the single family detached units) and Phase III (the townhouse units) of the development project (hereinafter referred to collectively as the "Project"). The Planning Board expressly conditioned preliminary approval of Phases II and III on, inter alia, Ravick's procuring a valid and current stream encroachment permit from the New Jersey Department of Environmental Protection ("DEP"). The preliminary approval, however, did not require approval by the United States Army Corps of Engineers ("Army Corps").
According to the Honorable Harold B. Wells, III's letter opinion dated October 18, 1988 (hereinafter "Letter Opinion") in the state court matter of Prisand v. Ravick, C-16251-88E, granting Prisand's motion for partial summary judgment for specific performance of the contract, see infra, Ravick Corp. received preliminary approval for an R-3 single family development of 141 units in 1978. As one of the conditions of preliminary approval, Ravick was required to procure a stream encroachment permit from DEP, which the seller did without applying to the United States Army Corps of Engineers. That plan, however, was never implemented and the permit expired (See Letter Opinion, p. 2).
Ravick contends that in November 1985, it made application to DEP for a stream encroachment permit (Girard Affidavit # 1 at ¶ 11). On March 20, 1986, the debtor's engineers received a letter from the DEP, Division of Water Resources, which stated:
It has been determined that your submission of a revised project delineation on U.S.G.S. scale dated March 14, 1986 accurately represents the project site as shown on the site plan. This delineation indicates that the project borders but does not contain any wetlands, based on U.S. Fish and Wildlife Service's National Wetlands Inventory maps. (Emphasis added in Affidavit).
(Girard Affidavit at ¶ 12; See also Letter Opinion at p. 3).
On September 15, 1986 Ravick Corporation and Raymond Girard entered into a written Contract of Sale ("Contract") with Gary M. Prisand for the purchase of the Property by Prisand. The Contract covered 510 fully improved lots and townhouse units which are part of the subdivision known as Union Mills Farms (Agreement at ¶ 1). MLDA is a New Jersey partnership which is the assignee of Gary Prisand's rights under the Contract (See Verified Complaint entitled Gary Prisand, Mt. Laurel Development Associates and Union Mill Farms Associates, L.P. v. Ravick Corporation and Raymond L. Girard at ¶ 2, filed in the Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. C-162-21-88E) (hereinafter "State Court Complaint"). UMFA is a New Jersey partnership and is an assignee of certain of MLDA's interests in the Contract of Sale and is developing the Property. (See State Complaint at ¶ 3).
Paragraph 2 of the Contract sets forth the purchase price and states that Prisand would pay $21,208.23 for each lot and unit. Paragraph 4.1 of the Contract states in relevant part that "the purchase price of $21,208.23 per lot or unit is to be allocated $11,568.23 for the land and governmental approvals and $9,640.00 for the improvements to be made with respect to each lot and unit by [Ravick Corporation]."
Pursuant to Paragraph 3 of the Contract, the parties scheduled seven closings to consummate the transaction. Paragraph 3 states in relevant part:
*837 3.1 Subject to the fulfillment of all the conditions of this Agreement by the Seller [Debtor], the initial closing shall occur on or before October 15, 1986, at which closing forty-eight (48) single-family lots shall be purchased. The Purchaser [Prisand] shall also reimburse the Seller the amount of Seventy-Two Thousand ($72,000.00) Dollars for forty-eight (48) sewer connection permits for such lots.
3.2 After the initial closing, closings shall occur in accordance with the following schedule, at which time the Purchaser [Prisand] shall purchase the following lots and units:
Lots & Units
(a) February 15, 1987 100
(b) August 15, 1987 75
(c) February 15, 1988 73
(d) August 15, 1988 73
(e) February 15, 1989 73
(f) May 15, 1989 68
Paragraph 9 of the Contract sets forth the seller's representations and covenants wherein the debtor and Girard warranted and represented to Prisand that: (a) the Subject Property was zoned and improved for construction of 510 residential units, consisting of 238 single-family detached units and 272 single-family attached townhouse units; and (b) the debtor and Girard would obtain all of the necessary and non-appealable governmental approvals for The Project by the initial closing. Paragraph 9 of the Contract states in pertinent part:
9. Representations and Covenants of Seller
Seller represents and warrants to and covenants with, Purchaser [Prisand], knowing and intending that Purchaser [Prisand] shall rely thereon, and which representations and covenants shall survive each and all closing as follows:
9.1 The Premises conform to existing zoning and site plan approval which allow for the construction of a residential development consisting of two hundred thirty-eight (238) single family detached units and two hundred seventy-two (272) single family attached townhouse unts. The five hundred ten approved lots and units are subject to a fifteen (15%) percent allocation for low and moderate housing in accordance with the final consent order of the Superior Court of New Jersey which provides that such allocation may be satisfied entirely in townhouse units and shall be satisfied by the construction of not more than thirty-eight (38) one bedroom townhouse units not less than twelve (12) three bedroom townhouse units which are allocated to low and moderate housing.
9.3 Seller represents that it has or will have by the initial closing all necessary final non-appealable government approvals required for the development of the premises for two hundred thirty-eight (238) single family detached units and two hundred seventy-two (272) single family attached townhouse units, including but not limited to all final non-appealable approvals from the Department of Environmental Protection, the municipal utility authority, stream encroachment permits, sewer and water approvals, and as to each closing, there is adequate sewer and water capacity to service the lots and units which are then being closed.
According to Judge Harold B. Wells' Letter Opinion dated October 18, 1988, the only permit Ravick was waiting for at the time the Contract was executed was the stream encroachment permit from the DEP. (Letter Opinion at p. 4). The debtor, however, contends herein as it did before the state court that it was unaware, before November 26, 1986, that Army Corps approval was required for the issuance of the permit. (Girard Affidavit # 1 at ¶ 14).
On November 26, 1986 the DEP issued a stream encroachment permit to the debtor (the "Permit"), effective December 19, 1986, with an expiration date of November 19, 1988. The Permit expressly required the debtor and Girard to obtain approvals from the United States Army Corps of Engineers. The permit states in relevant part:
This permit DOES NOT GIVE ANY PROPERTY RIGHTS in either real or personal property, nor any exclusive privileges; neither does it authorize any injury to private property; nor invasion of private rights; nor any infringement *838 of Federal, State or local laws or regulations; nor does it waive the obtaining of Federal or other State or local government consent when necessary. THIS PERMIT IS NOT VALID AND NO WORK SHALL BE UNDERTAKEN UNTIL SUCH TIME AS ALL OTHER REQUIRED APPROVALS AND PERMITS HAVE BEEN OBTAINED INCLUDING BUT NOT LIMITED TO PERMITS AND APPROVALS FROM THE FOLLOWING:
U.S. Army Corps of Engineers (Philadelphia District). (Permit at ¶ 8, emphasis in original).
The debtor contends herein, as it did before the state court, that the requirement of Army Corps approval was a complete reversal of DEP's original position as stated in the March 20, 1986 letter that the Property did not contain wetlands. According to Judge Wells' Letter Opinion, Ravick Corporation embarked upon a fourteen month struggle with the Army Corps, following issuance of the Permit, over the subject (Letter Opinion at p. 5).
In the interim, on February 26, 1987, the Debtor, Mr. Girard and Mr. Prisand held the Initial Closing for the forty-eight (48) single family lots constituting Phase I of the Project. Mr. Prisand paid directly to the Seller $1,089,995.04 and paid in escrow $160,024.00 for unfinished site improvements. (Letter to Gary Prisand from Raymond Girard dated February 6, 1987 entitled "Settlement Section No. 1, Union Mill Farms, Mt. Laurel, New Jersey").
Also on February 26, 1987, Girard executed a "Certification" on his own behalf and as President of Ravick Corporation wherein he reaffirmed the warranties in Paragraph 9 of the Contract (see supra). In particular, the certification provided in relevant part that:
The initial closing under the Contract is being held this date. In accordance with Section 12.4 of the Agreement, the Seller hereby certifies to the Assignee as follows:
1. All representations and warranties of the Seller in the Contract are true and correct and in all respects on and as of the date hereof as though made as of the date hereof.
By way of letter dated February 9, 1988, about one year after the initial closing, the Army Corps informed the debtor that 18.57 acres of the Property were wetlands.
By way of letter dated March 7, 1988, Ravick Corporation and Girard informed Prisand of the new wetlands determination and that the previously approved preliminary subdivision would have to be resubmitted for approval. The debtor further informed Prisand that it was increasing the contract price for improved lots from $21,208.23 to $26,280.00. The March 7, 1988 correspondence provided in relevant part:
The enclosed Preliminary Plan of Union Mill Farms in Mt. Laurel Township, revised to January 12, 1988, shows the lands confiscated by the U.S. Government and labeled as "Limits of Federal Jurisdiction". These lands comprise 18.57 acres. This revised Preliminary Plan further shows the revised townhouse and single family units. The revised plans together with the engineering details are again being submitted to Mt. Laurel Township.
On September 15, 1986 Ravick Corporation entered into a Contract of Sale with Gary M. Prisand. This Contract of Sale was based on the aggregate of five hundred ten (510) improved lots and townhouse units as described on the Preliminary Plan of Union Mill Farms dated March 13, 1984 and revised to February 4, 1986. This Preliminary Plan no longer exists.
The purpose of this correspondence is to advise you that the purchase price for the improved lots and units shall be $26,280 per lot and unit.
In order for Ravick Corporation to proceed with the final approval process, it will be necessary for you to inform Ravick by March 16, 1988 of your interest in the Union Mill Farms Project.
By way of a statement dated March 28, 1988, the Debtor indicated that the revised unit price of $26,280 was premised on the ability to deliver 428 units as follows: *839
UNION MILL FARMS
Units Available
Based on Revised Preliminary Plan 428 Units
Price Per unit Improved
(Excluding Sidewalks) $26,280/Unit
SCHEDULE OF PAYMENTS
1. Preliminary Approvals
Payment due at signing of Contract. $ 6,000/Unit.
2. Land & Final Approvals $14,780/Unit
3. Improvements $ 5,800/Unit
The above per unit prices are based on a total of 428 units in Union Mill Farms. If the final plans reflect less than 428 units, the price per unit will be adjusted accordingly.
By way of letter dated April 4, 1988, Raymond Girard advised Prisand that Ravick Corporation and Girard considered the Contract between Ravick Corporation and Prisand, dated September 15, 1986, to be void. In response, by way of letter dated April 7, 1988, Prisand notified the debtor that Prisand considered the Contract to remain in full force and effect.
On May 24, 1988, Prisand, MLDA and UMFA filed a verified complaint and order to show cause seeking inter alia specific performance of the contract in the Superior Court of New Jersey, Chancery Division, Burlington County, Docket Number C-16251-88E. (see supra). Thereafter, the debtor and Girard made a revised application to the Mt. Laurel Township Planning Board for preliminary approval of Phases II and III and hearings were held on May 26, 1988 and June 9, 1988. By reason of the delineation of wetlands by the Army Corps, the number of units covered under the Project was reduced as follows: 190 single family units reduced to 160 units, and 272 townhouses reduced to 177. (Letter Opinion at p. 5). The Planning Board resolution granting preliminary approval was adopted on June 23, 1988.
By way of letter dated June 10, 1988, the Debtor and Mr. Girard indicated to Prisand, MLDA and UMFA, through respective counsel, their ability to deliver units, at a higher price of $34,000.00 per unit. That correspondence states in pertinent part:
My client is willing to meet with you and your clients to negotiate a revised contract of sale based upon the new subdivision plan. The negotiations would be without prejudice to any party with respect to the pending lawsuit.
With regard to the purchase price, my client is of the opinion that the Township will approve 340 units in the balance of the tract. Consequently, the price per unit is to be revised from $21,208.23 to $34,000.00. (Emphasis Added).
On October 18, 1988 Judge Wells granted Prisand's motion for partial summary judgment for specific performance and denied the Debtor's and Mr. Girard's cross-motion for partial summary judgment excusing future performance of the Contract based on the doctrine of impossibility of performance.
Specifically, Judge Wells' opinion provides as follows:
Based on the contract it is clear that the Seller expressly assumed the risk that further necessary government approvals would not be granted. See Section 9.3 of the contract supra at 3. Specifically, the Seller represented and covenanted that `it has or will have by the initial closing all necessary final non-appealable government approvals required for the development of the premises [including] . . . stream encroachment permits.' The fact that the Seller did not in fact have or could not obtain all government approvals for the contracted property does not therefor entitle the Seller to excuse its performance since it was a foreseeable risk which was expressly assumed by the Seller. It was particularly foreseeable after November 1986 when the Seller knew that the DEP has reversed itself and was requiring Army Corps approval. Yet the Seller proceeded to close at the agreed price on the first 48 lots and reaffirmed its guaranty that all approvals were in hand or would be forthcoming.
As to the Seller's argument that the contract is not enforceable because the subdivision plan to which it referred was vacated by Mount Laurel, the fact is that the seller has offered no proof that the new subdivision, which received preliminary approval in June 1988, was substantially *840 more costly per unit that the original plan. True, the June 1988 plan approved by Mt. Laurel represents a 17.8% reduction in the acreage and a 24% drop in the number of lots, but there were not minimums set forth in the contract triggering Seller's right to raise the per unit price or an excuse for non-performance. Indeed, it is inequitable to the buyer now after it has committed over $1 million to the project, for the Seller to pull out. In addition, the Court also finds that notwithstanding the Seller's assumption of the risk in this case, the decrease in available lots from 510 to 385 due to the Army Corps' wetlands determination and subsequent revised plan does not, as a matter of law, entitle the Seller to the defense of impossibility.
* * * * * *
In this case, the preliminary plans for the property following small revisions contemplated 510 lots. Under the new development plan, the amount of lots has been reduced by 125 lots. The fact remains that 76% of the original amount of lots are still available for conveyance. The sale of the property has not been made impossible. This is made evident by Seller's letters which seek a higher price. The fact that the Seller may derive less on the sale does not render the contract impossible.
* * * * * *
[T]he contract of sale dated September 15, 1986 is declared enforceable and the seller is ordered to specifically perform that portion of the contract concerning the conveyancing of land and the obtaining of government approvals in exchange for the amount of $11,568.23 per lot. This transaction should occur as soon as reasonably practical. The buyer retains all rights to sue for monetary damages under the contract which it suffers as a result of the improvements it undertakes to gain final approvals.
(Letter Opinion at pp. 6-7, 10) (emphasis added). The decision of Judge Wells directing the transfer of the remaining 340 subdivided lots requires Gary Prisand to pay the Debtor approximately $3.95 million. The decision by its terms does not compel the debtor or Mr. Girard to perform the improvements to the remaining subdivided lots, as provided under the terms of the Contract.
In accordance with Judge Wells' decision, a proposed form of order was submitted to Judge Wells under cover letter dated October 31, 1988 by Prisand. By way of letter dated November 3, 1988, the debtor objected to the form of order. On or about November 15, 1988, Ravick Corporation and Girard filed a motion for reconsideration of Judge Wells' decision. Judge Wells apparently set down both the return date on the motion for reconsideration and a hearing on settlement of the form of order for December 9, 1988.
On November 18, 1988 Raymond L. Girard, in his capacity as president of Ravick Corporation, adopted the following corporate resolution pursuant to a "special meeting" held at the offices of his attorney, John W. Hargrave:
IT IS HEREBY RESOLVED that the President of Ravick Corporation be and he is hereby authorized to execute and file on behalf of the corporation a Petition for Relief under Chapter 11 of the United States Bankruptcy Code for the district of New Jersey.
IT IS FURTHER RESOLVED, that John W. Hargrave, Esquire is hereby retained to act on behalf of Ravick Corporation and to represent it in connection with such proceedings.
On December 7, 1988, two days before the parties were scheduled to appear before Judge Wells in the New Jersey Superior Court, Ravick Corporation filed a voluntary Chapter 11 petition pursuant to the Bankruptcy Reform Act of 1978, as amended by the Bankruptcy Amendments and Federal Judgeship Act of 1984 as further amended by the Bankruptcy Judgeship, United States Trustee's and Family Farmer Act of 1986 (hereinafter "Bankruptcy Code").
On December 19, 1988, Judge Wells apparently ruled that Ravick's Chapter 11 filing did not stay the state court from *841 entering an order against the non-debtor Girard, consistent with its Letter Opinion. On that day, Judge Wells denied the non-debtor Girard's motion for reconsideration and directed counsel for Prisand to submit a form of order granting partial summary judgment as against the non-debtor Girard, which counsel did under cover letter dated December 20, 1988.
On December 21, 1988, the debtor filed a motion with this court seeking authorization to reject the Contract entered into between the debtor and Prisand as an "executory contract" pursuant to 11 U.S.C. § 365(a)[2].
On December 21, 1988 the debtor filed an adversary proceeding in this court entitled Ravick Corporation v. Gary Prisand, Mt. Laurel Development Associates and Union Mill Farms Associates, Adversary No. 88-1089, titled "Verified Complaint for Injunctive Relief and to Object to Claim." By that complaint the debtor seeks an order of this court declaring that the debtor's further performance under the Contract be excused under the doctrine of impossibility and rejecting any claim Prisand may have pursuant to 11 U.S.C. § 365. By that same complaint the debtor, Ravick, seeks an injunction against Prisand continuing the prosecution of the state court action, including any action against the non-debtor Raymond Girard, pending further order of this court.
On January 13, 1989 Prisand filed an Answer seeking dismissal with prejudice of the complaint, together with attorneys' fees and costs of suit. By its answer Prisand asserts the following separate defenses: (1) the complaint fails to state a claim upon which relief can be granted; (2) the court should abstain from accepting jurisdiction of the subject claims pursuant to 28 U.S.C. § 1334(c)(1) or (c)(2); (3) this court lacks jurisdiction over the subject matter of the complaint.
Pursuant to the aforementioned complaint the debtor on December 21, 1988 filed an application for a temporary restraining order seeking an order temporarily restraining Prisand from proceeding with entry of judgment in the state court proceeding against Raymond Girard and setting a date for hearing on the debtor's application to continue the restraints until this court has passed on the debtor's motion to reject the Contract pursuant to § 365 and the aforesaid adversary proceeding.
By way of letter dated January 4, 1989, Prisand notified this court that the parties agreed to adjourn the order to show cause without date and that the parties would engage in limited discovery. Counsel for Prisand also requested that the state court abstain from signing the proposed form of order submitted by Prisand. It appears that as of the date of the hearing on the instant matter, May 9, 1989, by agreement of counsel of Prisand and the debtor, an order as against Mr. Girard was not entered in the state court proceeding.
Prisand's position in connection with this motion to dismiss Ravick's Chapter 11 petition is that the bankruptcy petition was filed in bad faith and that other "cause" exists for dismissal of the case pursuant to § 1112(b) including the inability to effectuate a plan and unreasonable delay prejudicial to creditors or for abstention and dismissal of the case pursuant to § 305; or alternatively, that the facts of this case establish the existence of "cause" warranting the modification of the stay pursuant to § 362(d) and abstention by this court pursuant to 28 U.S.C. § 1334(c)(1) from exercising jurisdiction over the pending adversary proceeding filed by Ravick against Prisand in this court and to grant relief from the automatic stay pursuant to § 362 to permit completion of the state court action.
The debtor, on the other hand, argues that (1) the debtor's filing was done in good faith and that its ability to reorganize makes dismissal inappropriate; and (2) the *842 interests of all parties would best be served if the bankruptcy court does not abstain pursuant to 11 U.S.C. § 305 and does not permit completion of the state court action pursuant to 28 U.S.C. § 1334(c) or grant relief from the stay pursuant to 11 U.S.C. § 362.
DISCUSSION
Section 1112(b) of the Bankruptcy Code states:
(b) Except as provided in subsection (c) of this section, on request of a party in interest or the United States trustee, and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 7 of this title or may dismiss a case under this chapter, whichever is in the best interest of creditors and the estate, for cause, including
(1) continuing loss to or diminution of the estate and absence of a reasonable likelihood of rehabilitation;
(2) inability to effectuate a plan;
(3) unreasonable delay by the debtor that is prejudicial to creditors;
(4) failure to propose a plan under section 1121 of this title within any time fixed by the court;
(5) denial of confirmation of every proposed plan and denial of a request made for additional time for filing another plan or a modification of a plan;
(6) revocation of an order of confirmation under section 1144 of this title, and denial of confirmation of another plan or a modified plan under section 1129 of this title;
(7) inability to effectuate substantial consummation of a confirmed plan;
(8) material default by the debtor with respect to a confirmed plan;
(9) termination of a plan by reason of the occurrence of a condition specified in the plan; or
(10) nonpayment of any fees or charges required under chapter 123 of title 28.
11 U.S.C. § 1112(b). The legislative history of this section explains that:
[s]ubsection (b) gives wide discretion to the court to make an appropriate disposition of the case when a party in interest requests. The court is permitted to convert a reorganization case to a liquidation case or to dismiss the case, whichever is in the best interest of creditors and the estate, only for cause. Cause may include . . . [the ten factors listed in § 1112(b)]. The list is not exhaustive. The court will be able to consider other factors as they arise, and to use its equitable powers to reach an appropriate result in individual cases.
H.R.Rep. No. 595, 95th Cong., 1st Sess. 405-06 (1977), U.S.Code Cong. & Admin. News 1978, pp. 5787, 6361, 6362. Section 1112(b) does not define the term "cause" but instead sets forth a list of non-exclusive grounds which may constitute cause. See e.g., In re Victory Construction Co., 9 B.R. 549, 558-60 (Bankr.C.D.Cal.1981), vacated on other grds, 37 B.R. 222 (9th Cir. BAP 1989) ("cause" is any reason cognizable to the equity power and conscious of the court as constituting an abuse of the bankruptcy process). It is well established that a debtor's bad faith filing of a bankruptcy petition is sufficient "cause" to warrant dismissal of the case under § 1112(b). See also In re Waldron, 785 F.2d 936 (11th Cir.1986) (construing comparable sections under Chapter 13); Matter of Little Creek Development Co., 779 F.2d 1068, 1072 (5th Cir.1986); In re Albany Partners Limited, 749 F.2d 670, 674 (11th Cir.1984); Matter of Century City, Inc., 8 B.R. 25, 30 (Bankr. D.N.J.1980). Prisand contends that dismissal of Ravick's case under § 1112(b) is justified on the grounds that (1) the debtor filed its petition in bad faith; (2) the debtor cannot effectuate a reorganization plan pursuant to 11 U.S.C. § 1112(b)(2); and (3) the debtor's filing constitutes unreasonable delay prejudicial to creditors pursuant to 11 U.S.C. § 1112(b)(3). Since Ravick opposed the motion to dismiss, Prisand has the burden of proof on the issue of "cause." See 3 Collier Bankruptcy Manual, ¶ 1112.04 at p. 1112-17 (3d Ed.1987).
Congress' grant of authority to the bankruptcy courts to dismiss chapter 11 petitions for "cause," and the requirement *843 of good faith, are intended to preserve the integrity of the bankruptcy process. Matter of Little Creek Development Co., 779 F.2d 1068, 1072 (5th Cir.1986). Dismissal of a case is appropriate where a case is not filed to achieve the valid, legitimate purposes of the rehabilitate provisions of Chapter 11. In re Randy Homes Corporation, 86 B.R. 259, 261 (Bankr.M.D.Fla. 1988).
In determining whether bad faith exists, courts have focused on whether the particular circumstances of a case, viewed in their totality, evidence the debtor's intent to abuse the judicial process and the purposes of the reorganization provisions of the Code. In re Phoenix-Piccadilly, Limited, 849 F.2d 1393, 1394 (11th Cir. 1988); Century City, 8 B.R. at 33. In making such a determination, the facts and circumstances of the particular case must be examined and no one factor should be controlling. In re Kasdorf, 64 B.R. 294, 295 (Bankr.D.Colo.1986); see also Matter of Grieshop, 63 B.R. 657, 662-63 (N.D.Ind. 1986).
The case of Little Creek, supra, identified a "conglomerate" of factors which have been considered in determining whether a bankruptcy case was filed in bad faith. The existence of certain of the factors identified by the Little Creek court may be considered in a motion to dismiss for "cause" including:
The debtor has one asset, such as a tract of undeveloped or developed real property. The secured creditors' liens encumber this tract. There are generally no employees except for the principals, little or not cash flow, and no available sources of income to sustain a plan of reorganization or to make adequate protection payments pursuant to 11 U.S.C. §§ 361, 362(d)(1), 363(e), or 364(d)(1). Typically, there are only a few, if any, unsecured creditors whose claims are relatively small. The property has usually been posted for foreclosure because of arrearages on the debt and the debtor has been unsuccessful in defending actions againt the foreclosure in state court. Alternatively, the debtor and one creditor may have proceeded to a standstill in state court litigation, and the debtor has lost or has been required to post a bond which it cannot afford. Bankruptcy offers the only possibility of forestalling loss of the property. There are sometimes allegations of wrongdoing by the debtor or its principals. The "new debtor syndrome," in which a one-asset entity has been created or revitalized on the eve of foreclosure to isolate the insolvent property and its creditors, exemplifies, although it does not uniquely categorize, bad faith cases.
Id. at 1072-73. In Little Creek, the Fifth Circuit emphasized that determining whether the debtor's filing is in good faith depends "largely upon the bankruptcy court's on-the-spot evaluation of the debtor's financial condition, motives, and the local financial realities." Id. at 1072. In that case the Fifth Circuit held that the bankruptcy court's finding that "cause" existed to lift the automatic stay pursuant to 11 U.S.C. § 362(d)(1) based solely on the remarks of counsel for the debtor that the bankruptcy petition was filed in order to escape the necessity of posting a substantial bond in an ongoing state court proceeding was clearly erroneous and that more evidence was necessary to support the bankruptcy court's conclusions. Id. at 1070. The Little Creek court reversed the bankruptcy court's judgment and the district court's judgment affirming the bankruptcy court order and remanded the matter with instructions.
In remanding the matter, the Little Creek court noted:
We do not, in reversing the bankruptcy court's somewhat hasty conclusion in this case, imply that a finding of lack of good faith would be improper after fuller consideration of the issue on remand. Unless facts appear in the record that clearly warrant a finding of bad faith, however, a debtor should ordinarily be given an opportunity to respond to a charge of abuse of the bankruptcy process.
From the foregoing discussion, it should be clear that a debtor may not counter allegations of bad faith solely *844 with an attempt to relitigate the issues presented in its state court case. If the circumstances surrounding Little Creek's filing demonstrate that the goals of the bankruptcy laws cannot be fulfilled by permitting Little Creek to stave off foreclosure by Commonwealth, then it makes no difference whether Little Creek had, or has, a cause of action for damages against Commonwealth in state court. Additionally, as the issue of good faith arose during a hearing on a motion to lift the stay, Little Creek will not be permitted to undermine the expedited treatment of this motion, see 11 U.S.C. § 362(e), by interpreting the state court issues. See In re Johnson, 756 F.2d 738, 740 (9th Cir.), cert. denied, [474 U.S. 828], 106 S.Ct. 88, 88 L.Ed.2d 72 (1985); In re Born, 10 B.R. 43, 48-50 (Bankr.S. D.Tex.1981). The bankruptcy court was correct in striking the extrinsic state law defenses from the debtor's response to the motion to lift the stay.
779 F.2d at 1074.
In the case of In re Apex Properties, Limited, Civil Action No. 88-0056 (D.N.J. May 6, 1988), the Honorable Mitchel H. Cohen, Senior Judge, United States District Court, relied upon the Little Creek decision in affirming an order of the Honorable Judith H. Wizmur, which granted dismissal of the chapter 11 involuntary bankruptcy petition filed against Apex Properties, Ltd. In that case the state court had issued an order dissolving Apex Properties, Ltd., a New Jersey limited partnership, and directing that its sole asset, a property in Atlantic City, be sold. One of the limited partners submitted an offer on behalf of a third party to purchase the property. The state court appointed receiver recommended the sale of the property to another party. The state court issued an order adopting the recommendation of the receiver. The limited partner obtained a temporary stay of the sale. At the time that the limited partner was required to post a $1.5 million bond to continue the stay, no bond was posted, instead an Involuntary Chapter 11 was filed against the limited partnership. Apex then filed a motion to dismiss the involuntary petition which was granted by the bankruptcy court. Judge Cohen found that:
Apex has only one asset, the Atlantic City property; there are no employees and no ongoing business; the Mayflower property is to be sold by order of the state court; and, Shamy [the limited partner] has been required to post a bond to stay the sale pending appeal of the state court decision to the state appellate division.
When the above-mentioned circumstances are present,
[r]esort to the protection of the bankruptcy laws is not proper . . . because there is no going concern to preserve, there are no employees to protect, and there is no hope of rehabilitation, except according to the debtor's "terminal euphoria."
Little Creek, supra, 779 F.2d at 1073.
Id. at p. 16.
Generally, where a debtor's reorganization effort involves essentially a two party dispute resolveable in state court, and the filing for relief under the Bankruptcy Code is intended to frustrate the legitimate efforts of creditors to enforce their rights against the debtor, dismissal for "cause" is warranted. See e.g., In re Brandywine Associates, Limited, 85 B.R. 626 (Bankr.M.D.Fla.1988). (Dismissal warranted where single asset debtor without direct employees or material unsecured creditors and with one secured creditor, sought to forestall foreclosure); In re Waldron, 785 F.2d 936 (11th Cir.1986) (Solvent debtors invoked the bankruptcy process to reject real estate option agreement to secure more profitable deal, and prevent creditor from seeking specific performance in state court); In re Randy Homes Corporation, 86 B.R. 259 (Bankr.M.D.Fla. 1988) (Debtor, whose sole asset is an undeveloped parcel of real property, generating no income and who had no employees or existing business operations and never made any attempts to develop the real property, filed petition to forestall state court foreclosure action); In re Noco, Inc., 76 B.R. 839 (Bankr.N.D.Fla.1987) (Court's dismissal of the bankruptcy petition *845 grounded in part on finding that the debtors were ". . . clearly attempting to use the reorganization process to litigate nonbankruptcy issues and to avoid the burdens of a contract . . ."); Matter of Young, 76 B.R. 376 (Bankr.D.Del.1987) (Dismissal warranted where the debtor filed a chapter 11 petition in an attempt to stop a court ordered award of specific performance).
The facts in the case of In re Wally Findlay Galleries (New York), Inc., 36 B.R. 849 (Bankr.S.D.N.Y.1984) are strikingly similar to the facts now before the court. In that case, the debtor operated an art gallery under a franchise agreement with Wally Findlay Galleries International, Inc. (International) and a lease with Walstein C. Findlay Realty, Inc. (Realty) which were executed on October 1, 1980. At that time the debtor executed a promissory note in favor of International in partial payment of the franchise fee. As part of the transaction, International sold all of its outstanding stock to the Borynack Corporation. In partial payment for the stock Borynack Corporation executed a promissory note in favor of International for $96,000.00 payable in installments. Both notes provided for acceleration in the event of a default. James R. Borynack, the sole shareholder of Borynack Corporation guaranteed the obligations of the corporation. Ultimately the debtor and Borynack Corporation defaulted in payment of installments on their respective obligations. On February 4, 1983 the New York State Supreme Court granted International's motion for summary judgment in lieu of complaint on inter alia, the instruments above mentioned. On May 3, 1983 the state court entered a judgment obligating the debtor to pay $147,129.80 to International and obligating Borynack Corporation and James R. Borynack to pay the sum of $113,820.00 to International. On October 26, 1982 Realty terminated its lease with the debtor due to the nonpayment of the notes as an event of default under the lease. Thereafter, Realty filed a complaint in state court which included a cause of action for ejectment. On June 16, 1983, the state court granted Realty's summary judgment on this cause of action. On May 3, 1983, the same date as the court entered summary judgment on the notes, the debtor filed a voluntary Chapter 11 bankruptcy petition which stayed litigation with Realty. By application filed June 1, 1983 the debtor removed these actions to the bankruptcy court. The matter before the court in Wally was brought on by International and Realty seeking dismissal of the debtor's petition "for cause" pursuant to § 1112(b). The bankruptcy court concluded:
It is clear that the debtor did not file its petition to reorganize, but rather as a litigating tactic in its dispute with International and Realty. The petition was filed the same day that judgments on the promissory notes were entered in the state court. See In re Ripples of Clear-view, Inc., 26 B.R. 453, 455 (Bkrtcy.E.D. N.Y.1983). Neither the debtor, the Borynack Corporation, nor Mr. Borynack has sufficient assets to post a bond in order to stay these judgments pending appeal. The debtor filed its petition herein to avoid the consequences of adverse state court decisions while it continues litigating. This court should not, and will not, act as a substitute for a supersedeas bond of state court proceedings.
The debtor also seeks to use this court as an appellate forum to review the state court's grant of summary judgment on the notes in the context of a lease assumption. Pursuant to 11 U.S.C. § 365, in order for an unexpired lease to be assumed, defaults must be cured, or adequate assurance of prompt cure must be provided.
Id. at 851. In response to the debtor's proposal to cure the defaults under its lease with Realty and the nonpayment of franchise fees by litigating its claim that International and Realty conspired to devalue the debtor's franchise in order to recapture the lease, the Wally court found:
Justice Fraiman of the New York State Supreme Court granted summary judgment on the notes, rejecting the debtor's assertion of meritorious counterclaims based on the alleged conspiracy. He denied the debtor's motion to renew or reargue. It is not this court's function to *846 review a state court grant of summary judgment. See In re Pagoda International, Inc., 26 B.R. 18, 21 (Bankr.D.Md. 1982).
Id. The Wally case is instructive on the proposition that a debtor's employment of litigation tactics, such as the use of the bankruptcy forum for purposes other than reorganization, constitutes "cause" for dismissal within the meaning of 11 U.S.C. § 1112(b).
The Eleventh Circuit in the case of Phoenix Piccadilly Ltd., 849 F.2d 1393 (11th Cir.1988) affirmed four orders of the bankruptcy court affirmed by the district court of which three orders granted relief from the automatic stay to three secured creditors and from an order dismissing the Chapter 11 case. In that case the bankruptcy court had made a finding that the petition was not filed in good faith but rather for the purpose of delaying and frustrating the efforts of secured creditors to enforce their rights in the subject property. The property was comprised of four phases known as Phases I, II, III and IV. The three secured creditors separately held first mortgage liens on all four phases. An additional party held a note which was secured by a "wraparound" mortgage encumbering the entire property. On June 19, 1987 mortgage foreclosure proceedings were instituted by one of the three secured creditors. On June 29, 1987 an order was entered in the state court action appointing a receiver for Phase III of the property. The debtor filed its Chapter 11 petition on November 19, 1987, the day before a hearing in the state court action to appoint a receiver for the other three phases of the property. All three secured creditors filed motions for relief from the automatic stay and subsequently filed motions to dismiss the Chapter 11 case. The Eleventh Circuit noted that while there is no particular test for determining whether a debtor has filed a petition in bad faith, "the courts may consider any factors which evidence `an intent to abuse the judicial process and the purposes of the reorganization provisions' or, in particular, factors which evidence that the petition was filed `to delay or frustrate the legitimate efforts of secured creditors to enforce their rights.'" Id. at 1394 (citation omitted).
The Eleventh Circuit held that the bankruptcy court's finding of bad faith was supported by the record where the court found that:
(i) The Debtor has only one asset, the Property, in which it does not hold legal title;
(ii) The Debtor has few unsecured creditors whose claims are small in relation to the claims of the Secured Creditors;
(iii) The Debtor has few employees;
(iv) The Property is the subject of a foreclosure action as a result of arrearages on the debt;
(v) The Debtor's financial problems involve essentially a dispute between the Debtor and the Secured Creditors which can be resolved in the pending State Court Action; and
(vi) The timing of the Debtor's filing evidences an intent to delay or frustrate the legitimate efforts of the Debtor's secured creditors to enforce their rights.
849 F.2d at 1394.
In so ruling the Eleventh Circuit noted that the possibility of a successful reorganization cannot transform a bad faith filing into one undertaken in good faith:
Because the bankruptcy court found that a bad faith filing had occurred, it properly did not change the consequences of that finding simply because of the debtor's possible equity in the property or potential for successful reorganization. We reject the debtor's argument that the bankruptcy court cannot ever dismiss a case for bad faith if there is equity in the property because the presence of equity indicates the potential for a successful reorganization. Rather, as this Court stated in In re Natural Land [825 F.2d 296 (11th Cir.1987)]:
the taint of a petition filed in bad faith must naturally extend to any subsequent reorganization proposal; thus, any proposal submitted by a debtor who filed his petition in bad faith *847 would fail to meet section 1129's good faith requirement.
825 F.2d at 298.
849 F.2d at 1395.
In this case, the debtor corporation was formed for the purpose of dividing and developing the Property. (Girard Dep. at 62). Except for the utilization of professionals, including engineers, planners and attorneys, Ravick Corporation has no employees except for Girard, who is also its sole officer, shareholder and employee. (Girard Dep. at 8). The debtor has no cash flow, and no source of income, except for cash generated by disposal of portions of the Property. (Girard Dep. at 47-48). Nor does the debtor own or lease any machinery, office equipment or automobiles (Girard Dep. at 13-14). The debtor does not produce any goods or perform any services; it maintains no inventory, has no accounts receivable and it does not maintain financial statements (Girard Dep. at 46-48). Moreover, it appears that at the time of the bankruptcy filing the debtor was not a party to any formal legal proceedings aside from the state court action before Judge Wells. (Girard Dep. at 16).
The debtor's bankruptcy petition indicates that the Ravick Corporation has only one secured creditor, Mainstay Federal Savings & Loan Association, which, according to the debtor's schedules, holds a first mortgage on 85.626 acres of the Property to secure the payment of $2,001,705.00 (See Schedule A-2). At the May 9, 1989 hearing on the instant motion, counsel for Mainstay Savings & Loan Association represented that Mainstay had failed to receive interest payments due from the debtor since June 1988 and that as of March 31, 1989 Mainstay was due from the debtor the total sum of $2,163,673.10 comprising principal of $1,944,027.76, past due interest of $199,598.28 and an extension fee of $20,047.06. The debtor's Schedule A-3 lists its unsecured creditors, other than Prisand,[3] as follows: (1) DeFalco & Bisconti, (for a claim in the amount of $8,936.00); (2) First Indemnity of America Insurance Company (for contingent liability on two construction bonds; amount of claim listed as $1.00 on debtor's Schedule A-3); (3) Lord, Anderson, Worrell, Barnett (for a claim in the amount of $1,520.00); and (4) Mat'l Engrg. & Testing Service (for a claim in the amount of $2,416.40). In sum, the class of unsecured creditors other than Prisand total four, the aggregate amount of which is $12,873.40. The claims of unsecured creditors are clearly relatively small in connection with the other claims. In the "Debtor's Opposition to Application of Gary Prisand" the debtor asserts that at the time of the filing the debtor was encountering problems with its primary lender, Mainstay Federal Savings & Loan Association for payment of $37,943.38 in interest, together with the sum of $3,000.00 for the costs of an appraisal, and that payment of same would have exhausted nearly all the funds of the debtor. (See Debtor's Opposition to Application for Prisand at ¶ 57).
In support of this proposition the debtor presents two separate letters which the debtor received in September 1988 and November 1988. On September 28, 1988 Raymond Girard, as President of the debtor received a letter from Frank P. Sullivan, of RAM Mortgage Investors, Inc. which stated:
Pursuant to our meeting of September 2, 1988, we anxiously await the outcome of your lawsuit with Gary Prisand.
Please be advised however, that as the month comes to a close an interest payment must be made. Mainstay Federal has been extremely patient while you have worked through your problems and will continue to work along with you be it to restructure the loan or whatever. They must receive some interest in order to get the loan current, which helps to facilitate their ability to work with you. *848 Please feel free to contact me should you have any questions or comments.
Very truly yours,
FRANK P. SULLIVAN
(See Debtor's Exhibits, Exhibit J).
On November 2, 1988 Mr. Girard, again as President of the debtor received the following letter from James L. Stites, Senior Vice-President of Mainstay Federal Savings & Loan Association which stated:
Enclosed please find your most recent interest billing indicating a payment of $37,943.38 due. Also, enclosed please find the copy of TMR Appraisal Services bill for $3,000.00, which has been charged to your loan balance.
Kindly advise me as to the status of his project. Has the court made final judgment concerning the Prisand Contract? When can we expect this project to move forward toward completion? We are anxious, as we are sure you are to resolve the problems holding up progress of this development.
Very truly yours,
James L. Stites
Senior Vice President
(See Debtor's Exhibits, Exhibit K).
Notwithstanding Mainstay's request for payment, nothing in the record before this court indicates that at the time the petition was filed, creditors were pressing the debtor to take any action.[4]
Most significantly, the record indicates that the debtor and/or Girard filed its chapter 11 petition in order to (1) avoid the Ravick-Prisand contract and liquidate the Property (Girard Dep. at 48); (2) avoid personal liability on the part of Girard on the Mainstay loan and the Prisand Contract (Girard Dep. at 95-97); and (3) avoid entry of an order by Judge Wells granting Prisand partial summary judgment against the debtor on the issue of specific performance on the Contract (Debtor's Opposition to Application at ¶ 2). The very timing of the petition in this case, just two days before the return date on the debtor's and Girard's motion for reconsideration in the state court action, makes the debtor's motives suspect. See e.g. Century City, 8 B.R. at 33. This court cannot sanction the debtor's use of the bankruptcy court as a litigation tactic. See e.g. Wally, supra, 36 B.R. 849.
Ravick claims that it comes into this bankruptcy proceeding with four assets which it wishes to utilize to reorganize. The assets, according to Ravick, include:
(1) Approximately 67 acres located in Mt. Laurel, New Jersey for which preliminary approval has been obtained to construct 341 living units. The debtor values this "asset" at $7,949,991.00. This is real property which is the subject of the Prisand Contract.
(2) Two vacant lots with final Township approval valued at $90,000.00.
(3) A vacant parcel of land consisting of 6.4 acres and valued at $600,939.00.
(4) A Contingent unliquidated claim against the United States Government for the "taking" which resulted from the classification of 18.5 acres of the Property as wetlands. This cause of action was valued at $1.00.
(See Debtor's Opposition to Application of Prisand, ¶ 1). Ravick claims that it made a good faith decision to use the bankruptcy process to maximize the value of its assets. Ravick believes that it can realize at least $6,639,000.00 from the liquidation of these four assets and that it can then make an outright distribution to creditors. This distribution is based upon a total valuation of assets of $8,640,931.00 less the lien of Mainstay calculated at $2,001,000.00. (See Debtor's Opposition to Application of Prisand at ¶ 3). The debtor relies upon a real estate appraisal dated October 6, 1988 performed by TMR Appraisal Services, Inc., for Mainstay Federal Savings & Loan Association, which indicates a Market Value as of September 28, 1988 for real property identified as Block 904, Lots 1 and 2 of $8,040,000.00. (See Debtor's "Exhibit A"). The debtor also asserts that with regard to *849 its claim against the United States Government for compensation resulting from the taking caused by classification of 18.5 acres of the debtor's land as wetlands while the likelihood of recovery is uncertain at this time, the debtor stands to recover approximately $2,114,000.00 which will also be utilized to fund its plan. (See Debtor's Opposition to Application of Prisand at ¶ 4). Of course, this plan would require a decision by this court to release Ravick from its obligation to Prisand under the Contract pursuant to 11 U.S.C. § 365.
In an affidavit filed on May 2, 1989 Girard states with regard to "Options Available to Ravick Corporation in Formulating a Plan of Reorganization":
1. Ravick Corporation has not and will not seek a new purchaser for the land which is the subject of the Prisand contract unless the Court rules favorably on Debtor's Motion to reject that contract.
2. Ravick Corporation has been approached by at least one regional developer who would like to purchase this property.
3. Again, assuming the Court does allow Ravick to reject the contract of Gary Prisand, Debtor does have an option other than an outright sale of its land.
4. Ravick Corporation could undertake the construction and sale of townhouses/residences on Debtor's land, either by itself or as a joint venture with another entity.
5. Residences in this development which have been constructed by Gary Prisand are now selling at prices between $165,000.00 and $235,000.00 each.
6. It is clear that this option could result in sufficient proceeds to pay creditors in full and allow Ravick to continue in business.
(See Affidavit at ¶ 10-15).
This court rejects the debtor's position in this matter for at least two reasons. First, the fact that a tract of property, such as the one at issue, has been subdivided, does not mean that more than one asset has been created. In this case, all of the property of the debtor's estate is the subject of the Ravick-Prisand contract except for (a) two vacant lots, and (b) a vacant parcel consisting of 6.4 acres. Second, ultimate resolution of this matter would force this court to decide issues already determined by Judge Wells in the state court action including the debtor's claims that it was a "victim" of both the Army Corps' wetlands determination and the New Jersey Supreme Court's decision in the Mount Laurel case. Judge Wells expressly found, inter alia, that (1) Ravick's performance under the Agreement was not excusable since failure to obtain government approvals for the contracted property was a foreseeable risk which Ravick expressly assumed; and (2) the decrease in the number of lots due to the Army Corps' wetlands determination does not entitle Ravick to the defense of impossibility. These findings undercut the thrust of Ravick's position that final approval for the balance of the development from the Mt. Laurel Township Planning Board was a condition precedent to completion of the subject Agreement. (See Girard Affidavit, filed May 2, 1989, at ¶ s 31-34). Ravick Corporation is a classic example of the "new debtor syndrome" described by the Honorable Edith Hollan Jones for the Fifth Circuit in the Little Creek Development case. "The `new debtor syndrome,' in which a one-asset entity has been created or revitalized on the eve of foreclosure to isolate the insolvent property and its creditors, exemplifies, although it does not uniquely categorize, bad faith cases." 779 F.2d at 1073 (citations and footnote omitted).
All of the foregoing leads this court to conclude that Ravick Corporation's true motives in filing its Chapter 11 petition were not rehabilitative but were to utilize the bankruptcy court as a means of renegotiating the terms of its Contract with Prisand, in view of what the debtor believes to be the increased value of the property since the execution date of the Contract, and the possibility of securing a purchaser that would enhance the debtor's ultimate profit on the Property. In this regard the court notes that "the bankruptcy laws are intended *850 as a shield not a sword." Waldron, 785 F.2d at 940.
The debtor's alleged actions in aid of reorganization and its preliminary plan of reorganization, not yet submitted to the court, do not undermine the court's finding that Ravick's motives in filing were not rehabilitative. Girard represents to the court that since the filing of the petition, Ravick secured a renewal extension to December 19, 1989 of its stream encroachment permit from the State of New Jersey Department of Environmental Protection. (Girard Supplemental Affidavit, filed May 9, 1989, at ¶ 2). The debtor further represents that it has a loan commitment from Mainstay Federal Savings & Loan Association for an additional $1 million which it can use to finance its business plan (Debtor's Opposition at ¶ 24). Ravick proposes (1) to sell or develop the 6 acre parcel of property adjacent to the land which is the subject of the Prisand Contract, which has been listed for sale at a price of $675,000.00 (Debtor's Opposition at ¶ 13 and ¶ 19); (2) to construct and sell housing units on the 2 lots reserved from the first closing and the approximately 341 lots which are the subject of the Prisand Contract either on its own or as a joint venture with another entity (Debtor's Opposition at ¶ 20); (3) to pursue a claim against the United States for compensation for the "taking" of property; and (4) to seek rejection of the executory contract with Prisand. To begin with, the Contract at issue requires transfer of developed units and valid permits the actions taken by the debtor in this regard are contractual obligations, not actions in aid of reorganization. Moreover, the debtor's plans with respect to the possible sale of the Property to potential third party buyers, based upon a successful rejection of the executory contract, bolster this court's finding that the debtor's intent behind filing its petition was to avoid the Prisand Contract and obtain enhanced profit. The fact that Ravick plans at this time to also pursue a claim against the United States does not negate this court's findings.
In addition to the foregoing, the court rejects Ravick's argument that this case is factually distinguishable from a typical two-party dispute on several grounds including that Mainstay Savings & Loan Association holds a first mortgage on 85.626 acres of the Property. This court recognizes that bankruptcy petitions arising out of two party disputes do not per se constitute a bad faith filing. In re Stolrows, Inc., 84 B.R. 167, 171 (9th Cir. BAP 1988) citing In re Hulse, 66 B.R. 681, 683 (Bankr.M.D.Fla.1986). However, the court cannot disregard the other factor indicative of Ravick's misuse of the Bankruptcy Code's reorganization provisions, including the clear intent of the debtor and Girard to avoid liability on the Contract; the timing of the filing of the Chapter 11 petition; and the debtor's unsecured debt relative to its entire estate; Girard's position as sole employee, officer and shareholder of Ravick Corp. The very essence of a determination of good faith in the context of a motion to dismiss is the cumulative impact of the particular facts of a case. The fact that Mainstay maintains a first mortgage on the Property due to construction financing simply does not suffice to show that dismissal is unwarranted.
Finally, the debtor relies heavily on the case of In re Marina Enterprises, Inc., 14 B.R. 327 (Bankr.S.D.Fla.1981) in support of the proposition that single asset debtors have been allowed to continue chapter 11 proceedings. In Marina, the debtor's sole asset was an undeveloped tract of real estate subject to a lease requiring the debtor, as lessor to construct an 18-story building to be used as a casino and hotel. The petition was filed on January 28, 1981, immediately following a partial summary judgment of foreclosure of a purchase money mortgage on January 27, 1981. After filing its Chapter 11 petition, the debtor, as lessor filed an application with the bankruptcy court for an order rejecting and disaffirming the lease on the subject property between itself as lessor and lessee, Casino by the Sea Corporation ("Casino"). Casino filed an answer to the debtor's application and also filed a motion to dismiss the Chapter 11 proceeding to transfer *851 venue to the Bankruptcy Court for the District of New Jersey. The bankruptcy court denied the motion to dismiss, noting that:
It is true that the debtor has no business or going concern value. However, it does have its equity in the subject property on which a successful reorganization might be predicated. The court cannot prejudge whether or not a successful and confirmable plan of reorganization will be submitted. The issue of equity in its assets will be explained more fully below when the issue of rejection of the lease is considered.
Id. at 331. The Marina court rejected the Casino's assertion that the debtor's utilization of the bankruptcy process and particularly its effort to reject the lease which Casino held on the subject property was an improper use of the bankruptcy process. The court stated: "The experience of this court is that most of the business debtors which come to it do so as a result of undercapitalization and poor business judgment in the past." Id.
In addition, the Marina court denied Casino's motion to transfer venue and permitted rejection of the contract pursuant to 11 U.S.C. § 365, finding that "there could be no realistic anticipation of successful reorganization or rehabilitation without rejection of the lease." Id. at 333. The court recognized that (1) the rent the debtor was to receive would not even cover debt service much less give a realistic return on investment; (2) the debtor was unable to obtain construction financing because of the "improvident lease"; and (3) under the facts in that case the debtor-in-possession was entitled to reject the subject lease in the exercise of its business judgment. Id.
This court rejects Ravick's reliance on the Marina case. Rejection of the lease in that case served a useful purpose for the debtor which was financially troubled and who could not obtain the financing required to complete the lease terms. "In [Marina], rejection was permitted to serve the intended purpose of chapter 11 to facilitate the adjustment of debts through reorganization." Waldron, 785 F.2d at 940. The record before this court clearly and unambiguously establishes that the debtor herein simply seeks to renegotiate the original Contract with Prisand, and to essentially relitigate issues decided by the state court.
In sum, this court finds that the Ravick's filing of its chapter 11 bankruptcy petition was not done in "good faith" but rather for an improper purpose and hereby grants Prisand's motion to dismiss the bankruptcy for "cause" pursuant to 11 U.S.C. § 1112(b). As a result, the court finds it unnecessary to reach the issues of (1) whether the debtor can effectuate a reorganization plan; (2) whether Ravick's filing caused undue delay to creditor; and (3) whether abstention is appropriate in this case or in the pending adversary proceeding.[5]
*852 An order in conformance with this opinion shall be submitted to the court.
NOTES
[1] The court notes that its findings involve in part consideration of affidavits. The court in In re Apex Properties, Ltd., Civil Action No. 88-0056 (D.N.J., May 6, 1988) noted:
It is axiomatic that affidavits constitute proper evidence on motions. Fed.R.Civ.P. Rule 43(e). More specifically, a court may rely upon affidavits on a motion to dismiss. See Young v. Garrett, 149 F.2d 223, 225 n. 1 (8th Cir.1945); Lucking v. Delano, 129 F.2d 283, 285 (6th Cir.1942); Central Mexico Light & Power Co. v. Munch, 116 F.2d 85, 87 (2nd Cir.1940); American Ins. Co. v. Bradley Mining Co., 57 F.Supp. 545, 547 (N.D.Cal.1944)).
Op. at p. 9. Fed.R.Civ.P. Rule 43(e) is made applicable to cases under the Bankruptcy Code by Bankruptcy Rule 9017.
[2] Title 11 U.S.C. § 365(a) provides:
(a) Except as provided in sections 765 and 766 of this title and in subsections (b), (c), and (d) of this section, the trustee, subject to the court's approval, may assume or reject any executory contract or unexpired lease of the debtor.
[3] Prisand is listed as an unsecured creditor having the following claims:
(1) Advanced payment for buildings lots $100,000.00
(2) Breach of Contract
Debtor intends to seek determination that contract with Prisand is void. Claim is contingent and unliquidated. $1.00
[4] Since that time, Mainstay on May 11, 1988 filed a motion for relief from the automatic stay, which is pending before this court.
[5] It is self evident that, as a general rule, the dismissal of a bankruptcy petition results in the concomitant dismissal of all pending adversary proceedings. In re Stardust Inn, Inc., 70 B.R. 888, 890 (Bankr.E.D.Pa.1987); In re Pocklington, 21 B.R. 199, 202 (Bankr.S.D.Cal.1982). This is particularly true of adversary proceedings which are "related" to the bankruptcy case pursuant to 28 U.S.C. § 157(c)(1) since the related proceeding can only be heard by a bankruptcy court because of its nexus to the debtor's bankruptcy case. See Stardust Inn, supra, 70 B.R. at 890. See generally, Pacor v. Higgins, 743 F.2d 984 (3d Cir.1984). Cf. In re Lake Tahoe Land Co., Inc., 12 B.R. 479 (Bankr.D.Nev.1981) (bankruptcy court maintained jurisdiction over adversary proceeding after underlying bankruptcy proceeding dismissed where the statute of limitations for creditor to file action to recover a deficiency judgment in state court lapsed). Accordingly, dismissal of the Chapter 11 bankruptcy petition herein results in dismissal of Adversary Proceeding No. 88-1089 entitled Ravick Corporation v. Gary Prisand, Mt. Laurel Development Associates and Union Mill Farms Associates.
In the case of Matter of Solar Equipment Corp., 19 B.R. 1010 (W.D.La.1982) the District Court for the Western District of Louisiana held that, upon dismissal of the debtor's bankruptcy petition, the bankruptcy court relinquished subject matter jurisdiction to continue the automatic stay provisions of § 362, and to make a determination of the debtor's tax liability pursuant to § 505. This rationale applies with equal force to the debtor's motion, filed December 21, 1988, to reject the contract entered into between the debtor and Prisand pursuant to 11 U.S.C. § 365. Accordingly, the court having dismissed the debtor's bankruptcy petition, hereby relinquishes subject matter jurisdiction to decide the debtor's pending § 365 motion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919268/ | 106 B.R. 180 (1989)
In re Judy Carol KISSINGER.
CITIZENS STATE BANK, BALD KNOB, ARKANSAS, Plaintiff,
v.
Judy Carol KISSINGER, Defendant.
Bankruptcy No. LR 88-2248 S, Adv. No. 89-38.
United States Bankruptcy Court, E.D. Arkansas, Little Rock Division.
October 4, 1989.
*181 Brian Wolfman, Little Rock, Ark., for debtor.
Donald Raney, Searcy, Ark., for Citizens State Bank, Bald Knob, Ark.
ORDER
MARY D. SCOTT, Bankruptcy Judge.
Pending before the Court is a Motion to Alter or Amend Judgment. In support of this Motion the Defendant asserts the following:
1. In an Order entered on July 7, 1989, this Court found defendant's debt to plaintiff non-dischargeable. The Court held that the defendant obtained the loan from the plaintiff jointly with her ex-husband under a proper power of attorney from her ex-husband.
2. The Court held, however, that the defendant knew that she and her ex-husband did not own all of the nineteen head of cattle pledged as collateral on the loan and, therefore, held the loan non-dischargeable, pursuant to 11 U.S.C. § 523(a)(2)(A).
3. Defendant moves this Court to alter or amend the judgment and hold the loan dischargeable because she believes that the proof at trial does not show by clear and convincing evidence that the plaintiff pledged nineteen head of cattle under false pretenses.
The Defendant also submitted a "Memorandum of Law" in support of her Motion. Defendant does not cite any rule of procedure which supports her Motion, but the Court assumes she intends either Rule 52 or 59 of the F.R.C.P. Sometimes these Motions are made together. The Plaintiff has filed a response asserting that the Defendant, pursuant to Rule 59 of the F.R.C.P., does not present any new evidence or arguments which were not or could not have been presented at trial in the matter. The Plaintiff is also contending that the Defendant is requesting that the Court "simply change its mind." Although the Defendant does not cite any particular procedural rule in support of her Motion, the Court, as earlier noted, believes that she is, pursuant to Rule 52 of the F.R.C.P., questioning the sufficiency of the evidence to support the findings made by the Court and seeks amended findings as well as an amended judgment in accord with those findings. Rules 52 and 59 of the F.R.C.P. are applicable to bankruptcy adversary proceedings. See Rules 7052 and 9023 of the Rules of Bankruptcy Procedure.
For the Court to find a debt nondischargeable under Section 523(a)(2)(A) the objecting creditor must prove by clear and convincing evidence that a debt for money, property, or services was obtained and (1) that the debtor knowingly made a false representation; (2) that the debtor made the representation with the intent to defraud; and (3) that the creditor relied upon the false representation to its detriment. See, In Re Kerr, 58 B.R. 171, 174 (Bkrtcy. E.D.Ark.1985). See, also, In Re Ophaug, 827 F.2d 340 (8th Cir.1987) and Matter of Van Horne, 823 F.2d 1285 (8th Cir.1987), wherein the court held:
Because direct proof of intent (i.e., the debtor's state of mind) is nearly impossible to obtain, the creditor may present evidence of the surrounding circumstances from which intent may be inferred. See In Re Simpson, 29 B.R. 202, 211 (Bkrtcy.N.D.Iowa 1983). Accord In Re Frye, 48 B.R. 422, 427 (Bkrtcy.M.D.Ala. 1985); In Re Brown, 55 B.R. 999, 1004 *182 (Bkrtcy.E.D.N.Y.1986). When the creditor introduces circumstantial evidence proving the debtor's intent to deceive, the debtor "cannot overcome [that] inference with an unsupported assertion of honest intent." In Re Simpson, 29 B.R. at 211-12. The focus is, then, on whether the debtor's actions "appear so inconsistent with [his] self serving statement of intent that the proof leads the court to disbelieve the debtor." In Re Hunt, 30 B.R. 425, 441 (M.D.Tenn.1983).
The Court has reviewed its previous Order as well as its oral ruling from the bench and agrees with Plaintiff that Defendant is essentially asking the Court to change its mind because of conflicting testimony. It is true that testimony was conflicting which then required the trier of fact to make a credibility determination. Defendant overlooks the credibility finding made by the Court that the debtor did not present a demeanor consistent with truthfulness.
The parties do not disagree that the bank loaned money to the debtor or that nineteen head of cattle were pledged as collateral to secure the loan. There also appears to be no dispute that the nineteen head of cattle did not provide sufficient collateral to obtain the loan and, hence, some additional real estate was pledged. It is also undisputed that the bank is still owed money and cannot locate the cattle so that they can be sold to satisfy all or part of the debt. There is still an outstanding debt owed.
The Court found that the debtor knowingly made a false representation to the bank that she and her ex-husband had nineteen head of cattle to pledge. The debtor, by her own admission, handled all the family financial business, but did not really know nor could she establish with any certainty that she and her ex-husband owned the nineteen head of cattle pledged to the bank. She testified that she saw her ex-husband pay cash for the cows, but was uncertain as to any amounts. She "disputed" claims by her ex-father-in-law that he or anyone else owned any of the cows. She had no proof to offer other than her own self-serving assertion. Wendell Nier, a bank officer, dealt directly and only with the debtor during the transaction and viewed the cattle with her. The debtor's ex-father-in-law testified. Although his testimony was confusing, he did credibly testify that he and his wife, as well as a stepson, Calvin Miller, claimed an ownership interest in the cows. The debtor admitted that her ex-father-in-law attended sales and assisted in hauling and caring for the cows, but just simply "disputed" his and his stepson's claims to ownership. She could not establish ownership of the cows beyond stating that her ex-husband purchased them for cash and believed the cash to be theirs because he took the money out of his wallet to pay for the cattle. She testified that this money was cash left over after she cashed his paycheck and gave him the funds. Further, although the debtor testified that her ex-husband got the nineteen head of cattle in their divorce action, she conceded they were not mentioned in the parties' divorce decree.
There was also considerable testimony surrounding the use of a power of attorney by the debtor to secure the loan proceeds from the bank. The debtor admits the document was her idea and claims her ex-husband signed it. He denies ever signing the power of attorney. The debtor admits the document, although notarized, was, in fact, not signed in front of a notary public. Finally, the debtor also admits she took over payment of the bank's debt after the divorce, but could no longer make payments because she decided to go back to school.
What is clear is that the parties are unfriendly to the point of being openly hostile, each disputing what the other states. Caught in the middle is the bank which accepted a power of attorney, apparently notarized improperly by a local attorney, viewed collateral (the cattle) which the debtor purported to own and upon these representations and the additional pledge of real estate (which the debtor received under the divorce decree) agreed to loan funds to the debtor and her ex-husband.
*183 The Court simply did not believe the debtor's self-serving statements regarding the ownership of the cattle. Thus, the Court, after considering all the circumstances, found that the debtor intended to deceive the bank. The debtor did not produce any evidence to support her bare assertions that she thought she owned all the cattle she pledged. The Court found her testimony incredible particularly in light of her claim that she took care of all the household financial and business dealings.
Under the circumstances, the debtor's request that this Court amend its earlier findings and judgment is denied.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919269/ | 224 N.J. Super. 613 (1988)
541 A.2d 233
WILLIAM KANE, PLAINTIFF-APPELLANT,
v.
NATHAN MILIKOWSKY, PROSPECT INDUSTRIES, INC. PROSPECT PURCHASING CORP., JERSEY STEEL DRUM MANUFACTURING CO., AND PHOENIX STEEL CONTAINER CORPORATION, DEFENDANTS-RESPONDENTS.
Superior Court of New Jersey, Appellate Division.
Submitted January 27, 1988.
Decided April 25, 1988.
*614 Before Judges GAULKIN, GRUCCIO and D'ANNUNZIO.
Myron D. Milch, attorney for plaintiff.
Hannoch Weisman, attorneys for respondents (Sheldon M. Finkelstein, on the brief).
The opinion of the Court was delivered by D'ANNUNZIO, J.A.D.
Plaintiff was employed as president and chief executive officer of defendant, Prospect Industries, Inc. (Prospect) in September 1982. Prospect is a subsidiary of defendant, Prospect Purchasing Corporation. The other corporate defendants are subsidiaries of Prospect. All corporate defendants are wholly owned by defendant, Nathan Milikowsky and his brother Daniel Milikowsky. Plaintiff was also a member of Prospect's Board of Directors. He was fired in February 1984. Plaintiff testified that he was told that the company could not afford his salary. David Milikowsky testified that he and Nathan were unhappy with plaintiff's performance and that the company needed to cut overhead.
Plaintiff commenced this action seeking damages for wrongful *615 discharge under a variety of legal theories.[1] The only theory of recovery before us is based on Woolley v. Hoffmann-La Roche, Inc., 99 N.J. 284 (1985), mod., 101 N.J. 10 (1985). The trial judge ruled against plaintiff and we affirm.
In Woolley, the Court held that "an implied promise contained in an employment manual that an employee will be fired only for cause may be enforceable against an employer even when the employment is for an indefinite term and would otherwise be terminable at will." Id., 99 N.J. at 285-286. Plaintiff contends that four memoranda written by him in 1982 and 1983, constitute an employment manual and contain an implied promise that no employee, including the president of the corporation, will be fired without cause. We find it unnecessary to address the applicability of Woolley to a corporate president[2] because in our view the memoranda relied upon by plaintiff do not include an implied promise that employees will be fired only for cause.
The first memorandum, dated October 1, 1982, is not relevant. It is limited to plaintiff's establishment of a management committee on labor relations and identifies the committee members.[3] The third memorandum, dated November 3, 1982, was addressed to non-union employees and was limited to the subject of employee benefits. It addressed holidays, vacations, sick days, salary reviews, incentive bonus and group health and life benefits. The fourth memorandum, dated December 13, 1983, was addressed to all department heads regarding "1982 PERSONNEL PERFORMANCE REVIEWS." It announced that the corporation had developed a performance appraisal *616 procedure which would serve "as the basis for determining employee compensation increases each year." We fail to perceive in those three memoranda, considered individually or as a group, any implied promise not to terminate employment without cause. See Ware v. Prudential Ins. Co., 220 N.J. Super. 135 (App.Div. 1987).
Plaintiff relies primarily on the second memorandum titled Company Rules. It bears the legend "Effective 11/1/82," and is reproduced as an appendix to this opinion. These rules are clearly an attempt to define employee actions which will constitute industrial offenses in the eyes of Prospect and to give notice to employees of the elements of those offenses and the consequences to an employee if he engages in prohibited action. The rules provide no basis for an implied promise not to terminate without cause. Cf. Ware, supra. at 145-146.
In Woolley, that part of the manual relied upon by the Supreme Court was titled "Termination" and contained six numbered sections dealing with termination. The Woolley manual in section III defined "the types of termination" as layoff, discharge due to performance, discharge disciplinary, retirement and resignation. Therefore, the manual in Woolley supported the conclusion that it was intended to be a comprehensive treatment of the subject of employment termination. In the present case, plaintiff's memoranda do not purport to cover comprehensively the subject of termination.
Moreover, Section II of the Woolley manual declared the policy of Hoffman-La Roche to be "to retain to the extent consistent with company requirements, the services of all employees who perform their duties efficiently and effectively." There is no similar undertaking or expression of policy in the Prospect memoranda.
Affirmed.
*617 APPENDIX
COMPANY RULES
PROSPECT INDUSTRIES CORP.
Effective 11/1/82
The following company rules and work policies are developed to ensure the safety, dignity and productivity of every employee.
VIOLATIONS OF COMPANY RULES WILL RESULT IN DISCIPLINARY ACTION.
1st violation will result in a verbal warning to be noted in the employee's personnel file. First violation of rules marked with an asterisk (*) will result in immediate termination.
2nd violation will result in a written warning to be included in the employee's personnel file for the period of eighteen months.
3rd violation will result in a disciplinary layoff for one to five days.
4th violation within any 18 month period will result in discharge.
Disciplinary action will result from the commission of any of the following:
[*]1. Theft, or possession without proper authority of company property or property of another employee.
[*]2. Commission of Crime.
[*]3. Willful abuse or deliberate damage to company property, inclusive of safety equipment, or to the property of another employee.
4. Carelessness resulting in damage, destruction, or delay to work in progress, materials, or company property, tools, equipment, or the property of other employees.
[*]5. Altering or falsifying time card, inventory tickets, schedules or any other company document, or punching the time card of another employee.
[*]6. Fighting on company premises.
[*]7. Possessing, drinking, using or being under the influence of habit-forming drugs, and hallucinogenic drugs or substances such as LSD, Marijuana or alcoholic beverages on company premises at any time.
8. Insubordination. Refusal to obey order of supervision or refusal to perform job assignment.
9. Loitering or wasting time on any of the company premises during working hours or deliberately restricting production or inciting others to do so.
*618 10. Leaving department or plant without permission of supervisor.
11. Concealing or failure to report an error or mistake.
12. Disregard of safety rules or common safety practices, tampering or altering of safety equipment without authority, removal or not replacing equipment guards.
13. Any conduct or action which is disruptive to the normal course of business, at our plant or customer facilities.
14. Use of profane, obscene, or vile language in the presence of other employees, or customers.
15. Smoking or exposing flame in prohibited areas or at prohibited times or the use of other than "safety" matches where such use imperils lives and property, unless authorized by engineering.
16. Doing personal work on company time or with company equipment, or company material, without prior permission from management.
17. Creating or contributing to unsanitary conditions.
18. Sleeping on company property, or in company equipment unless authorized by management.
19. Use of company telephones for personal calls or use of pay stations during working hours without permission from department supervisor.
20. Failure to report personal injuries at once to your supervisor.
21. Eating in non-designated areas or at unauthorized times.
22. Gambling or soliciting bets on company property or company time.
23. Wearing improper clothing which would jeopardize your safety or that of your coworkers, or which presents an unfavorable image as a company representative.
24. Reporting for work without having presented Proof of U.S. Citizenship or documents satisfactory to the U.S. Immigration Service allowing work in the United States.
25. ABSENTEEISM AND TARDINESS ARE COVERED BY THE PLANT POINT SYSTEM.
26. Employees must wear gloves on those jobs determined by the safety committee. Gloves will be supplied by the company and replaced when a damaged pair is presented. (Employees may purchase gloves for $2.00 if they do not have a pair to return.)
27. Riding or allowing riders on company vehicles or equipment without permission.
NOTES
[1] Plaintiff filed a complaint and three amended complaints.
[2] Cf. N.J.S.A. 14A:6-16(1) which provides that a corporate officer appointed by a Board of Directors may be removed by the Board without cause but "without prejudice to his contract rights, if any."
[3] Prospect employed approximately 300 production workers and had 50 employees in sales, managerial and administrative positions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589955/ | 972 So.2d 179 (2008)
RICHARDSON
v.
McDONOUGH
No. 1D07-1888.
District Court of Appeal of Florida, First District.
January 3, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589965/ | 783 N.W.2d 871 (2010)
STATE
v.
OSBORNE.
No. 2008AP1519-CR.
Court of Appeals of Wisconsin.
January 14, 2010.
Petition for review denied.
(ABRAHAMSON, C.J. and BRADLEY, J., dissent). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589994/ | 783 N.W.2d 872 (2010)
STATE
v.
LIPSCOMB.
No. 2008AP2657.
Court of Appeals of Wisconsin.
January 12, 2010.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590025/ | 972 So.2d 828 (2007)
Lacy Ray BUTLER
v.
STATE of Alabama.
CR-05-0189.
Court of Criminal Appeals of Alabama.
May 25, 2007.
Lacy R. Butler, pro se.
Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
On Remand from the Alabama Supreme Court
WISE, Judge.
In accordance with the Supreme Court's holding in Ex parte Butler, 972 So.2d 821 (Ala.2007), the judgment of the circuit court is reversed and this cause is remanded to the Circuit Court of Autauga County for further proceedings consistent with the Supreme Court's opinion.
REVERSED AND REMANDED.
BASCHAB, P.J., and MCMILLAN, SHAW, and WELCH, JJ., concur.
WISE, J., concurs specially, with opinion.
WISE, Judge (concurring specially).
This Court is bound by decisions of the Alabama Supreme Court, see § 12-3-16, Ala.Code 1975, and "is without authority to overrule the decisions of [that] court," Jones v. City of Huntsville, 288 Ala. 242, 244, 259 So.2d 288, 290 (1972). Thus, we have no choice; we must reverse the circuit court's order granting the State's motion to reconsider its order entered on July *829 13, 2005, in which it granted Lacy Ray Butler's motion for sentence reconsideration based on its finding that Butler was a nonviolent convicted offender. In light of the Supreme Court's decision in Ex parte Butler, 972 So.2d 821 (Ala.2007), it appears that the appropriate course of action to be taken by the State when it is dissatisfied with the circuit court's ruling on an inmate's motion for sentence reconsideration is to petition this Court for a writ of mandamus, rather than file a motion for reconsideration.[1] Because, however, the State failed to do so in this case, the circuit court's resentencing of Baler in its July 13, 2005, order remains valid.
However, I write specially to urge the Supreme Court to revisit its holding in Ex parte Butler, and to express my agreement with Justice Stuart's dissent in that case. In her dissent, Justice Stuart noted:
"In my dissent in Holt v. State, 960 So.2d 740, 748 (Ala.2006), I stated: `[I]f an inmate has been convicted of a violent offense, he is a violent offender and is not eligible for sentence reconsideration under § 13A-5-9.1, Ala.Code 1975.' Thus, in my opinion, a court does not have jurisdiction to entertain a motion for sentence reconsideration filed by an inmate who has been convicted of an offense that is statutorily defined as a violent offense."
972 So.2d at 827 (emphasis added).
Justice Stuart further stated in her dissent that her interpretation of § 13A-5-9.1 was consistent with the strict construction applied by the Supreme Court in Kirby v. State, 899 So.2d 968 (Ala.2004), when it held that only the sentencing judge or presiding judge had jurisdiction to consider a motion for sentence reconsideration, noting:
"I maintain that a consistent strict construction of § 13A-5-9.1 also requires that jurisdiction vests in `the sentencing judge or presiding judge' to consider motions for sentence reconsideration only when the motion is filed by a `nonviolent convicted offender.' Therefore, if an inmate has been convicted of an offense that is defined by statute as a violent offense, he is a violent offender, and the sentencing judge or the presiding judge does not have jurisdiction to entertain the motion. To the extent this statement conflicts with Kirby, I would overrule Kirby.
"Here, Butler was convicted of first-degree rape and first-degree robbery, which are both violent offenses as defined by the legislature, see §§ 12-25-32(12), 12-25-32(13)a.10. and a.28., Ala. *830 Code 1975. Butler is a violent offender as a matter of law; consequently, neither the sentencing judge nor the presiding judge had jurisdiction to consider Butler's motion for sentence reconsideration under § 13A-5-9.1, Ala.Code 1975. Because in my opinion the court never acquired jurisdiction to consider Butler's motion for sentence reconsideration under § 13A-5-9.1, Ala.Code 1975, the court did not have jurisdiction to enter its July 13 order, and that order is void."
972 So.2d at 828.
Although I originally concurred with this Court's opinion in Holt v. State, 960 So.2d 726 (Ala.Crim.App.), writ quashed, 960 So.2d 740 (Ala.2006), and joined Judge Baschab's special concurrence, I am now persuaded by Justice Stuart's dissents both to the order quashing the writ in Holt v. State, and to the opinion in Ex parte Butler, supra, that this Court's decision in Holt was an overly broad construction of both § 13A-5-9.1 and the Alabama Supreme Court's opinion in Kirby v. State. Here, just as in Butler, the circuit court relying, at least in part, on this Court's rationale in Holt v. Stategranted Butler's motion for sentence reconsideration despite the fact that Butler had been convicted of a violent offense. In my opinion, the circuit court lacked jurisdiction to find that Butler was a nonviolent convicted offender, given that he had been convicted of first-degree rape and first-degree robbery both of which are statutorily defined violent offenses. See § 12-25-32(13)a.10. and a.28., Ala.Code 1975. The record further established that as the victim was leaving her place of employment a convenience storeButler forced her into her car at gunpoint, drove her to a deserted dirt road and raped her, while still holding the gun on her. Butler then took the victim back to her workplace, whereat gunpointhe forced her to open the safe and give him the money inside. As he fled, Butler told the victim that he had her driver's license, that he knew where she lived, and that he would find her and kill her if she reported the incident to the policeconduct totally inconsistent with a "nonviolent convicted offender." Indeed, the victim set out her feelings regarding the circuit court's resentencing Butler to a sentence allowing Butler to become eligible for release from prison in her written statement accompanying the State's supplement to its motion to reconsider. Although more than 20 years had passed since the offense, even the mere possibility of Butler's release terrified the victim:
"I fear for my life to this day. I at least can live knowing he is behind bars, but not if he is out. This is a violent man. I thought he was going to kill me in those woods and [no one would ever] know what happened to me. I was terrified. Anyone that would rape, rob, and kidnap someone in my opinion should never be given a chance to be out in a normal lifestyle. I pray that someone give me a chance to keep this animal where he belongs. I feel I will be the one he will be looking for because I am the one that put him [in prison]. Every time I think about him it brings back all the awful events of that horrible night. I am scared to death of this man."
(C. 98-99.)
Given these circumstances, it could not have been the intent of the Alabama Legislature, when it enacted § 13A-5-9.1, Ala. Code 1975, to allow overtly violent recidivists like Butler ever to be classified as nonviolent and, as a result, to be eligible for parole. Accordingly, to the extent that this Court's decision in Holt v. State allows violent convicted offenders such as Butler relief from the sentence imposed as a result of their violent conduct, that decision should be revisited to prevent an injustice *831 such as this one from occurring in future cases.
NOTES
[1] We note that the State has only a limited right to appeal an adverse ruling. The State may appeal a ruling holding a statute unconstitutional, a pretrial ruling suppressing evidence, a pretrial ruling dismissing the charges, a ruling granting a habeas corpus petition and ordering an individual's release from custody, or a ruling granting a petition for postconviction relief. See §§ 12-12-70, 12-22-90, and 12-22-91, Ala.Code 1975; Rule 15.7, Ala.R.Crim.P.; and Rule 32.10, Ala.R.Crim.P. In situations where the circuit court has granted a § 13A-5-9.1 motion, there appears to be no provision under Alabama law for the State to seek appellate review of that ruling. Accordingly, the State's only remedy would be by petitioning this Court for a writ of mandamus filed within seven days from the date of the circuit court's ruling, see Ex parte Thomas, 828 So.2d 952 (Ala.2001), because a motion to reconsider does not toll the time for filing a petition for a writ of mandamus. See Ex parte Sharp, 893 So.2d 571, 575 (Ala.2003). Thus, although the State could file a motion for reconsideration, and the circuit court would have the authority to modify its order within 30 days of its entry, the State would have no recourse if the court denied the motion for reconsideration more than seven days after the entry of its original order. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919265/ | 106 B.R. 161 (1989)
In re Arlo B. EDWARDS, Debtor.
GOLDEN GUERNSEY DAIRY CO-OP, a Wisconsin Corporation, Plaintiff,
v.
Arlo B. EDWARDS, Stephen J. Noble and Northwest Bank of Rockford, Defendants.
Bankruptcy No. 86 B 21075, Adv. No. 89 A 3055.
United States Bankruptcy Court, N.D. Illinois, W.D.
September 28, 1989.
Rance V. Buehler, West Dundee, Ill., for plaintiff.
William E. Schirger, Atty. Bradley Koch, Rockford, Ill., for defendants.
MEMORANDUM OPINION AND ORDER
RICHARD N. DeGUNTHER, Bankruptcy Judge.
This matter comes before the Court on a Motion to Dismiss the Complaint to Determine *162 Validity and Priority of Lien, filed by Stephen J. Noble (Noble) and Northwest Bank of Rockford (Northwest). Golden Guernsey Dairy Co-Op (Plaintiff) is represented by Attorney Rance V. Buehler. Noble and Northwest are represented by Attorney Bradley T. Koch. The Debtor, Arlo B. Edwards, is represented by Attorney William E. Schirger.
BACKGROUND
The facts alleged need only be stated here to the extent necessary to address the Motions presently before the Court. The Debtor filed a Chapter 13 Petition on August 11, 1986. Plaintiff filed a Proof of Claim indicating it held a Judgment in the approximate amount of $18,688.72 secured by a mortgage on a parcel of real estate owned by the Debtor. In the course of administration of the Chapter 13, the Debtor sought to sell certain real estate free and clear of liens and encumbrances. All of the real estate was encumbered by a first mortgage of Stillman Valley National Bank. The parcel encumbered by Plaintiff's second mortgage was also included in the proposed sale.
The sale was approved by the Court on August 28, 1987, allegedly without notice to Plaintiff. Noble purchased the real estate, including the parcel encumbered by Plaintiff's second mortgage. Northwest provided the financing for Noble's purchase and obtained a mortgage on the real estate. Approximately $78,073 of the proceeds of the sale was distributed to Stillman Valley Bank and the remainder, approximately $6,518.74, was held in a trust account pending further order. Shortly thereafter, the case was converted to Chapter 7 and a Trustee was appointed.
On February 17, 1989, Plaintiff filed a Motion to Vacate Order Approving the Sale, which was denied on July 3, 1989. Plaintiff also filed a Complaint to Determine Validity and Priority of Lien, alleging that although Plaintiff had filed a Proof of Claim which indicated its second mortgage on a parcel of the real estate sought to be sold, notice of the hearing on approval of the sale was not provided to the Plaintiff. The Complaint asked the Court to declare that:
(a) Plaintiff had a valid lien on the real estate;
(b) Plaintiff's lien was superior to that of Northwest; and
(c) the Order Approving the Sale was invalid pursuant to Section 363 of the Bankruptcy Code and the 5th and 14th Amendments.
Noble and Northwest filed a joint Motion to Dismiss the Complaint, alleging that the Court lacked jurisdiction to consider the issues raised in the Complaint. The Trustee filed a Motion to Distribute Funds, apparently abandoning any interest the estate may have had in the proceeds of the sale.
DISCUSSION
Plaintiff has alleged that jurisdiction exists over the present controversy based upon the following:
(b)(1) Bankruptcy judges may hear and determine all cases under Title 11 and all core proceedings arising under Title 11, or arising in a case under Title 11, referred under subsection (a) of this section, and may enter appropriate orders and judgments, subject to review under section 158 of this title.
(2) Core proceedings include, but are not limited to:
(A) Matters concerning the administration of the estate: . . .
(K) Determinations of the validity, extent, or priority of liens.
(N) Orders approving the sale of property . . .
28 U.S.C. Section 157(b).
Additionally, federal jurisdiction may exist, pursuant to Section 157(c), which provides:
(c)(1) A bankruptcy judge may hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11.
28 U.S.C. Section 157(c).
The issue of bankruptcy jurisdiction over disputes among creditors of a debtor has been addressed frequently by the Seventh *163 Circuit Court of Appeals. The court in In re Kubly, 818 F.2d 643, 645 (7th Cir.1987) provided a summation of the holdings as follows:
. . . disputes among creditors of a bankrupt come within the federal bankruptcy jurisdiction only if they involve property of the estate or if resolving two creditor's intramural squabble will affect the recovery of some other creditor.
The court in Kubly cited In re Xonics, Inc., 813 F.2d 127 (7th Cir.1987) and In re Chicago, Rock Island & Pacific R.R. Co., 794 F.2d 1182 (7th Cir.1986) (Sanborn II).
In Sanborn II, the court observed that bankruptcy jurisdiction over disputes between creditors as to rights in property does not follow the property after it is transferred from the bankruptcy estate. Once the property is sold, the parties must establish a new source of jurisdiction if the dispute is to be decided in the federal forum. The court then held that subject matter jurisdiction was lacking in a dispute between a lessee of real property and the ultimate purchaser of real property that was originally owned by the debtor. The court noted though, that the lessee did not claim that the transfer was invalid and did not attempt to undermine the sale.
The holding in Sanborn II was extended in Xonics to cases involving the abandonment of assets of the estate by the trustee. After stating that jurisdiction does not follow property after it is abandoned by the trustee, the court held that a party seeking relief through the bankruptcy court must establish a link between the disposition of claims to abandoned property and the treatment of claims of other creditors of the debtor. "Otherwise, anyone who could trace his title to a bankrupt could invoke federal jurisdiction to settle disputes affecting that property." Xonics, 813 F.2d at 131.
In the present case, the Debtor sold the real estate after approval by the Court, thereby transferring the property from the bankruptcy estate. In addition, after the case was converted, the Trustee effectively abandoned any interest the estate had in the proceeds of the sale. Under the rationale of Xonics and Sanborn II, another basis of jurisdiction must be established for this Court to hear the dispute as the property is no longer property of the estate. Therefore, Section 157(b)(2)(K) does not provide a basis for jurisdiction for the Court to hear the issues raised in Plaintiff's Complaint.
The other basis of jurisdiction alleged by Plaintiff to be relevant to the facts here, which was noted and ultimately rejected in both Xonics and Sanborn II, is the court's authority to enforce and effectuate the Order Approving Sale pursuant to Section 157(b)(2)(N).
The relief Plaintiff has requested includes a declaration that the Order approving the sale is invalid due to the Plaintiff's failure to receive notice of the sale. See Complaint, pg. 6, para. c. The Court typically has jurisdiction to entertain motions to vacate the orders pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. See McCall-Bey v. Franzen, 777 F.2d 1178 (7th Cir.1985). This Rule is made applicable to bankruptcy matters pursuant to Bankruptcy Rule 9024. See Fed.R. Bankr.P. 9024. However, Plaintiff is precluded from contesting the sale here because Plaintiff did not seek to vacate the Order within one year of its entry, as required by Rule 60(b).
The court in In re Met-L-Wood, Corp., 861 F.2d 1012 (7th Cir.1988) observed that a creditor's lack of notice of a sale of property of the estate warrants the setting aside of the order pursuant to Rule 60(b)(3). However, the court held that the order at issue could not be set aside, because the request was not made within one year, as required by Rule 60(b). See also In re Childress, 851 F.2d 926 (7th Cir.1988); and In re Chung King, Inc., 753 F.2d 547 (7th Cir.1985). Similarly here, Plaintiff's original Motion to Vacate Order and the Complaint presently before the Court were not filed until after the one year period had expired. Indeed, the Court has already denied Plaintiff's Motion to Vacate Order on those grounds. Therefore, Plaintiff is precluded from obtaining a declaration that *164 the Order Approving Sale is invalid and cannot establish jurisdiction on this basis.
The other relief Plaintiff requests does not fall within the scope of this Court's jurisdiction to enforce and effectuate its orders. Both Xonics and Sanborn II limit the scope of the court's jurisdiction in construing the terms of orders. The Court is not granted jurisdiction under the Federal Rules to hear collateral disputes arising under state law. Short of vacating the Order Approving Sale, which has been addressed above, the Court lacks jurisdiction to address the validity or priority of Plaintiff's lien.
These reasons also provide the basis for distinguishing the recent case of In re Korhumel Industries, Inc., 103 B.R. 917 (N.D.Ill.1989), which was not addressed by the parties. In Korhumel, a liquidating plan was confirmed by the court and the assets of the estate were sold to a company referred to in the opinion as "New Korhumel." Prior to the sale, but after confirmation of the Plan, a party was injured by a piece of equipment manufactured by the Debtor. New Korhumel filed an adversary proceeding in the bankruptcy court, seeking a declaratory judgment as to the rights of the tort victim against assets of New Korhumel. The bankruptcy court dismissed the complaint on the basis that the court lacked subject matter jurisdiction.
On appeal, the District Court reversed, holding that the bankruptcy court had jurisdiction to entertain New Korhumel's request for a declaratory judgment as to the rights of the tort victim. The court distinguished Sanborn II on the basis that New Korhumel's dealings with the trustee provided the jurisdictional grounds for the adversary proceeding, not the assets which were formerly owned by the debtor. The court distinguished Xonics on the basis that the determination as to liability for the tort victim's injuries could affect the amount to be distributed to the debtor's creditors, should New Korhumel ultimately seek indemnifcation from the debtor's estate.
Here, unlike Korhumel, the full force and effect of Sanborn II is applicable. The Court may not hold Plaintiff's lien to have priority or vacate the Order Approving Sale on the basis of ineffective notice to Plaintiff. The Order Approving Sale free and clear of all liens and encumbrances was not attacked within the avenues provided by the Bankruptcy Code or the Bankruptcy Rules and is valid. Met-L-Wood. Moreover, the relief Plaintiff requests goes well beyond the scope of the Order Approving the Sale. Hence, Sanborn II requires the finding that the Court lacks jurisdiction to hear Plaintiff's Complaint.
Similarly, unlike Korhumel, the results of Plaintiff's adversary proceeding will have no effect on the distribution to creditors of the Debtor, as required by Xonics. Plaintiff only requests a finding that the lien on property is valid and superior. Such a finding would not affect the distribution to creditors of the Debtor's estate. Indeed, the real estate at issue was sold at a price substantially below the amount of secured claims encumbering the property, thereby leaving no distribution to unsecured creditors. Therefore Xonics requires the finding that the Court lacks the jurisdiction to grant the relief Plaintiff requests.
Although Plaintiff did not specifically allege that the adversary proceeding was a "related to" proceeding pursuant to Section 157(c), the Court finds that it is not related to the Debtor's bankruptcy case. The issues raised in Plaintiff's Complaint do not address or affect the administration of the bankruptcy estate. As stated earlier, the proceeds of the sale were effectively abandoned by the Trustee and will not, in any way, affect the distribution to creditors. The real estate, being already transferred, will similarly not be connected with the administration of the estate. Hence, Plaintiff's Complaint does not constitute a "related to" proceeding pursuant to Section 157(c). See, In re Denalco Co., 57 B.R. 392 (N.D.Ill.1986); and In re Xonics, Inc., supra.
CONCLUSION
Based on the foregoing, it is evident that the Court lacks subject matter jurisdiction *165 to grant the relief Plaintiff has requested. Therefore, the Court concludes that Plaintiff's Complaint should be dismissed.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1736873/ | 727 N.W.2d 35 (2006)
STATE
v.
LEE
No. 2005AP2042-CR
Supreme Court of Wisconsin
December 5, 2006.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919345/ | 106 B.R. 75 (1989)
In re ALLEGHENY INTERNATIONAL, INC., Sunbeam Corporation, Sunbeam Holdings, Inc., Almet/Lawnlite, Inc., and Chemetron Corporation, Debtors.
Bankruptcy No. 88-00448, Motion Nos. 89-1836M, 89-4482M AI-07, AI-198.
United States Bankruptcy Court, W.D. Pennsylvania.
October 17, 1989.
*76 M. Bruce McCullough and Joan G. Dorgan, Buchanan Ingersoll, P.C., Pittsburgh, Pa., for debtors.
Owen W. Katz, Bernstein and Bernstein, P.C., Pittsburgh, Pa., and Michael R. Sment, Rich & Ezer, Los Angeles, Cal., for Dixie O'Dell, Gerald O'Dell, and Estate of Clyde Herman O'Dell.
MEMORANDUM OPINION
JOSEPH L. COSETTI, Bankruptcy Judge.
Two matters are presently before the court. Dixie O'Dell, Gerald O'Dell and the Estate of Clyde Herman O'Dell (the "O'Dell movants") have moved for relief from the automatic stay. The debtor has filed a Motion for Adjudication of Punitive Damages Issues (the "Motion for Adjudication"). The motion for relief from stay is granted, as set forth below. The Motion for Adjudication and denial of the punitive damages is not granted. However, if a court awards punitive damages to any creditor, the issue of punitive damages may be revisited in another procedural setting.
I. Facts
On February 20, 1988, Allegheny International, Inc. ("Allegheny International"), and four of its subsidiaries, Sunbeam Corporation, Sunbeam Holdings, Inc., Almet/Lawnlite, Inc., and Chemetron Corporation, filed petitions for reorganization under chapter 11 of the Bankruptcy Code. Fourteen other subsidiaries of Allegheny International, Inc. filed for relief under chapter 11 on May 3, 1988.[1]
The debtor, through various subsidiaries, manufactured consumer and other products which have been implicated in numerous civil actions under products liability and related theories. The O'Dell movants had instituted one such action in the United States District Court for the Northern District of Oklahoma (the "Oklahoma civil action") alleging, inter alia, that Clyde Herman O'Dell was fatally injured by an electric *77 blanket manufactured by Northern Electric Company, a division of Sunbeam Corporation. That civil action, as well as all others pending against the debtor, was stayed by the filing of the instant bankruptcies. 11 U.S.C. § 362.
Section 362(d) of the Bankruptcy Code, 11 U.S.C. § 362(d), in pertinent part, provides that "[o]n request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying or conditioning such stay (1) for cause. . . ." In this case, the court has developed a practice of granting relief from stay, with the debtor's consent, so that creditors asserting claims for personal injury and/or wrongful death, which this court is statutorily barred from hearing, 28 U.S.C. § 157(b)(2)(B), may liquidate their claims in the appropriate non-bankruptcy forums. The debtor has not consented to such relief, with respect to the O'Dell movants, because the Oklahoma civil action seeks a large award of punitive damages.[2] It has been argued that punitive damages should be heard separately from the personal injury damages claim.
The debtor is concerned that large punitive damages awards will frustrate its plan of reorganization. The debtor asserts that it currently faces "at least 53 claims . . . asserting punitive damages. Forty-three of such claims assert liquidated amounts aggregating approximately $167 million. The remaining . . . claims assert punitive damages in unliquidated amounts." Motion for Adjudication, ¶ 1. The debtor contends that it has expended, or will have to expend, significant time and money to litigate, case-by-case, claims involving punitive damages. Moreover, the debtor asserts that punitive damages claims will significantly interfere with consummation of a plan of reorganization. Specifically, the debtor contends that a large reserve would have to be created to provide for punitive damages claims which are entitled to receive cash at consummation. The reserve contemplated by the debtor "would add an impossible burden to the Debtor's cash requirements at consummation." Id. at ¶ 4. For these reasons, the debtor has moved for an adjudication that punitive damages claims shall be disallowed in this chapter 11.
II. In Re A.H. Robins
The Bankruptcy Code neither clearly mandates nor clearly proscribes the allowance of claims for punitive damages in reorganizations under chapter 11. The seminal case on the applicability of punitive damages in chapter 11 is In re A.H. Robins Co., Inc., 89 B.R. 555 (E.D.Va.1988). We will discuss that case with some detail, since it raises issues germane to the instant case and is central to the arguments of both the debtor and the O'Dell movants.
A.H. Robins ("Robins") was the exclusive manufacturer of the Dalkon Shield, an intrauterine device, which ultimately resulted in multitudinous personal injuries of varying degrees of severity. Injured users of the device began to file claims for compensation and punitive damages against the company in 1971. By 1985, when Robins sought relief under chapter 11 of the Bankruptcy Code, it had settled 9,238 claims for approximately $530,000,000, but "still faced over five thousand pending cases in state and federal court." Id. at 557.
As the result of just seven judgments rendered prepetition, various courts awarded approximately $13,227,000 in punitive damages against Robins. Additionally, "there were over $7,000,000 in punitive damages awarded that were pending appeal when the debtor filed for relief." Id. at 558. The district court noted that the punitive damages awards were unpredictable; such awards ranged from $5.00 to $7,500,000.00.
*78 Robins filed for relief under chapter 11 after the increasing awards, both compensatory and punitive, depleted its operating funds and eliminated its sources of credit. The plan of reorganization had to maximize recovery to the continuing stream of claimants, as well as other creditors. The district court concluded that punitive damages were inconsistent with that end.[3]
The district court rejected the argument of the Official Committee of Unsecured Creditors (the "Unsecured Creditors") that section 502(b)(1) of the Bankruptcy Code, 11 U.S.C. § 502(b)(1), proscribes punitive damages in a reorganization under chapter 11. That section, in pertinent part, provides as follows:
(b) Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim . . . as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that
(1) such claim is unenforceable against the debtor and property of the debtor, under . . . applicable law for a reason other than because such claim is contingent or unmatured. . . .
The Unsecured Creditors argued that further punitive damage awards against Robins would contravene "applicable law," as that term is used within 11 U.S.C. § 502(b)(1). The Unsecured Creditors' argument was premised on the majority rule that punitive damages have "only two purposes: (1) to punish the defendant, and (2) to deter future wrongdoing." Since "Robins had already expended more money in satisfaction of punitive damages awards than it had received from gross receipts of the sale of the Dalkon Shield . . . any further award of punitive damages could not deter the company from future wrongful conduct." Id. at 559. Therefore, the Unsecured Creditors reasoned that "any further award of punitive damages . . . would be contrary to applicable law," since "no legitimate purpose can any longer be served by the award of punitive damages." Id. at 559.
The Robins court dismissed the argument of the Unsecured Creditors by noting that the majority rule is not unanimous. The Robins court could not conclude that additional punitive damage could serve "no legitimate purpose" under a theory adopted by a minority jurisdiction. Thus, the court declined to use the majority rule as a broad brush to eliminate punitive damages, obviating the argument of the unsecured creditors.
The Dalkon Shield Claimants Committee (the "Claimants"), like the O'Dell movants in the instant case, argued that section 1129(a)(7)(A) provides for punitive damages. That section, in pertinent part, provides as follows:
(7) With respect to each impaired class of claims or interests
(A) each holder of a claim or interest of such class
. . . . .
(ii) will receive or retain under the plan on account of such claim or interest property of a value, as of the effective date of the plan, that is not less than the amount that such holder would so receive or retain if the debtor were liquidated under chapter 7 of this title on such date. . . .
The Claimants argued that section 1129(a)(7)(A) mandates that a "holder of a claim rejecting a plan must receive as much as the holder would receive if the debtor were liquidated under chapter 7." Id. at 560. The Claimants then noted that "Section 726(a)(4) provides for a fourth priority payment of an allowed claim for punitive damages in a chapter 7 liquidation." A fortiori, the Claimants argued, section 1129(a)(7)(A) requires punitive damages.
The district court flatly rejected the argument of the Claimants: "What the Claimants Committee overlooks or ignores is that Section 726 is not applicable to a Chapter 11 case." Id. at 560. The court noted that section 103 of the Bankruptcy Code, 11 U.S.C. § 103, which governs the *79 applicability of the various chapters of the Bankruptcy Code, provides that subchapters I and II of chapter 7, which encompass section 726, "apply only in a case under such chapter." However, it is fair to observe that even in chapter 7, punitive claims are subordinated to fourth priority.
The Robins court then discussed the history of disallowing claims because of equitable considerations: "In the past, bankruptcy courts have resorted to their equitable powers to determine whether a claim will be allowable . . . [T]he court has far reaching powers to `sift the circumstances surrounding any claim to see that injustice or unfairness is not done in administration of the bankrupt estate.'" Id. at 561 (quoting Pepper v. Litton, 308 U.S. 295, 308, 60 S. Ct. 238, 246, 84 L. Ed. 281 (1939)). The district court determined that the reorganization of Robins would fail unless punitive damages were disallowed. In so holding, the court recognized the "wild card characteristic" of punitive damages. Id. at 562. The court observed that punitive damages can never be accurately estimated. Consequently, the court decided that the debtor could never achieve the several steps necessary to confirming a plan of reorganization:
[T]he inability to quantify the potential amount of Robins' liabilities for punitive damages claims would make it virtually impossible for this Court to have determined whether Robins would be capable of meeting its obligations under the plan. It would be similarly difficult . . . to determine whether the "best interest of the creditors" test of Section 1129(a)(7) had been met or, in the event any class had rejected the plan, whether the elements of cramdown under Section 1129(b)(2)(B) could have been satisfied. Given the unquantifiable nature of punitive damage claims, it is also unlikely that a disclosure statement which meets the "adequate information" standard of Section 1125 could have been provided to creditors. . . .
Id.
III. Applicability of In re A.H. Robins
We find the reasoning of the district court in Robins to be very sound. We concur that section 502 clearly does not proscribe punitive damages. We also agree that section 1129(a)(7)(A) does not mandate punitive damages because section 726(a)(4) is inapplicable to chapter 11. In doing so, we reject the absolute position of the O'Dell movants in the instant case.
Even more appealing to this court in circumstances such as In re A.H. Robins and In re Johns-Manville Corp., 68 B.R. 618 (Bankr.S.D.N.Y.1986), aff'd, 78 B.R. 407 (S.D.N.Y.1987), aff'd sub nom., Kane v. Johns-Manville Corp., 843 F.2d 636 (2d Cir.1988), is the statistical probability that early punitive damages would exhaust the estate before similar, but later, personal injury claims could be paid. This would violate long-standing bankruptcy distribution principles and would appear to support special classification and review of punitive damages.
We believe that the equitable powers of the bankruptcy court enable us to eliminate, subordinate, or limit punitive damages. In this connection, we share the same concern as did the district court in In re Robins concerning the "wild card" effect of punitive damages. As evidenced by the Motion for Adjudication, the debtor also shares that concern. However, we decline to take any action to limit punitive damages at this time, because we believe such action is premature. It appears that no extraordinary punitive damages claims have yet been liquidated. Nor do the pending punitive damages claims implicate any inherently dangerous products.
Although we have noted our concern about the potential wild card effect, the circumstances in the instant case appear to differ greatly from those in In re A.H. Robins. Robins was a solvent company until it was deluged by products liability awards, both compensatory and punitive. Moreover, its prospective liability was staggering. Allegheny International had numerous problems which caused the need for chapter 11, but the court is unaware of any suggestion that the debtor's financial decline was caused by potential products *80 liability damages. The debtor manufactured relatively mundane products, such as electric blankets, which do not appear to have caused the widespread harm as did the Dalkon Shield or asbestos. See In re Johns-Manville Corp. Moreover, the debtor continues to manufacture these products Robins removed the subject product from the market. Although punitive damages may be a significant problem for Allegheny International, they are not the major problem facing this debtor. As the O'Dell movants suggest, the record needs to be developed further with respect to these matters. Among other things, this court is unable to determine the debtor's liquidated exposure to punitive damages. The mere inclusion by a plaintiff of a punitive damage claim is no indication of its merit.
IV. The Evolving Law of Punitive Damages
The law of punitive damages is presently in a state of flux. The Supreme Court has recently held that punitive damages do not violate the Excessive Fines Clause of the Eighth Amendment of the Constitution. Browning Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., ___ U.S. ___, 109 S. Ct. 2909, 106 L. Ed. 2d 219 (1989). In that case, however, the court stated that it may consider, in the appropriate case, whether excessive punitive damages contradict the Due Process Clause of the Fourteenth Amendment. Id. 109 S.Ct. at 2921.
One district court has attempted to limit punitive damages by using the Due Process Clause. In Juzwin v. Amtorg Trading Corp., 705 F. Supp. 1053, 1065 (D.N.J.1989), a case seeking punitive damages for injuries allegedly caused by asbestos, the court declared that "[d]ue process requires that a limit be placed upon a defendant's liability for punitive damages for a single cause of conduct." Therefore, the court ruled that it would dismiss claims for punitive damages with respect to individual defendants in the case sub judice upon a showing that those defendants had already been subjected to punitive damages. Subsequently, however, the district court granted reconsideration of its order. Juzwin v. Amtorg Trading Corp., 718 F. Supp. 1233 (D.N.J. 1989). Although the court reiterated its due process concerns, the court was concerned "about the unfairness of applying its ruling retroactively absent prior notice to those adversely affected. . . ." Id. The court also observed that the only equitable remedy to the due process problem is uniform legislation.
The litigation literature asserts that punitive damages have become a litigation strategy to encourage other settlements. This may be true, but we are unable to make any such determination until we begin to learn the debtor's actual liability for punitive damages.
V. Conclusion
In light of the judicial uncertainty about limiting punitive damages, the court believes that a blanket prohibition against punitive damages at this time would be improvident. Because the essence of bankruptcy jurisdiction is the allowance or disallowance of claims, the allowance or disallowance of punitive damages is more appropriate when a liquidated claim is returned to the bankruptcy court and when the debtor or other party objects individually to that claim. Pepper v. Litton, 308 U.S. 295, 60 S. Ct. 238. Alternatively, such matters may be germane to the plan of reorganization. At some later date, however, the court may determine that punitive damages are inappropriate in toto or may limit punitive damages in some other way, such as fixing an amount of punitive damages in toto and placing such punitive damages in a separate class to be distributed pro rata. Any of the aforementioned procedures would be consistent with the equitable power described in In re Robins.
For the reasons stated above, the Motion for Adjudication is denied without prejudice. The motion of the O'Dell movants for relief from stay is granted. However, we are aware that a finder of fact may adjust an award upward to compensate for the perception that chapter 11 results in a recovery of less than 100%. Therefore, to protect the debtor from an *81 excessive award of punitive damages, we will order the O'Dell movants not to disclose, or request a result in the Oklahoma civil action based on, the instant bankruptcy proceeding. Additionally, any award of punitive damages must be found separately from the economic damages which are also liquidated.
NOTES
[1] In this opinion, the court refers to both groups of debtors collectively as the debtor or Allegheny International.
[2] The record is unclear about the exact amount of punitive damages. The debtor represents that the complaint in the Oklahoma civil action "seeks about a million in punitive damages, and in addition, there's pending a motion in the District Court in Oklahoma to amend the complaint to increase the punitive damage demand for $10,000,000." Transcript of April 20, 1989 hearing, at page 3.
[3] The opinion of the district court is unclear about the procedural setting underlying its decision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589997/ | 14 So.3d 1179 (2009)
Donald WENDT, Kenny Wendt and Clarke Warne, Appellants,
v.
LA COSTA BEACH RESORT CONDOMINIUM ASSOCIATION, INC., Appellee.
No. 4D08-2482.
District Court of Appeal of Florida, Fourth District.
June 17, 2009.
Rehearing Denied September 3, 2009.
*1180 Keith T. Grumer of Grumer & Macaluso, P.A., Fort Lauderdale, for appellants.
Scott M. Zaslav and Michael W. Moskowitz of Moskowitz, Mandell, Salim & Simowitz, P.A., Fort Lauderdale, for appellee.
GERBER, J.
Appellants challenge a trial court order dismissing with prejudice their action for indemnification. We affirm because appellants cannot state such a cause of action under the circumstances of this case.
Appellee, La Costa Beach Resort Condominium Association, Inc., operates a residential time share complex. Appellants, Donald Wendt, Kenny Wendt, and Clarke Warne, are former directors of the association. The association sued the directors for breach of fiduciary duty for allegedly misappropriating time share weeks for their own benefit. A jury found that the directors breached their fiduciary duties and that the association's damages were $275,000. On the directors' counterclaim, the jury found that the association breached an implied contract with the directors and that the directors' damages, collectively, were $57,000. The directors filed a motion for new trial, which the trial court granted.
The directors then filed a separate complaint against the association, seeking contractual and statutory indemnification for having to incur attorney's fees and costs to defend the association's suit. The directors based their contractual indemnification claim upon the association's bylaws at article XII, entitled "Indemnifications":
The Association shall indemnify every Director ... against all loss, cost and expense reasonably incurred by him in connection with any action, suit or proceeding to which he may be made a party by reason of his being or having been a Director ... of the Association, except as to matters wherein he shall be finally adjudged in such action, suit or proceeding, to be liable for or guilty of gross negligence or willful misconduct....
The directors based their statutory indemnification claim upon various provisions of section 607.0850, Florida Statutes (2007), entitled "Indemnification of officers, directors, employees, and agents." That statute allows a director to request a court to order a corporation to indemnify a director if the director reasonably incurs expenses, including counsel fees, in connection with any proceeding by reason of having been a director. According to subsection (1), the director must show that he or she acted in good faith and in a manner the director reasonably believed to be in, or not opposed to, the best interests of the corporation. Subsection (7) provides that the director shall not be entitled to indemnification if the director violated a criminal law, derived an improper personal benefit, or engaged in willful misconduct or a conscious disregard for the best interests of the corporation in certain proceedings. *1181 Subsection (9)(c), however, states that a court may order indemnification if the court determines that the director is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, regardless of whether such person met the standard of conduct set forth in subsections (1) or (7).
The association filed a motion to dismiss the directors' indemnification action, arguing that the complaint failed to state a cause of action for either contractual or statutory indemnification, and that the directors were required to have filed those claims as compulsory counterclaims in the original lawsuit. In a brief order, the trial court agreed with the association's arguments and dismissed the directors' action with prejudice. The directors appeal that order to this court.
Our review is de novo. See Wallace v. Dean, 3 So.3d 1035, 1045 (Fla.2009) ("We review de novo the dismissal of a complaint for failure to state a cause of action."); Whigum v. Heilig-Meyers Furniture, Inc., 682 So.2d 643, 646 (Fla. 1st DCA 1996) (a trial court's characterization of an action as a compulsory counterclaim presents a pure issue of law which must be resolved by the de novo standard of review). "In reviewing an order granting a motion to dismiss, this court's gaze is limited to the four corners of the complaint." Goodall v. Whispering Woods Ctr., L.L.C., 990 So.2d 695, 697 (Fla. 4th DCA 2008). "The reviewing court `must accept the allegations of the complaint as true, but do[es] not defer to the trial court's conclusions regarding the sufficiency of the allegations.'" Jimenez v. Cmty. Asphalt Corp., 968 So.2d 668, 670 (Fla. 4th DCA 2007) (citation omitted). "In other words, a `dismissal should be granted only when it has conclusively been demonstrated that plaintiff can prove no set of facts whatsoever in support of the cause of action.'" Id. (citation omitted).
The directors cannot state an action for indemnification under the circumstances of this case. "Indemnity is a right which inures to one who discharges a duty owed by him, but which, as between himself and another, should have been discharged by the other and is allowable only where the whole fault is in the one against whom indemnity is sought." Houdaille Indus., Inc. v. Edwards, 374 So.2d 490, 492-93 (Fla.1979). "It shifts the entire loss from one who, although without active negligence or fault, has been obligated to pay, because of some vicarious, constructive, derivative, or technical liability, to another who should bear the costs because it was the latter's wrongdoing for which the former is held liable." Id. at 493. "Stated differently, an indemnity right exists when one is left open to liability due to the wrongful acts of another." Time Ins. Co. v. Neumann, 634 So.2d 726, 729 (Fla. 4th DCA 1994). The classic example of an indemnity action is when a party held vicariously liable to a third person seeks recovery from another party whose action caused the damage. Safecare Med. Ctr. v. Howard, 670 So.2d 1020, 1022 (Fla. 4th DCA 1996).
Here, the directors have not alleged that they have discharged a duty which the association should have discharged, that they have been left open to liability due to the association's wrongful acts, or that they have been held vicariously liable to a third person and seek recovery from the association whose action caused the damage. Rather, the directors, wholly ignoring the definition of "indemnity," have sought to transform the remaining language in bylaws article XII and section 607.0850 into a vehicle for recovering their attorney's fees and costs if they become the prevailing party in the association's *1182 suit for breach of fiduciary duty. The trial court correctly dismissed the directors' attempt to engraft that interpretation upon the bylaws and the statute.
The trial court's decision is consistent with prior decisions of this court and our supreme court. See Century Vill., Inc. v. Chatham Condo. Ass'ns, 387 So.2d 523, 524 (Fla. 4th DCA 1980) ("It is quite obvious that the indemnification clause was not intended to apply to actions between the lessor and lessees, but rather to claims of third parties against the lessor."); Penthouse N. Ass'n v. Lombardi, 461 So.2d 1350, 1352-53 (Fla.1984) ("The fact that this is an action for breach of fiduciary duty and unjust enrichment further convinces us that the lessors indemnification argument must fail."); Old Port Cove Prop. Owners Ass'n v. Ecclestone, 500 So.2d 331, 336 (Fla. 4th DCA 1986) ("We are convinced that the reasoning of Penthouse and Century Village applies to the facts of this case.").
The directors argue that two cases from this court recognize a right to indemnification in actions between a corporation and its directors. Those cases do not stand for that proposition. See O'Brien v. Precision Response Corp., 942 So.2d 1030, 1032-33 (Fla. 4th DCA 2006) (pursuant to section 607.0850, trial court should have awarded attorney's fees from corporation to chief operating officer who successfully defended claims which third party asserted against him); Hill v. Palm Beach Polo & Country Club Prop. Owners Ass'n, 885 So.2d 879, 880-81 (Fla. 4th DCA 2004) (collateral estoppel precluded property owner from bringing action against property owners' association to recover litigation expenses pursuant to association's bylaws).
In reaching today's decision, we certify conflict with the First District's opinion in Turkey Creek Master Owners Ass'n v. Hope, 766 So.2d 1245 (Fla. 1st DCA 2000), which states:
We note that section 607.0850 is more likely to be applied when [a] corporate employee or director is sued by a third party in relation to the actions of the employee or director as a corporate agent. In such a case, the corporate employer may be required to indemnify the agent for the expenses of his or her defense. However, the statute also provides for indemnification in a case such as this one where a corporation has sued its own agent. In this situation, the corporation faces the possibility of being required to pay the legal fees and expenses of the very party it is suing, and it is therefore especially important to determine whether the circumstances justify a finding that the agent is reasonably entitled to indemnification for attorney's fees.
Id. at 1247 (emphasis added).
The directors contend that they should have been afforded an opportunity to amend their complaint to allege additional facts to support their cause of action. Because any attempt to amend the complaint to state the requisite allegations for an indemnification action would be futile, the trial court properly entered the dismissal with prejudice. See Fields v. Klein, 946 So.2d 119, 121 (Fla. 4th DCA 2007) ("Leave to amend should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile.").
Because the trial court rightly found that the directors' complaint for contractual and statutory indemnification did not state a cause of action, it is not necessary for this court to address the trial court's alternative ruling that the directors were required to have filed those claims as compulsory *1183 counterclaims in the original lawsuit.
Affirmed.
FARMER and HAZOURI, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590127/ | 270 S.W.3d 440 (2008)
BARSTO CONSTRUCTION, INC., Appellant,
v.
GLADSTONE SENIOR PARTNERS, L.P., Respondents.
No. WD 69266.
Missouri Court of Appeals, Western District.
November 18, 2008.
*441 Thomas M. Moore, Kansas City, MO, for appellant.
William L. Burk, Kansas City, MO, for respondent.
RONALD R. HOLLIGER, Judge.
Barsto Construction, Inc., (Barsto) appeals the trial court's setting aside of a default judgment entered in its favor against Gladstone Senior Partners, LP (Gladstone). On appeal, Barsto argues that the court abused its broad discretion to set aside the default judgment because Gladstone's submission of an affidavit attesting that it believed it updated its Missouri registered agent as to the address of its new general partner did not establish "good cause." We affirm the trial court's judgment because the affidavit was sufficient to establish good cause and the evidence does not show a reckless design to impede the judicial process.
Factual and Procedural Background
Barsto took a default judgment against Gladstone, a Texas Limited Partnership, registered to do business in Missouri, when Gladstone failed to respond to a lawsuit involving a construction contract. Gladstone's registered agent in Missouri was Corporation Service Company (CSC), who Gladstone had instructed to forward litigation documents to Gladstone's general partner in Texas. At the time the suit was filed, Gladstone's general partner was Affordable Multi-Family, L.L.C. (Affordable), whose mailing address was in Long Beach, California. However, CSC's records showed the address of Gladstone's former general partner in Dallas, Texas, because Gladstone failed to inform CSC of the change in general partner, which happened four years earlier. According to the amendment to Gladstone's certificate of limited partnership filed with the Texas Secretary of State, CSC also acts as Gladstone's registered agent in Texas.
*442 Gladstone first found out about the default judgment against it in this case when Barsto successfully moved to dismiss a federal lawsuit brought against it by Gladstone. That suit involved the same subject matter as the Missouri litigation and was barred on grounds of res judicata. Up to that point both parties were in regular contact, and Gladstone was under the impression that the parties would continue to try to resolve the dispute through arbitration or mediation. Barsto's counsel did not inform Gladstone of the litigation pending against it or the resulting default judgment.
In October of 2007, Gladstone moved the circuit court to set aside the default judgment under Rule 74.05(d). In support of the motion, Gladstone attached the affidavit of Brian Gentner, who attested that he "believed" he had taken the proper steps to ensure timely service of court documents and that the mistake in failing to update CSC was inadvertent. The motion was granted and Barsto appeals.
Discussion
We apply an abuse of discretion standard to the circuit court's setting aside of a default judgment under Rule 74.05(d). Brungard v. Risky's Inc., 240 S.W.3d 685, 687-88 (Mo. banc 2007). However, while the trial court's discretion to deny a motion to set aside a default judgment is "narrowed," its discretion to grant such a motion is "broad." Id. at 687. "Such deference has been afforded whether the evidence supporting the motion to set aside the default was presented through exhibits and affidavits or through live testimony." Id.
"Upon motion stating facts constituting a meritorious defense and for good cause shown ... a default judgment may be set aside." Rule 74.05(d). "`Good cause' includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process." Id. "[A] default judgment can ... be vacated even if the movant negligently failed to file a timely answer." J.E. Scheidegger Co., Inc. v. Manon, 149 S.W.3d 499, 504 (Mo.App. S.D. 2004). "[W]here a reasonable doubt exists as to whether the conduct was intentionally designed or irresponsibly calculated to impede the work of courts, it should be resolved in favor of good faith." Id. (internal quotation marks omitted). The burden to show good cause is on the party moving to set aside the default judgment. Brungard, 240 S.W.3d at 688.
Barsto does not contend that Gladstone had no meritorious defense, but only that the trial court's acceptance of Gladstone's explanation for failing to appear was an abuse of its discretion. Because Barsto does not argue that Gladstone intended to impede the judicial process, we must determine whether the trial court abused its discretion in determining that Gladstone did not do so recklessly. We defined reckless conduct in McElroy v. Eagle Star Group, Inc., 156 S.W.3d 392, 403-04 (Mo. App. W.D.2005), abrogated on other grounds by Pyle v. FirstLine Transp. Sec., Inc., 230 S.W.3d 52, 56-57 (Mo.App. W.D. 2007) (internal citations omitted):
In the Rule 74.05 context, "reckless" has been defined as meaning "lacking in caution" or "deliberately courting danger." One of the quintessential characteristics of reckless conduct is set out in the latest edition of Black's Law Dictionary:
Intention cannot exist without foresight, but foresight can exist without intention. For a man may foresee the possible or even probable consequences of his conduct and yet not desire them to occur; none the less if he persists on his course he knowingly runs the risk of bringing about the unwished result. To describe this *443 state of mind the word `reckless' is the most appropriate. The words `rash' and `rashness' have also been used to indicate this same attitude.
This test of foreseeability may also be met objectively: "`To be reckless, a person makes a conscious choice of his course of action, either with knowledge of the serious danger to others involved in it or with knowledge of the facts which would disclose the danger to a reasonable man.'" One may also be said to have acted recklessly if he or she is intentionally indifferent to a harmful consequence in that he or she simply "does not care about the consequences of his or her actions."
In Brungard, the motion court set aside a default judgment based entirely on an affidavit from the defaulting company's owner/registered agent. 240 S.W.3d at 686. The owner attested that he "thought that he faxed the [summons] to his insurance agent for delivery to his insurance carrier," and that he "did not intentionally ignore this matter." Id. at 686. The Supreme Court affirmed the motion court's judgment, holding that (1) the correct standard of review is abuse of discretion (as discussed above), and (2) the "affidavit provides an adequate basis to support a finding that [affiant] did not intentionally impede the judicial process." Id. at 687, 688. The court found that the "affidavit stating [defaulting party's] belief that he provided notice by appropriately forwarding the suit papers to his insurance company is sufficient to demonstrate that he was neither reckless nor intentionally dilatory in failing to file a timely answer." Id. at 688.
Here, Gentner, Vice President of Affordable, Gladstone's general partner, attested that he believed the amendment to Gladstone's certificate of limited partnership, filed with the Texas Secretary of State, would update the records of CSC in Missouri. The record also showed that CSC's Texas office was informed of the change in general partner and new California address. Gentner also attested that the error was inadvertent. Regardless of how unreasonable this belief was, it does not negate good cause unless it included an element of "foresight" or knowing disregard of risk that it would impede the judicial process. See McElroy, 156 S.W.3d at 403-04. Gladstone presented competent evidence of the lack of such mindset in the form of Gentner's affidavit.
Although there can be no doubt that Gladstone's failure to update its Missouri registered agent as to the address of its new general partner was negligent, we can not say, in light of Brungard, that the trial court's determination that it was not recklessly designed to impede the judicial process was an abuse of that court's broad discretion.
Barsto further argues that the registered agent, CSC, acted recklessly in sending the litigation documents to Gladstone's former general partner "without bothering to question why Gladstone was failing to respond." While it is true that the conduct of a company's registered agent is attributable to the company itself in this context, McElroy, 156 S.W.3d at 404 n. 8, CSC carried out the precise directions given to it by Gladstone. We do not think that doing so was reckless, as it showed no conscious disregard of the risk that Gladstone would not receive the documents.
The judgment is affirmed and the matter is remanded to the trial court for further proceedings.
JOSEPH M. ELLIS, Presiding Judge, and JOSEPH P. DANDURAND, Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590138/ | 270 S.W.3d 662 (2008)
Mary S. ROBERTS, Appellant,
v.
The STATE of Texas, Appellee.
No. 04-08-00393-CR.
Court of Appeals of Texas, San Antonio.
October 1, 2008.
*663 Leslie Werner de Soliz, Soliz Law Group, Victoria, TX, for Appellant.
Susan D. Reed, Criminal District Attorney, San Antonio, TX, for Appellee.
Sitting: ALMA L. LÓPEZ, Chief Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.
OPINION
Opinion by: ALMA L. LÓPEZ, Chief Justice.
The motion for rehearing filed by appellant, Mary S. Roberts, is denied. This court's opinion and order dated August 27, 2008, are withdrawn, and this opinion and judgment are substituted. We substitute this opinion to address Roberts's arguments regarding this court's prior holding in Rivera v. State, 940 S.W.2d 148 (Tex. App.-San Antonio 1996, no pet.).
The trial court imposed sentence in the underlying case on February 21, 2008. Because appellant timely filed a motion for new trial on March 20, 2008, the notice of appeal was due to be filed on May 21, 2008. TEX.R.APP. P. 26.2(a)(2); Rodarte v. State, 860 S.W.2d 108, 109 (Tex.Crim.App. 1993) (time limit for perfecting appeal from judgment of conviction begins to run on day sentence is imposed or suspended in open court, not on day written judgment is signed). A motion for extension of time to file the notice of appeal was due within the fifteen-day grace period, which expired on June 5, 2008. TEX.R.APP. P. 26.3. Appellant filed her notice of appeal in the trial court on May 30, 2008, but did not file a motion for extension of time.
On June 26, 2008, we ordered appellant to show cause in writing why this appeal should not be dismissed for lack of jurisdiction, noting "When a notice of appeal is filed within the fifteen-day grace period but no timely motion for extension of time is filed, the appellate court lacks jurisdiction." Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App.1996). Appellant responded by requesting that this court construe her Statement of Inability to Afford Counsel, which was filed on May 20, 2008, as a timely notice of appeal citing cases from other appellate courts as support. In our original opinion, we relied on our prior decision in Rivera, 940 S.W.2d at 149, in which this court expressly rejected a request to construe a pauper's oath and request for appellate counsel as a timely notice of appeal. In her motion for rehearing, Roberts explained that she failed to cite Rivera in her response or make any effort to distinguish it because subsequent rule changes have adopted a more liberal approach in determining the sufficiency of a notice of appeal. Roberts cites the Texas Court of Criminal Appeals's decision in Jones v. State, 98 S.W.3d 700 (Tex.Crim. App.2003), and Few v. State, 230 S.W.3d 184 (Tex.Crim.App.2007), as support.
*664 Although the opinion in Few contains general language regarding the liberalization of the prior jurisdictional approach taken by the Court of Criminal Appeals, in Few, the appellant had filed a timely notice of appeal but included the wrong trial court cause number. 230 S.W.3d at 186. The court noted that the Texas Rules of Appellate Procedure were amended in 2002 "to prevent trivial, repairable mistakes or defects from divesting appellate courts of jurisdiction to consider the merits of both State and defense appeals in criminal cases. Defective notices of appeal may now be amended at any time before the appealing party's brief is filed[.]'" Id. at 187. The Few court cited the court's prior opinion in Bayless v. State, which also addressed the ability to amend a notice of appeal to correct a defect prior to the filing of the appellant's brief. Id. at 189 (citing Bayless v. State, 91 S.W.3d 801 (Tex.Crim.App. 2002)). However, the Few court also stated, "The rules thus `retain the requirement of notice of appeal. But they now permit amendment to cure apparently any defects in notices of appeal.'" Id. (quoting 43A George E. Dix & Robert O. Dawson, Criminal Practice and Procedure § 43.251a at 192 (2d ed. Supp.2005)).
Jones involved a habeas application for an out-of-time appeal, however, it can be read as adopting a more liberal approach to construing documents as notices of appeal. The Jones court noted the question was "whether the appellant sufficiently manifested his desire to appeal so as to put the trial court on notice that it must determine whether the appellant was indigent and, if so, appoint appellate counsel." 98 S.W.3d at 702. The court noted that appellant's trial attorney filed a "Motion to Withdraw and Defendant's Request for Court Appointed Counsel" with an affidavit of indigency attached. Id. The court further noted that the motion contained a paragraph specifically stating appellant's intent to request appointed counsel "`for the purpose of a motion for new trial, appeal and ... a copy of the court reporter's notes.'" Id. at 703. The court concluded, "[t]he language of the motion and affidavit makes clear the appellant's desire to appeal." Id. As a result, the court instructed the lower court to grant an out-of-time appeal. Id. at 704.
In Pharris v. State, 196 S.W.3d 369, 372 (Tex.App.-Houston [1st Dist.] 2006, no pet.), the appellant filed a notice of appeal after the trial court signed an order relating to appellant's bond. Because the appellant did not file a second notice of appeal after the trial court issued a subsequent order modifying the bond, the State argued that the appeal was moot as to the first order, and the court lacked jurisdiction to consider the second order. 196 S.W.3d at 372. The Houston First Court, citing Jones, rejected this argument noting that the appellant had filed a "Motion to Supplement Record on Appeal" stating the appellant's desire to challenge that order also. Id. at 372-73. The Houston First Court asserted that this document was sufficient to demonstrate appellant's desire to appeal. Id. at 372; see also Hall v. State, No. 11-05-00222-CR, 2006 WL 944647, at *1 (Tex. App.-Eastland Apr.13, 2006, pet. ref'd) (construing motion requesting appointment of appellate attorney as a sufficient notice of appeal).
On the other hand, in Alejandro v. State, No. 14-06-00539-CR, 2006 WL 2074819, at *1 (Tex.App.-Houston [14th Dist.] July 27, 2006, pet. ref'd) (not designated for publication), appellant's counsel asked the Houston Fourteenth Court to consider appellant's pauper's oath and a designation of record on appeal as sufficient to show appellant's intent to appeal. The Houston Fourteenth Court held, "Although the Court of Criminal Appeals may consider *665 these facts in determining whether to grant an out-of-time appeal, Jones v. State, 98 S.W.3d 700, 703-04 (Tex.Crim.App. 2003), the court of appeals must dismiss wheren [sic] no timely notice of appeal has been filed." Alejandro, 2006 WL 2074819, at *1 (citing Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App.1998)).
Similarly, in Currie v. State, No. 09-06-225-CR, 2006 WL 2506419, at *1 (Tex. App.-Beaumont Aug. 30, 2006, no pet.) (not designated for publication), the Beaumont court was asked to consider a document entitled "Pauper's Oath on Appeal" as a notice of appeal. The Beaumont court interpreted Jones as holding an appeal was not timely perfected when a motion to withdraw and request for appointed counsel was filed but not a notice of appeal. Id. The Beaumont court noted, "The Court of Criminal Appeals held the documents put the trial court on notice of the defendant's desire to appeal, but did not hold that the documents functioned as a notice of appeal." Id. Although the court granted an out-of-time appeal in Jones, the Beaumont court asserted, "As an intermediate appellate court, we are not authorized to grant out-of-time appeals." Id.
Finally, in Baez v. State, 235 S.W.3d 839 (Tex.App.-Texarkana 2007, pet. ref'd), the Texarkana court refused to construe a motion to withdraw as counselwhich mentioned the defendant's desire to appeal and the defendant's expressed interest in appealing as a notice of appeal. 235 S.W.3d at 840-41. The Texarkana court acknowledged the court's holding in Few and its need to "attempt to be very liberal in the construction of instruments which are filed so as to not deny the appeal of a criminal case based on the want of proper form." Id. at 840. The Texarkana court concluded, however, that even under the more relaxed or liberal standard directed by the Texas Court of Criminal Appeals, it was not convinced that it should construe a statement extracted from an attorney's motion to withdraw as a notice of appeal. Id. The Texarkana court reasoned:
[S]hould we deem this type of language (which is hidden within a document which bears no apparent relation to providing a notice of appeal) adequate, practically any language contained within any type of document that indicated that Baez was considering filing an appeal would be sufficient to serve as a notice of appeal. We believe that to do so would be tantamount [to] dispensing with the necessity of filing any such notice. Without direction from the Texas Court of Criminal Appeals, we will not saddle ourselves with the added responsibility of exploring every nook and cranny of a recordeven in unlikely placesto seek out language that might be stretched to conceivably serve as a "notice of appeal."
Id. at 841.
In this case, the only document filed by Roberts is a Statement of Inability to Afford Counsel. The word appeal is never mentioned in the document. Although we acknowledge the decisions subsequent to Rivera have adopted a more liberal policy, we hold that Roberts's statement is not a sufficient notice of appeal. Even under the more liberal policy, the document must in some manner allude to the desire to appeal or we would be saddled "with the added responsibility of exploring every nook and cranny of a recordeven in unlikely placesto seek out language that might be stretched to conceivably serve as a `notice of appeal.'" Baez, 235 S.W.3d at 841. Because appellant's notice of appeal was untimely filed, we dismiss this appeal for lack of jurisdiction. The appellant may pursue an out-of-time appeal by filing an application for writ of habeas corpus. See TEX.CODE CRIM. PROC. art. 11.07; Ater v. *666 Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex.Crim.App.1991); Rivera, 940 S.W.2d at 149. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590091/ | 270 S.W.3d 891 (2008)
Jeremy WALDRIP, Appellant,
v.
GRACO CORPORATION; FirstComp Insurance Company, Appellees.
No. CA 07-345.
Court of Appeals of Arkansas.
January 9, 2008.
*892 Cullen & Co. PLLC, by: Tim Cullen, Little Rock, AR, for appellant.
Frye Law Firm, P.A., by: Cynthia E. Rogers, North Little Rock, AR, for appellees.
JOSEPHINE LINKER HART, Judge.
Appellant, the employee-claimant, appeals from the decision of the Arkansas Workers' Compensation Commission finding that he failed to meet his burden of proving by a preponderance of the evidence that marijuana did not substantially occasion his injury. He contends that the Commission's decision was not supported by substantial evidence. We affirm the Commission's decision.
A compensable injury does not include an "[i]njury where the accident was substantially occasioned by" the use of illegal drugs. Ark.Code Ann. § 11-9-102(4)(B)(iv)(a) (Supp.2007). Further, the "presence" of illegal drugs "shall create a rebuttable presumption that the injury or accident was substantially occasioned by" the use of illegal drugs. Ark.Code Ann. § 11-9-102(4)(B)(iv)(b). And finally, an "employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the ... illegal drugs ... did not substantially occasion the injury or accident." Ark.Code Ann. § 11-9-102(4)(B)(iv)(d).
On appeal, we view the evidence in a light most favorable to the Commission's decision and affirm if the decision is supported by substantial evidence. Woodall v. Hunnicutt Constr., 340 Ark. 377, 12 S.W.3d 630 (2000). When, as here, the Commission denies coverage because the claimant failed to meet his burden of proof, the substantial-evidence standard of review requires that we affirm the Commission's decision if its opinion displays a substantial basis for the denial of relief. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. It is the function of the Commission to determine the credibility of the witnesses and the weight to be given to their testimony. Id. Whether the rebuttable presumption is overcome by the evidence is a question of fact for the Commission to determine. Id.
According to the decision of the administrative law judge (ALJ), whose opinion was adopted by the Commission, an employee-employer-carrier relationship existed on January 25, 2005, when appellant suffered an injury resulting in the amputation of the fingers of his left hand as well as a portion of that hand. The injury occurred during the operation of a press used in the manufacture of gun magazines. During the operation of the press, one person feeds metal into the press, a second operates the press by pressing two buttons simultaneously, and a third catches the product after it is stamped out by the *893 press. Though appellant normally worked in another department, around 11:00 a.m. that day, he was asked to help operate the press by catching the finished product as it was stamped out by the press. Craig Westbrook demonstrated the task to appellant and then observed appellant as he also performed the task. According to appellant, Westbrook instructed him never to put his hand in the press.
Appellant worked at the press for approximately one hour, and after a lunch break, continued to perform his job. But during operation of the press after lunch, material placed in the press became snagged. After the problem was corrected, the press was restarted, and appellant, whose hand was in the press, was injured. Approximately twenty-five hours after the injury, a urine sample was taken from appellant, which showed the presence of marijuana metabolites in an amount greater than 500 ng/mL.
Appellant's expert witness testified that while the urine test does indicate the presence of marijuana metabolites, it does not indicate when appellant used the marijuana, nor whether appellant was impaired at the time of the accident. Appellees' expert witness, however, testified that a report of more than 100 ng/mL of marijuana metabolites in the urine demonstrated an 83% likelihood that the blood level of the THC active compound was above 1 ng/mL, and that this would demonstrate an impaired condition. Further, he testified that given that the level was greater than 500 ng/mL, there would be more than a 95% chance that claimant was impaired at the time of his injury, which would affect judgment, reaction time, perception, cognitive function, and motor control.
In its decision, the Commission adopted the ALJ's decision, which accorded great weight to the testimony of appellees' expert witness. Furthermore, the Commission considered appellant's testimony that he had not smoked marijuana for six days and found that it was not credible, noting that appellant admitted to smoking two to four marijuana cigarettes a day and that he had been smoking marijuana for the five years prior to the accident. Also, the Commission noted that appellant's own expert witness indicated that appellant probably had smoked marijuana within the three or four days prior to the accident, that someone with 500 ng/mL of marijuana metabolites should not work around a press, and that appellant's act of putting his hand in the press despite instructions to the contrary could be consistent with short-term memory loss caused by marijuana. Further, the Commission discounted the testimony of the three witnesses who were present on the day of the injury and who indicated that appellant had not been acting impaired that day.
Appellant challenges the Commission's order. He asserts that the presence of metabolites does not create a rebuttable presumption that the injury or accident was substantially occasioned by the use of illegal drugs, and he relies on his own expert witness's testimony that one could not determine, based on a urine test indicating the presence of metabolites, whether appellant was impaired. He attacks the testimony of appellees' expert witness, contending that it was speculative and not stated with any degree of certainty. Further, he contends that the accident occurred because of his lack of experience and knowledge about the press, and that the direct cause of his injury was the other employee's act of pressing the two buttons to activate the press, when it should have been apparent to him that appellant's hand was not clear of the machine. He also observes that none of the witnesses testified that appellant seemed impaired.
*894 This court has previously concluded that testing positive for marijuana metabolites is sufficient to establish a rebuttable presumption that the employee's injury was substantially occasioned by the use of marijuana. Wood v. West Tree Service, 70 Ark.App. 29, 14 S.W.3d 883 (2000); see also Flowers v. Norman Oaks Constr. Co., 341 Ark. 474, 17 S.W.3d 472 (2000) (noting that both the Arkansas Supreme Court and this court have held that the presence of drugs or alcohol established only by metabolites or a slight amount of drugs or alcohol was sufficient to raise the rebuttable presumption and shift the burden of proof to the claimant to rebut the presumption). Moreover, in this case, appellees' expert witness testified that the levels of metabolites in appellant's urine demonstrated that appellant had the THC active compound in his blood. Accordingly, we are compelled to conclude that the rebuttable presumption was created.
As for his assertion that we should not credit the testimony of appellees' expert witness, we observe that the Commission was faced with competing expert testimony, and as noted above, it is the Commission's function to weigh the testimony. The Commission gave greater weight to the appellees' expert witness, who opined that there was a 95% chance that appellant was impaired at the time of the accident, and we cannot say that the testimony was, as appellant contends, not substantial.
Finally, appellant asserts that there were other factors that could have independently caused the injury. As noted above, the employee must prove by a preponderance of the evidence that the illegal drugs did not substantially occasion the injury or accident. Ark.Code Ann. § 11-9-102(4)(B)(iv)(d). The phrase "substantially occasioned" by the use of illegal drugs requires that there be a direct causal link between the use of the drugs and the injury in order for the injury to be noncompensable. ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998). Here, the Commission credited the testimony that appellant was impaired, that he placed his hand in the press despite instruction to the contrary, and that this was consistent with appellant having impaired judgment from intoxication from marijuana. Thus, we conclude that the Commission's opinion displays a substantial basis for the denial of relief, as it could conclude that appellant failed to prove that his use of illegal drugs did not substantially occasion his injury.
Affirmed.
PITTMAN, C.J., and GLADWIN, ROBBINS, and BIRD, JJ., agree.
GRIFFEN, J., dissents.
WENDELL GRIFFEN, J., dissenting.
The defining issue in this appeal is whether the Workers' Compensation Commission correctly applied the statutory presumption contained in Ark.Code Ann. § 11-9-102(4)(B)(iv) (Repl.2002) when it denied benefits to an injured worker after a urine test revealed the presence of marijuana metabolites one day following his workplace injury. The Commission concluded, based on the presence of marijuana metabolites in the worker's urine, that the employer proved the "presence ... of illegal drugs" so as to justify the rebuttable presumption that the appellant's accident was substantially occasioned by the use of illegal drugs. Because the Commission reasoned that appellant failed to overcome the presumption, it ruled that his injury was not compensable. I would reverse and hold that the presence of a metabolite, which is not an illegal drug, does not justify a presumption that the accident was substantially occasioned by an illegal drug.
*895 Arkansas Code Annotated section 11-9-102(4)(B)(iv)(a) excludes from the definition of "compensable injury" any injury "where the accident was substantially occasioned by the use of ... illegal drugs." The presence of an illegal drug in the body creates a rebuttable presumption that the injury or accident was substantially occasioned by that illegal drug. Ark.Code Ann. § 11-9-102(4)(B)(iv)(b). The burden then switches to the claimant to prove by a preponderance of the evidence that the illegal drug did not substantially occasion the accident or injury. See Ark.Code Ann. § 11-9-102(4)(B)(iv)(d).
It is well-settled that we are to strictly construe the provisions of the workers' compensation code. See Ark.Code Ann. §§ 11-9-704(c)(3) (Repl.2002); XX-X-XXXX (Repl.2002); Wallace v. West Fraser South, Inc., 365 Ark. 68, 225 S.W.3d 361 (2006). The doctrine of strict construction requires us to use the plain meaning of statutory language. Wallace, supra. If a term or phrase is not defined by the code, it falls upon the appellate court to define the terms or phrases in a way that neither broadens nor narrows the scope of the workers' compensation code. Id.
In Brown v. Alabama Electric Co., 60 Ark.App. 138, 959 S.W.2d 753, review denied, 334 Ark. 35, 970 S.W.2d 807 (1998), and Graham v. Turnage Employment Group, 60 Ark.App. 150, 960 S.W.2d 453, review denied, 334 Ark. 32, 970 S.W.2d 808 (1998), I dissented from our court's decisions which held that the presence of marijuana metabolites was sufficient proof to trigger the statutory presumption that workplace accidents were substantially occasioned by the use of marijuana. The supreme court denied review in those cases. As I contended almost ten years ago, I reaffirm today that our decisions in this area flagrantly misapply the strict construction standard.
It is beyond argument that a metabolite is not the same thing as a drug. Compare drug, n.[1], Oxford English Dictionary Online, http://dictionary.oed.com (accessed Nov. 26, 2007) (hereinafter "OED Online") ("An original, simple, medicinal substance, organic or inorganic, whether used by itself in its natural condition or prepared by art, or as an ingredient in a medicine or medicament" and "Now often applied without qualification to narcotics, opiates, hallucinogens, etc.")[1]with metabolite, n., OED Online ("A substance that is a substrate or product of a metabolic reaction, or that is necessary to a metabolic reaction"). Therefore, to find that the presence of a metabolite is the same thing as the presence of a drug requires this court to impermissibly broaden the plain and ordinary definition of "drug," which we have been forbidden to do by the Arkansas General Assembly. See Ark.Code Ann. § 11-9-1001. In this instance, our decisions have not only impermissibly broadened that plain and ordinary meaning but turn on construing the word "drug" to mean something that it does not mean. However, at no point has the majority opinion, or any other majority opinion by the Commission or appellate courts *896 in Arkansas, ever offered a different definition of the term "drug." The same holds true concerning the technical word "illegal."
Further, the presence of a metabolite in a person's system is merely proof that a drug was in a person's system at some point in the past. Equating proof of a metabolite in the system to the presence (i.e., current existence) of a drug in the system also requires us to stretch the meaning of the statute. Compare proof, n., OED Online ("Something that proves a statement; evidence or argument establishing a fact or the truth of anything, or belief in the certainty of something; an instance of this"); with presence, n., OED Online ("The fact or condition of being present"). The construction taken by the Commission and affirmed by the majority operates to presume that a workplace injury to any employee with metabolites in his urine has been "substantially occasioned" by the presence of "illegal drugs" although metabolites are neither drugs nor illegal. This is contrary to the intent of the General Assembly, which intended to disqualify those persons who are injured on the job while under the influence of illegal drugs. We can derive proof of this intent by the General Assembly's use of the phrase substantially occasioned. See occasion, v. OED Online, ("To be the occasion or cause of; to give rise to, cause, bring about, esp. incidentally"). To hold that the General Assembly intended to disqualify anyone with a history of drug use would, again, require that we impermissibly broaden the scope of the Act.
Instead, the statute provides that the presumption is triggered only by proof showing the presence of illegal drugs or other illicit substances in the employee's body. Neither proof of past illegal drug use nor the presence of a metabolite is sufficient to invoke that presumption, as (1) it does not fit the plain meaning of the language used by the legislature and (2) that construction operates to potentially deny workers' compensation benefits to injured workers based on past use of illegal drugs alone and without requiring any other proof that the past drug use made specific workplace injuries more likely. In other words, the statute cannot correctly be construed to support a finding that a workplace injury was "substantially occasioned by the use of ... illegal drugs" absent evidence showing the "presence" of "illegal drugs."
The statute now under consideration is the successor to what was originally Ark. Stat. Ann. § 81-1305. That statute provided, in material part, as follows:
Every employer should secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of employment, without regard to fault as a cause of such injury; provided, that there shall be no liability for compensation under this Act [§§ 81-1301-81-1349] where the injury or death from injury was substantially occasioned by intoxication of the injured employee[.]
(Emphasis added.)
When the General Assembly enacted the present statute as part of Act 796 of 1993, it clearly shifted the focus from proof that a workplace injury or death "was substantially occasioned by intoxication of the injured employee." Rather than requiring proof of "intoxication," the statute now creates a rebuttable presumption that a workplace injury or death has been "substantially occasioned by the use of ... illegal drugs." However, the presumption is triggered, according to the plain wording of the statute, not by proof of past use of illicit substances, but only by proof of the presence of illegal drugs. Otherwise, *897 the General Assembly would have made the presumption dependent simply upon proof of past use of prohibited substances instead of proof that prohibited substances are present for purposes of determining whether those substances substantially occasioned disputed workplace injuries and fatalities.
Contrary to the majority's assertion, our supreme court has never held that the presence of metabolites satisfied the statutory requirement that "illegal drugs" be present so as to invoke the presumption under Ark.Code Ann. § 11-9-102(4)(B)(iv). In Ester v. National Home Centers, Inc., 335 Ark. 356, 981 S.W.2d 91 (1998), the claimant's drug test returned positive for opiates and cocaine metabolites. In holding that the Commission properly applied the presumption, the supreme court observed that the appellant admitted using cocaine three days before the drug test; the metabolites in his system merely corroborated his testimony.
In Woodall v. Hunnicutt Construction, 340 Ark. 377, 12 S.W.3d 630 (2000), the claimant's urine test was positive for cocaine metabolites. The appellant in that case admitted smoking crack cocaine the night before the incident and admitted that he tested positive for a drug screen on the date of the accident. The Commission found that appellant's accident was substantially occasioned by the use of cocaine, and the supreme court affirmed the Commission. In so holding, the supreme court remarked that the appellant's confessions invoked the presumption that the accident was substantially occasioned by cocaine use and did so without holding that the presence of metabolites invoked the presumption.
In Flowers v. Norman Oaks Construction Co., 341 Ark. 474, 17 S.W.3d 472 (2000), our supreme court affirmed the denial of benefits after emergency-room personnel noted that the claimant smelled of alcohol after the accident and the claimant admitted to drinking beer the evening before the accident. It held that the Commission's finding of alcohol was supported by substantial evidence, stating, "[B]oth this court and the court of appeals have held that the presence of drugs or alcohol established only by metabolites or a slight amount of the drugs or alcohol was sufficient to raise the rebuttable presumption and shift the burden of proof to the claimant to rebut the presumption." Id. at 480, 17 S.W.3d at 476. However, that statement was merely dictum. The presumption was invoked in that case because of the observations of third parties, not the presence of metabolites.
When it enacted Act 796 of 1993, the General Assembly declared that "many of the changes made by this act were necessary because administrative law judges, the Workers' Compensation Commission, and the Arkansas courts have continually broadened the scope and eroded the purpose of the workers' compensation statutes of this state." Ark.Code Ann. § 11-9-1001. The courts and the Commission were further instructed, "In the future, if such things as ... the extent to which any physical condition, injury, or disease should be excluded from or added to coverage by the law, or the scope of the workers' compensation statutes need to be liberalized, broadened, or narrowed, those things shall be addressed by the General Assembly and should not be done by administrative law judges, the Workers' Compensation Commission, or the courts." Id. However, the decisions involving application of this statute constitute judicial mischief that has operated for almost a decade to wrongly disqualify people who have been injured in the workplace. The Commission (including its administrative law judges) and the judges of this court *898 and the supreme court know quite well that metabolites are not illegal and that metabolites are not drugs. Nevertheless, for almost a decade we have disqualified injured workers from receiving workers' compensation benefits by claiming metabolites to be what they plainly are not and what they have never been, i.e., illegal drugs. One can only hope that our supreme court will finally correct this blatant exercise at judicial legislating rather than perpetuate it. Barring such corrective action by our supreme court, the General Assembly should do so.
Those who decry judicial legislating should take note of our decisions regarding this statute, particularly as those decisions have been made in the face of the strict construction standard and the explicit declaration by the General Assembly regarding its intent when the statute was enacted. If our decisions regarding this statute are legitimate exercises in "strict construction," one wonders why we behave differently in performing "strict construction" regarding other provisions of Act 796 of 1993. How is it, for example, that "strict construction" operates loosely to permit the Commission and appellate courts to construe things that are neither illegal nor drugs as "illegal drugs," but requires a much more exacting analysis when the Commission and appellate courts assess what is an "objective finding" for purposes of establishing a compensable injury? Perhaps even more to the point at hand, why does testimony about the presence of something that is neither illegal nor a drug qualify to trigger the statutory presumption, yet testimony from co-workers about the injured worker's mannerisms and comportment is somehow inadequate to rebut that presumption?
A discernible, and troubling, disparity is evident in the way the Commission and appellate courts have chosen to analyze the proof on this subject. On this subject of workers' compensation law, our "strict construction" disregards the plain and ordinary meaning of the words "illegal" and "drugs." On this subject, we seem unmindful of, if not dismissive toward, reputable sources of authority on those subjects, including the established meaning both in ordinary usage and the Arkansas Codeof the operative term "drug." Instead of analyzing the issue according to traditional methods of statutory construction by which we respect the existing meaning of terms of art such as "illegal drugs," in this area of workers' compensation law the Commission and appellate courts have resorted to a decidedly uncritical approach to resolving what is, at bottom, a rather elementary issue of logic and statutory construction: whether proof of the presence of something that is not an illegal drug will justify presuming that a disputed workplace injury or death was substantially occasioned by an illegal drug. If metabolites qualify to trigger the rebuttable presumption despite the fact that they are neither illegal nor drugs, what prevents the Commission and courts from holding that the presumption is triggered by proof of non-illegal drug use by an injured worker, even without showing the "presence" of illegal drugs in connection with a specific claim? After all, the majority opinion and our previous decisions allow the statutory presumption to be triggered by proving the presence of non-illegal and non-drug metabolites.
Until the supreme court and/or General Assembly correct our colossal error, the responsibility for illuminating its glaring fallacies and for, possibly, reversing the troubling effect of those decisions, will rest with the attorneys who represent injured workers and with the Commission and its administrative law judges. The Commission (with its administrative law judges to whom evidence in workers' compensation *899 claims is initially presented) is the initial gatekeeper of evidence. As such, testimony such as that from Dr. Light and Mr. Thompson should be rigorously challenged during voir dire to demonstrate that it is not relevant to prove whether an illegal drug is present in a person's body. After all, relevant evidence is that evidence that is more likely to render a proposition true. If it is undeniably true that a marijuana metabolite is not a drug and is not illegal, then any testimony about the presence of marijuana metabolites is worthless to prove the proposition on which the statutory presumption rests (that a disputed workplace injury or death was "substantially occasioned by ... illegal drugs."). Otherwise, in a case in which a statutory presumption depended upon proof that a result was substantially occasioned by gasoline, for example, persons such as Dr. Light and Mr. Thompson might be allowed to present "expert" opinion testimony about the presence of carbon monoxide to establish a rebuttable presumption regarding the presence of gasoline. If such plainly fallacious reasoning is attacked and fully litigated at the Commission level based on the tests in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Farm Bureau Mutual Ins. Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000), it should certainly fail.
In the instant case, the Commission relied on Dr. Light's testimony to find that 500 nanograms of marijuana metabolites in appellant's urine demonstrated that his injury was substantially occasioned by the use of illegal drugs despite the fact that metabolites are neither drugs nor illegal. Because I know the difference between metabolites and illegal drugs, it is clear to me that the proof shows merely the presence of marijuana metabolites, substances that are neither illegal nor drugs. As such, the employer failed to prove "the presence of ... illegal drugs" so as to trigger the rebuttable presumption that the workplace injury in this case was "substantially occasioned by ... illegal drugs." Thus, I would either reverse the Commission and remand for a determination of benefits or, alternatively, reverse and remand with instructions that the Commission reconsider the evidence in light of our opinion.
I respectfully dissent.
NOTES
[1] See also Ark.Code Ann. § 5-64-101(13)(A) (Supp.2007) (part of the Uniform Controlled Substances Act):
(13)(A) "Drug" means a substance:
(i) Recognized as a drug in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, official National Formulary, or any supplement to any of them;
(ii) Intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in humans or animals;
(iii) Other than food intended to affect the structure or any function of the body of humans or animals; and
(iv) Intended for use as a component of any article specified in subdivisions (13)(A)(i), (ii), or (iii) of this section. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590166/ | 270 S.W.3d 365 (2007)
The STEAK HOUSE and Farmers Insurance Group, Appellants,
v.
Misty L. WEIGEL, Appellee.
No. CA 07-34.
Court of Appeals of Arkansas.
December 19, 2007.
*366 Huckabay, Munson, Rowlett & Moore, P.A., by: Sarah Presson and John O. Payne, Little Rock, for appellants.
Frederick Strawn Spencer, Mountain Home, for appellee.
D.P. MARSHALL JR., Judge.
While working at The Steak House, Misty Weigel allegedly sustained a left-knee injury. The Steak House contested her claim, arguing that it had no notice of the injury and that no objective proof showed a compensable knee injury. The administrative law judge rejected The Steak House's arguments and awarded Weigel benefits. The Commission affirmed and adopted the ALJ's findings. On appeal, The Steak House argues that the Commission committed errors in admitting evidence and determining witnesses' credibility at the hearing. The Steak House also argues that substantial evidence does not support the Commission's finding of a compensable knee injury. The Steak House's first two arguments lack merit. The Commission does need to make an additional finding, however, about whether Weigel's "guarding" constituted objective medical evidence. We therefore reverse and remand for additional findings on compensability.
I.
About a week after she began working at The Steak House, Weigel alleged that she felt her knee "crack" when she turned to reach for a spray bottle to wipe off tables at the restaurant. She claimed that she felt an instant throbbing sensation. Weigel also said that she reported the incident to the restaurant's owner, Jay Winham, the same day, and discussed the injury with him several more times during the next two weeks. Valerie Ross, Weigel's friend and co-worker at The Steak House, testified that she observed the injury and saw Weigel report the injury to Winham.
Weigel went to the emergency room at Baxter Regional Medical Center about ten days after her injury. She received crutches and a knee immobilizer, and was told to follow up with her family doctor. Weigel was eventually referred to Dr. Anthony McBride, an orthopedic surgeon. Dr. McBride's notes indicate that: "McMurray's testing is impossible secondary to guarding but it [is] apparently more intense on the medial side than the lateral side. Lachman's is negative but once again, she is guarding." Dr. McBride recommended an MRI of Weigel's left knee. This test, however, was not done at that time.
Jay Winham, The Steak House's owner, testified that Weigel never told him that she injured herself at work until she filed her claim for workers' compensation benefits in June 2005. The Steak House denied Weigel's claim based on lack of notice and no objective proof of a knee injury. The ALJ conducted a two-part hearing in this matter. After the initial hearing, the ALJ left the record open to allow testimony from Mr. Winham, who was unable to attend the first hearing. Between the two hearing dates, Weigel underwent an MRI of her knee. Weigel gave notice before the second hearing that she wanted to introduce this MRI report. The ALJ admitted the belated report, over The Steak House's objection, because Weigel "had no financial means to obtain [the MRI] herself until she was approved for SSI and Medicaid after the first hearing held on February 1, 2006."
*367 In his opinion, the ALJ found that Weigel suffered a compensable left-knee injury and that she promptly notified Winham of the injury. The Commission adopted the ALJ's opinion in its entirety.
II.
The Steak House argues that the Commission based its compensability finding on erroneous evidentiary rulings. We disagree.
The decision to admit the belated MRI report was entirely within the ALJ's discretion, and he did not abuse that discretion. Ark.Code Ann. § 11-9-705(c)(3) (Supp.2007). Weigel had a good reason for waiting until after the first hearing to undergo an MRIshe could not afford it until then. The Commission should be liberal, rather than stringent, about the admission of evidence. Bryant v. Staffmark, Inc., 76 Ark.App. 64, 69, 61 S.W.3d 856, 860 (2001). And we see no abuse of discretion in the admission of this report before the second hearing. Brown v. Alabama Elec. Co., 60 Ark.App. 138, 144, 959 S.W.2d 753, 756 (1998).
The Steak House also argues that the Commission erred by allowing Weigel to cross-examine Winham about other instances where Winham denied receiving notice about an alleged work injury. Evidence of similar occurrences is generally admissible only when the proposing party demonstrates that the other events arose out of the same or substantially similar circumstances. Ark. R. Evid. 401; Fraser v. Harp's Food Stores, Inc., 290 Ark. 186, 188, 718 S.W.2d 92, 93 (1986). The Commission, however, is not bound by the Rules of Evidence. Instead, the Commission must adhere to basic rules of fair play, such as recognizing the right of cross-examination and the necessity of having all evidence in the record. Brewer v. Tyson Foods, Inc., 10 Ark.App. 88, 90, 661 S.W.2d 423, 424 (1983).
The ALJ analyzed this issue correctly. He ruled that:
Mr. Spencer's questions appeared to have been designed to uncover possible instances of Mr. Winham asserting an alleged lack of notice to Mr. Winham under substantially similar circumstances to the circumstances presented in this case (i.e., employees of Mr. Winham allegedly notifying Mr. Winham of work-related injuries and Mr. Winham asserting that he never received notice from the injured employees during the time frame alleged by the employees).
We see no abuse of the Commission's broad discretion in evidentiary matters. Brown, supra.
III.
The Steak House next argues that the ALJ erred in determining the credibility of witnesses at the hearing. The Steak House claims that its witness, Mr. Winham, was more credible than Weigel and Ross about all matters, including the conflicting testimony about notice. Based on his assessment of the parties' credibility, the ALJ found that Weigel gave Winham prompt notice about her injury. The Commission adopted that finding. Because the determination of the credibility and weight to be given to a witness's testimony is solely for the Commission, The Steak House's argument on this point is without merit. Williams v. Brown's Sheet Metal/CNA Ins. Co., 81 Ark.App. 459, 462, 105 S.W.3d 382, 384 (2003).
IV.
The Steak House next argues that substantial evidence does not support the Commission's finding that Weigel sustained a compensable injury. To get benefits, Weigel had to prove the following: (1) *368 that she suffered an injury arising out of and in the course of her employment with The Steak House; (2) that the injury was caused by a specific incident identifiable by time and place of occurrence; (3) that the injury caused internal or external physical harm to her body, which required medical services or resulted in disability or death; and (4) that the injury was established by medical evidence supported by objective findings. Ark.Code Ann. § 11-9-102(4)(A)(i) & (4)(D) (Supp.2007).
The Steak House claims that Weigel failed to meet the statute's objective-findings requirement. The Commission based its compensability decision on the "guarding" noted by Dr. McBride in a March 2005 medical record. The Commission concluded that guarding "is an objective finding within Act 796 of 1993." In reaching this conclusion, the Commission relied on a medical-dictionary definition equating guarding with muscle spasms, and on several prior Commission opinions, all of which concluded that guarding is an objective finding. This court, however, has stated in dicta that muscle guarding is "subjective criteria and not objective findings." Polk County v. Jones, 74 Ark.App. 159, 161, 47 S.W.3d 904, 905 (2001). Because the Commission decided the compensability of Weigel's injury on "guarding" alone, whether guarding is a subjective or an objective finding is the dispositive issue.
We hold that muscle guarding is sometimes involuntary and sometimes voluntary. Many of the medical authorities we have examined indicate that guarding is often an involuntary response,[1] and thus would be an objective finding that would satisfy the statute. But some medical authorities indicate that guarding can be a voluntary response to pain,[2] and thus would be a subjective finding. Some other jurisdictions have acknowledged medical opinions stating that guarding can be a voluntary act. E.g., DeLuca v. Brown, 6 Vet.App. 321, 323 (1993) ("The [doctor's] impression was: `... that the restricted mobility found was in part due to voluntary guarding.'").
We hold that the Commission's conclusion in this casethat "guarding is an objective finding"sweeps too broadly. Our contrary dicta in Polk County that guarding is subjective does too, and we disavow it. Guarding can be beyond the patient's control or within the patient's control. This issue is therefore a matter of fact on which the Commission should make a specific finding case by case based on the medical evidence. The Commission's opinion here lacks a finding about *369 whether Dr. McBride concluded that Weigel's guarding was voluntary or involuntary. We do not know whether the guarding notation was a subjective or an objective finding. This fact question is for the Commission, not our court.
We therefore reverse and remand for the Commission to make additional findings of fact about Weigel's guarding. We also note that, though the Commission did not rely on the belated MRI report in determining compensability, it should consider that report on remand because we have held that the ALJ properly admitted this evidence.
Reversed and remanded.
PITTMAN, C.J., agrees.
GRIFFEN, J., concurs.
NOTES
[1] STEDMAN'S MEDICAL DICTIONARY 750 (26th ed.1995) (defining "guarding" as a spasm of muscles to minimize motion or agitation of sites affected by injury or disease); WILLIAM E. PRENTICE AND MICHAEL L. VOIGHT, TECHNIQUES IN MUSCULOSKELETAL REHABILITATION 311 (Ed.2001) (describing muscle guarding as a protective response in muscle that occurs due to pain or fear of movement); FLORENCE PETERSON KENDALL ET AL., MUSCLES: TESTING AND FUNCTION WITH POSTURE AND PAIN 52 (5th ed. 2005) (Nature's way of providing protection for a muscle injury is by "protective muscle spasm" or "muscle guarding" in which the muscles become rigid to prevent painful movements); MELLONI'S ILLUSTRATED MEDICAL DICTIONARY 257 (4th ed.2002) (defining "guarding" as a spasm of muscles at the site of injury or disease occurring as the body's protection against further injury).
[2] BERNARD M. ABRAMS, M.D., PHYSICAL EXAMINATION OF THE PAIN PATIENT, 11 JOURNAL OF BACK AND MUSCULOSKELETAL REHABILITATION 183-99 (Dec. 1998) ("A finding of spasm of the paraspinal muscles can occasionally be found in volitional muscle guarding rather than involuntary reflex guarding."); MICHAEL E. GEISSER, PHD, SURFACE ELECTROMYOGRAPHY AND LOW BACK PAIN, 35 BIOFEEDBACK 15 (Spring 2007) (discussing other authors' suggestions that guarding is a volitional response). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590105/ | 270 S.W.3d 423 (2008)
Jennifer ELDRIDGE, Appellant,
v.
COLUMBIA MUTUAL INSURANCE COMPANY, Respondent.
No. WD 69444.
Missouri Court of Appeals, Western District.
November 12, 2008.
*424 Harry R. Gaw, Jr., Tipton, MO, for appellant.
Susan F. Robertson, Wade H. Ford, Jr., Co-Counsel, Columbia, MO, for respondent.
Before DIV II: SMART, P.J., HARDWICK and WELSH, JJ.
LISA WHITE HARDWICK, Judge.
Jennifer Eldridge appeals from a summary judgment ruling that denied coverage under an automobile insurance policy issued by Columbia Mutual Insurance Company. Eldridge contends the circuit court erred in granting summary judgment because the insurance policy was ambiguous in failing to define the term "driver." As explained herein, we find no ambiguity and affirm the summary judgment.
When considering appeals from summary judgments, we review the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993). We take as true the facts set forth by affidavit or otherwise in support of a party's motion unless contradicted by the other party's response to the summary judgment motion. Id. We give the non-prevailing party the benefit of all *425 reasonable inferences from the record. Id.
The underlying facts in this case are not in dispute. On February 2, 2004, Jennifer Eldridge's son, Gage Savage, was a passenger in a 1990 Ford Tempo owned by Gage Savage's father, Joshua Savage, and driven by Victoria Savage, Gage Savage's step-mother. The Ford Tempo was traveling north on Missouri State Route B, south of Boonville, when it collided with a vehicle driven by Robert Bail. As a result of the collision, Gage Savage died.
The Ford Tempo was covered under an insurance policy issued to Joshua Savage by American Standard Insurance. Eldridge sought the policy limits from American Standard, but the coverage afforded by that policy is not at issue in this case.
Eldridge also sought the policy limits from Columbia Mutual Insurance Company. The Columbia Mutual policy insured a 2000 Chevrolet Malibu that was not involved in the accident. The Columbia Mutual policy showed John Earnest as the named insured and his daughter, Victoria Earnest (whose married name is now Savage) as a driver of the Chevrolet Malibu. Columbia Mutual refused Eldridge's demand for payment on grounds that Victoria Savage was not an insured under the policy because she was not driving the Chevrolet Malibu at the time of the accident.
Eldridge filed a wrongful death action against Victoria Savage and acquired a judgment against Victoria Savage in the amount of $450,000. Eldridge and Victoria Savage thereupon entered into an agreement with a restricted partial release, reservation of claim, and covenant not to execute. Victoria Savage agreed to entry of a consent judgment in the amount of $450,000 in favor of Eldridge, and Eldridge agreed that she would not execute against the real or personal property of Victoria Savage and that she would seek to satisfy the judgment from the American Standard policy, the Columbia Mutual policy, and any claims or causes of action that she may have against other persons or entities. Joshua Savage also agreed that Eldridge was entitled to 100% of the proceeds from the American Standard and Columbia Mutual policies. Based on those agreements, the circuit court ordered American Standard to pay its policy limits of $25,000 to Eldridge for the wrongful death of Gage Savage.
On February 14, 2006, Eldridge filed her petition for declaratory judgment against Columbia Mutual alleging that Victoria Savage was an insured under the policy insuring the 2000 Chevrolet Malibu and that Columbia Mutual had failed to defend its insured in the wrongful death action and had refused to settle for the policy limits. Eldridge and Columbia Mutual filed cross-motions for summary judgment seeking determination of whether or not coverage was afforded to Victoria Savage under the Columbia Mutual policy. The circuit court denied Eldridge's motion for summary judgment and granted Columbia Mutual's motion for summary judgment. The court found that Columbia Mutual's policy was not ambiguous, that Victoria Savage was not a named insured under the policy and, at the time of the accident, she was driving a vehicle that was not covered by the policy.
On appeal, Eldridge contends that the circuit court erred in denying her motion for summary judgment and in granting Columbia Mutual's motion for summary judgment. "Generally, an order denying a motion for summary judgment is not a final judgment and therefore is not reviewable on appeal." Fischer v. City of Washington, 55 S.W.3d 372, 381 (Mo.App.2001). If, however, *426 the merits of the denied motion for summary judgment "are intertwined with the propriety of an appealable order granting summary judgment to another party," the denial of a motion for summary judgment may be reviewed on appeal. Id. Such is the case here.
We review the circuit court's granting of a summary judgment de novo. ITT Commercial, 854 S.W.2d at 376. "The propriety of summary judgment is purely an issue of law." Id. Because the circuit court's judgment is based on the record submitted and the law, we need not defer to the circuit court's order granting summary judgment. Id. We will affirm the circuit court's grant of summary judgment if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Id. at 380; Rule 74.04(c)(6).
The interpretation of an insurance policy is also a question of law entitled to de novo review. Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007). We interpret the policy according to the plain and ordinary meaning of its language. Mo. Employers Mut. Ins. Co. v. Nichols, 149 S.W.3d 617, 625 (Mo. App.2004). We do not determine the plain meaning of the words and phrases in isolation; rather, we do so with reference to the context of the policy as a whole. Miller v. O'Brien, 168 S.W.3d 109, 114 (Mo. App.2005). Unless the policy language is ambiguous, appellate courts must enforce the contract as written, giving the words and phrases their ordinary meaning. Id.
"An ambiguity arises where there is a duplicity, indistinctness, or uncertainty in the meaning of the words used in an insurance contract." Am. Family Mut. Ins. Co. v. Peck, 169 S.W.3d 563, 567 (Mo.App.2005)(quoting Nichols, 149 S.W.3d at 625). If a term is defined in the policy, courts must "look to that definition and nowhere else." Heringer v. Am. Family Mut. Ins. Co., 140 S.W.3d 100, 103 (Mo.App.2004). However, the absence of a definition for a key term does not necessarily render the policy ambiguous. Peck, 169 S.W.3d at 567. Courts should be careful not to create ambiguities where none exist. Id.
The threshold issue before us is whether an ambiguity existed in the policy issued by Columbia Mutual. Eldridge contends the circuit court erred in granting summary judgment because the term "driver" was undefined in the policy, thereby creating an ambiguity that would lead a reasonable person to assume a "driver" is an insured under the policy.
On the declarations page of the Columbia Mutual policy, the "Named Insured" is identified as "John M. Earnest." In a separate section of the same page is the heading "Driver(s) Summary," under which John Earnest is listed as "Driver 001" and Victoria Earnest is listed as "Driver 002." Under the heading "Vehicle(s) Summary," the declarations page listed "Driver 002" as the driver of the 2000 Chevrolet Malibu.
Amended Part A of the Liability Coverage for the policy states: "We will pay damages for `bodily injury' or `property damage' for which any `insured' becomes legally responsible because of an auto accident." (Emphasis added). The Liability Coverage defines "insured" in relevant part as:
1. You for the ownership, maintenance or use of any auto or "trailer".
2. Any "family member":
a. Who does not own an auto, for the maintenance or use of any auto or "trailer".
b. Who owns an auto, but only for the use of "your covered auto"
*427 3. Any person using "your covered auto" ...
4. . . . .
5. For any auto or "trailer", other than "your covered auto", any other person or organization but only with respect to legal responsibility for acts or omissions of you or any "family member" for whom coverage is afforded under this Part.
The definition section further defines "you" or "your" as "[t]he `named insured' shown in the Declarations" and "[t]he spouse if a resident of the same household." The policy defines "family member" as "a person related to you by blood, marriage or adoption who is a resident of your household."
Victoria Savage was not a resident of John Earnest's household at the time of the accident. Additionally, she is not listed as a "Named Insured" on the Declarations page of the policy. She is listed in the policy only as a "Driver." More specifically, she is listed as a driver for the 2000 Chevrolet Malibu, which is a covered vehicle under the policy but was not involved in the subject accident. Based on the plain language of the insurance agreement, Victoria Savage was a covered driver with regard to the 2000 Chevrolet Malibu, but she was not an insured for any other purposes under the policy.
We disagree with Eldridge's argument that the term "driver" is unclear because it was not defined in the policy. The mere lack of definition does not create an ambiguity. Peck, 169 S.W.3d at 567. Nothing in the policy suggests that its use of the term has any meaning beyond the plain and ordinary meaning of "driver." Merriam Webster's Collegiate Dictionary, 353 (10th ed.2000) defines "driver" as "one that drives: as a: COACHMAN b: the operator of a motor vehicle[.]" These definitions are consistent with the everyday use of the word with respect to automobiles and do not create confusion or uncertainty. Further, the double listing of John Earnest in the policy, once as the "named insured" and again in another section of the policy set off with horizontal lines and headed by the bolded words "DRIVER(S) SUMMARY," prevents an understanding that "driver" could have the same meaning as "named insured" under the policy.
Although Missouri has not directly addressed this issue, other jurisdictions have recognized that the designation of "driver" on the declarations page of an insurance policy is not without effect. In Kitmirides v. Middlesex Mutual Assurance Co., 65 Conn.App. 729, 783 A.2d 1079, 1084 (2001), under similar circumstances to those before us, the court held that the policy's definition of an insured is unambiguous when one party is listed as a named insured on the declarations page and another is listed as a driver, a term undefined by the policy. The court concluded that the driver designation serves as dispositive evidence of permission to use a covered vehicle. Id. at 1083 n. 7.
Indiana and Kentucky have also rejected the notion that an ambiguity arises when an automobile insurance policy fails to define the term "driver." Millspaugh v. Ross, 645 N.E.2d 14 (Ind.Ct.App.1994); True v. Raines, 99 S.W.3d 439, 444 (Ky. 2003). The Indiana court found that while the designation of driver was significant for some purposes, including the amount of the premium due under the policy, it did not create a right to coverage under all provisions of the policy. Millspaugh, 645 N.E.2d at 16-17. Likewise, North Carolina has held that the term "named insured" unambiguously excludes persons listed only as drivers in policies similar to the one at issue here. Nationwide Mut. Ins. Co. v. Williams, 123 N.C.App. 103, 472 S.E.2d 220, 222 (1996). This view is in *428 keeping with Couch on Insurance, which explains that "one listed on the policy, but only in the status of a driver of a vehicle, is not a named insured despite the fact that such person's name was physically on the policy." 7A Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 110:1 (2005).
The circuit court properly granted summary judgment in favor of Columbia Mutual because the insurance policy at issue is not ambiguous. The policy plainly states that Victoria Savage is entitled to insurance coverage as a driver of the 2000 Chevrolet Malibu. Because Victoria Savage was not driving the Chevrolet Malibu at the time of the accident and did not otherwise qualify as an insured under definitions in the policy, no insurance claim could be stated on her behalf against Columbia Mutual. The point on appeal is denied.
We affirm the circuit court's judgment.
ALL CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590110/ | 270 S.W.3d 37 (2008)
In re ESTATE OF Cornelius Theodore RIDLEY.
No. M2006-01109-SC-R11-CV
Supreme Court of Tennessee, at Nashville.
June 4, 2008 Session.
October 29, 2008.
*38 Melvin L. Raymond, St. Louis, Missouri, and Eva Lemeh, Nashville, Tennessee, for the appellee, William Keith Ridley.
Mary C. LaGrone, Nashville, Tennessee, for the appellant, Carolyn Fludd Ridley.
OPINION
JANICE M. HOLDER, C.J., delivered the opinion of the Court, in which WILLIAM M. BARKER, CORNELIA A. CLARK and GARY R. WADE, JJ., and FRANK F. DROWOTA, III, SP. J., joined.
The issues in this appeal are whether the probate court's order construing the decedent's will was a final judgment and, if so, whether the appellee's notice of appeal was timely. We hold that the order construing the will was a final judgment and that the appellee's notice of appeal was not timely. Consequently, we reverse the judgment of the Court of Appeals and dismiss the appeal.
Summary of Facts and Proceedings Below
The appellant, Carolyn Ridley, is the surviving spouse of Cornelius Theodore Ridley, who died on June 13, 2003. The marriage between Cornelius and Carolyn Ridley was Cornelius Ridley's second marriage. In addition to his wife, Carolyn Ridley, Cornelius Ridley was survived by two children from his first marriage, William Keith Ridley, the appellee, and Constance Ridley Smith.[1] Carolyn Ridley also has a child from a previous marriage, Karen Elizabeth (Bennett) Moore.
Cornelius Ridley executed a will on June 1, 1988. After his death, Carolyn Ridley submitted the will to probate and was appointed executrix of the estate. In March 2004, Carolyn Ridley filed a petition asking the probate court to construe her husband's will. The probate court entered an order construing the will on September 17, 2004. At issue in this case is whether that order was a final judgment thereby making William Keith Ridley's notice of appeal filed on May 24, 2006, untimely. The following facts are relevant to this determination.
The probate court held a hearing in September 2004 to address three matters related to the estate: (1) Carolyn Ridley's petition to construe the will; (2) a petition filed by Carolyn Ridley in her individual capacity to set aside a quitclaim deed she had signed; (3) and a claim filed by Carolyn Ridley in her individual capacity against the estate, seeking payment for *39 medical and funeral expenses. Carolyn Ridley orally withdrew her claim for medical and funeral expenses after the court's ruling from the bench concerning the construction of the will.
On September 17, 2004, the probate court entered an order construing the will to grant Carolyn Ridley a life estate in the Ridleys' home on Setters Road and to grant the remainder interest in the property to Cornelius and Carolyn Ridley's respective children. The order also set aside the quitclaim deed. Subsequent to this order, William Keith Ridley filed a "Motion to Alter or Amend" the judgment, arguing that the probate court erred in its construction of the will and in setting aside the quitclaim deed. On December 6, 2004, the probate court entered an order denying the "Motion to Alter or Amend."
Thereafter, Carolyn Ridley, as executrix of the estate, filed a final accounting. On December 5, 2005, William Keith Ridley filed an "Objection to Closing Estate" asking that "this estate not be closed pending an appeal of the Court's ruling construing the Will and setting aside the Deed transferring any interest in the real estate located on Setters Road."
William Keith Ridley filed a "Motion to Set Aside Order Setting Aside Quitclaim Deed and for New Hearing on the Merits" ("Motion to Set Aside") on January 13, 2006. Carolyn Ridley filed a response in opposition to this motion and requested that the probate court award her attorney's fees for responding. On May 15, 2006, the probate court entered an order denying William Keith Ridley's "Motion to Set Aside." The probate court ruled that "[t]he time for appeal from the order entered December 7[sic], 2004, has run and Movant Keith Ridley did not avail himself of his proper procedural remedies[.]" The probate court awarded $750 in attorney's fees to the estate for defending the motion as well as $850 in attorney's fees to Carolyn Ridley, individually.
On May 24, 2006, William Keith Ridley filed a notice of appeal. The notice stated that he was appealing the probate court's May 15, 2006, order denying his "Motion to Set Aside." In the Court of Appeals, Carolyn Ridley filed a motion to dismiss the appeal. The motion asserted that William Keith Ridley's notice of appeal was not timely because it was not filed within thirty days of the probate court's December 6, 2004, order denying his "Motion to Alter or Amend."
William Keith Ridley responded that the September 17, 2004, order was not final because it did not resolve all the claims between the parties and that the time for filing his notice of appeal did not begin to run until all claims were resolved and the estate was closed. The Court of Appeals denied Carolyn Ridley's motion to dismiss the appeal.
After her motion to dismiss was denied, Carolyn Ridley raised the timeliness of the notice of appeal in her brief filed in the Court of Appeals. The Court of Appeals rejected her argument again and proceeded to address the construction of the will. The Court of Appeals concluded that the will did not grant Carolyn Ridley a life estate in the Ridleys' home on Setters Road.
The Court of Appeals therefore reversed the probate court's construction of the will. Based on its holding, the Court of Appeals vacated the probate court's award of attorney's fees and remanded with instructions that the probate court calculate an appropriate attorney's fee "apportioned only to the motion to set aside the trial court's prior decision as to the quitclaim deed."
Carolyn Ridley appealed to this Court. She raises the issue of whether the Court of Appeals erred in finding that William *40 Keith Ridley's notice of appeal was timely. In the alternative, she asserts that the Court of Appeals erred in its resolution of the will-construction and attorney's-fees issues. We granted her application for permission to appeal to address the timeliness of the notice of appeal, and we reverse the judgment of the Court of Appeals. Given our disposition of this issue, the two alternative issues are pretermitted.
Analysis
The dispositive question before this Court is whether the probate court's September 17, 2004, order was a final judgment. If so, then William Keith Ridley was required to file his notice of appeal within thirty days following the probate court's December 6, 2004, order denying his "Motion to Alter or Amend."
We begin our analysis by considering Rule 3(a) of the Tennessee Rules of Appellate Procedure, which provides:
In civil actions every final judgment entered by a trial court from which an appeal lies to the Supreme Court or Court of Appeals is appealable as of right. Except as otherwise permitted in rule 9 and in Rule 54.02 Tennessee Rules of Civil Procedure, if multiple parties or multiple claims for relief are involved in an action, any order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before entry of a final judgment adjudicating all the claims, rights, and liabilities of all parties.
Under Rule 3(a), only a "final judgment" in a civil action is "appealable as of right." In Re Estate of Henderson, 121 S.W.3d 643, 645-46 (Tenn.2003). The Court of Appeals, however, stated in its order:
We agree with the appellee [Carolyn Ridley] that the September 17, 2006[sic] order was appealable as of right. However, we view the right to appeal such orders as permissive rather than mandatory, i.e., the right to an immediate appeal of an otherwise interlocutory order does not preclude a party from challenging the order in an appeal filed following the entry of a final judgment.
(emphasis added) (citations omitted.) By stating that the September 17, 2004, order was "appealable as of right[,]" the Court of Appeals necessarily concluded that the September 17, 2004, order was a final judgment. This conclusion is inconsistent with the court's subsequent description of the order as "an otherwise interlocutory order." By definition, an "interlocutory order" cannot be a "final judgment."
We first turn to the question of whether the probate court's September 17, 2004, order was a final judgment. As this Court has stated, "[a] final judgment is one that resolves all the issues in the case, 'leaving nothing else for the trial court to do.'" Estate of Henderson, 121 S.W.3d at 645 (quoting State ex rel. McAllister v. Goode, 968 S.W.2d 834, 840 (Tenn.Ct.App. 1997)); see also Saunders v. Metro. Gov't of Nashville & Davidson County, 214 Tenn. 703, 383 S.W.2d 28, 31 (1964). Therefore, the September 17, 2004, order was a final judgment if it adjudicated all the claims raised in the pleadings and the rights and liabilities of all the parties.[2]
*41 This determination requires us to compare the probate court's September 17, 2004, order to the claims raised by the parties in the following pleadings: (1) the "Petition to Set Aside Quitclaim Deed" filed by Carolyn Ridley in her individual capacity; (2) the "Answer to Petition to Set Aside Quitclaim Deed" filed by William Keith Ridley and Constance Ridley Smith; (3) the "Petition to Construe Last Will and Testament" filed by Carolyn Ridley in her capacity as executrix; (4) the "Answer to Petition to Construe Last Will and Testament" filed by William Keith Ridley and Constance Ridley Smith; (5) the "Answer of Carolyn Ridley, In Her Individual Capacity, to Petition to Construe Will"; (6) the "Answer of Karen Elizabeth (Bennett) Moore to Petition to Construe Will"; (7) Carolyn Ridley's claim for medical and funeral expenses; and (8) the "Exception to [Carolyn Ridley's] Claim" filed by William Keith Ridley and Constance Ridley Smith.
Having made this comparison, it is clear that the September 17, 2004, order adjudicated all the claims and the rights and liabilities of all the parties and was therefore a final judgment. As a result, William Keith Ridley was required to file his notice of appeal within thirty days of that judgment pursuant to Rule 4(a) of the Tennessee Rules of Appellate Procedure or, in the alternative, to file a motion to alter or amend pursuant to Rule 59.04 of the Tennessee Rules of Civil Procedure.[3] He chose to file a motion to alter or amend. Therefore, the December 6, 2004, order denying the motion to alter or amend commenced the thirty-day period in which the notice of appeal could be filed.
William Keith Ridley did not file his notice of appeal until May 24, 2006, roughly seventeen and a half months after the denial of his "Motion to Alter or Amend." His notice of appeal was therefore untimely. Accordingly, the Court of Appeals erred in denying Carolyn Ridley's motion to dismiss the appeal.
William Keith Ridley's "Motion to Set Aside," filed on January 13, 2006, and denied by the probate court in an order dated May 15, 2006, cannot be viewed as extending the time in which to file a notice of appeal. Rule 59.01 of the Tennessee Rules of Civil Procedure expressly provides:
[t]hese motions [listed in Rule 59.01 and including a motion to alter or amend the judgment] are the only motions contemplated in these rules for extending the time for taking steps in the regular appellate process. Motions to reconsider any of these motions are not authorized and will not operate to extend the time for appellate proceedings.
*42 (emphasis added.) In our view, William Keith Ridley's "Motion to Set Aside" was a "motion to reconsider" the probate court's earlier denial of his "Motion to Alter or Amend."
While our conclusions are based on a comparison of the probate court's order and the pleadings contained in the record, these conclusions are buttressed by considering the broader context of the issue. We note that petitions for construction or interpretation of wills may be filed either in probate court or in chancery court. See Tenn.Code Ann. § 32-3-109 (2007); see also, Jack W. Robinson Sr., Jeffrey Mobley & Andra J. Hedrick, 1 Pritchard on Wills and Administration of Estates § 402 (6th ed. 2007) ("Jurisdiction over suits for construction"). If this case had been filed in chancery court, it would be beyond dispute that the September 17, 2004, order was a final judgment because there would have been no other remaining claims before the court. Therefore, the Court of Appeals' holding in the pending case would result in the application of two different rules in will-construction suits: an appeal from a chancery court judgment would have to be filed within thirty days of the trial court's final judgment construing the will while an appeal from a probate court judgment could be filed upon the closing of the estate. In our view, having two different rules depending on the court in which the suit is filed would be problematic.
Moreover, allowing an appeal of a will-construction suit to await the closing of the estate could present significant challenges to probate courts and executors and impose substantial burdens on the beneficiaries of estates. If the probate court's construction of a will is appealed upon the closing of the estate and that court's construction of the will is later reversed by an appellate court, the distributed assets could be difficult to recover and redistribute in accordance with the appellate court's new construction of the will. For that reason, the appeal of a will-construction suit should be initiated within thirty days of the trial court's judgment construing the will. This holding will permit a resolution on appeal of the will-construction issues prior to the closing of the estate and to distribution of the estate's assets.
Conclusion
For the reasons stated above, we hold that the probate court's order filed on September 17, 2004, was a final judgment and that William Keith Ridley's notice of appeal filed on May 24, 2006, was untimely. Accordingly, we reverse the judgment of the Court of Appeals and dismiss the appeal. The costs of this appeal are assessed against William Keith Ridley, for which execution may issue if necessary.
NOTES
[1] Constance Ridley Smith was a party to this lawsuit in the probate court, but she did not appeal. We therefore refer only to William Keith Ridley in setting out the summary of the facts and proceedings below.
[2] Rule 54.02 provides:
When more than one claim for relief is present in an action . . . or when multiple parties are involved, the Court, whether at law or in equity, may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order . . . that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of the judgment adjudicating all the claims and the rights and liabilities of all the parties.
Tenn. R. Civ. P. 54.02 (2007) (emphasis added.)
[3] Rule 4(a) of the Tennessee Rules of Appellate Procedure provides that "[i]n an appeal as of right to the . . . Court of Appeals . . ., the notice of appeal required by Rule 3 shall be filed with and received by the clerk of the trial court within 30 days after the date of entry of the judgment appealed from[.]" Rule 4(b), however, goes on to provide that "if a timely motion under the Tennessee Rules of Civil Procedure is filed in the trial court by any party . . . (4) under Rule 59.04 to alter or amend the judgment[,]" the time for filing the notice of appeal shall run from the entry of the order granting or denying that motion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590209/ | 270 S.W.3d 773 (2008)
Moshen SADEGHI, Appellant,
v.
James GANG, Appellee.
No. 05-08-00035-CV.
Court of Appeals of Texas, Dallas.
November 24, 2008.
Rehearing Overruled December 30, 2008.
*774 Mark H. How, How, Frels, Rhodes, Woods & Duke, P.C., Mark Frels, Short How Frels & Heitz, P.C., Dallas, TX, for Appellant.
Charles Raymond Nichols, John H. Carney & Associates, William M. Ravkind, Dallas, TX, for Appellee.
Before Justices MOSELEY, RICHTER, and FRANCIS.
OPINION
Opinion by Justice RICHTER.
On our own motion, we withdraw our opinion of November 3, 2008 and vacate our judgment of that date. This is now the opinion of the court. This case involves a traditional summary judgment concerning the enforceability of a contract. Moshen Sadeghi and James Gang agreed to and announced the terms of a settlement on the record in open court. When Gang subsequently refused to honor the agreement, Sadeghi filed suit, and both parties moved for a traditional summary judgment. The trial court found the parties did not intend the agreement to be enforceable until it was reduced to writing and granted summary judgment for Gang. In four related issues on appeal, Sadeghi argues the trial court erred in granting judgment for Gang as a matter of law because the agreement was an enforceable contract. In an alternative issue, Sadeghi contends the trial court erred because there were material fact issues about whether the parties intended the agreement to be enforceable. We conclude the summary judgment evidence establishes the parties entered into an enforceable contract and therefore the summary judgment in favor of Gang was in error. We reverse the trial court's judgment granting Gang's motion for summary judgment and denying Sadeghi's motion for summary judgment and remand the case for further proceedings consistent with this opinion.
Background
Sadeghi was a plaintiff in a lawsuit against USA Secur*Glass Corporation ("Secur Glass"), Secur Car Armor Corporation ("Secur Car") (together, the "Corporations") and others. Gang was not named as a party to the lawsuit, but participated in the negotiation of a settlement. As part of the multi-party settlement, Gang agreed *775 to purchase Sadeghi's stock in the Corporations. The agreement, dictated into the record in open court, provided that Gang was to purchase all of Sadeghi's interest in Secur Car, represented by 833 shares of stock, and whatever interest Sadeghi owned in Secur*Glass. The purchase price of the stock was to be $1,200,000 if the transaction closed within 60 days, $1,300,000 if the transaction closed after 60 but within 120 days, and $1,400,000 if the transaction closed within 120 but before the expiration of 180 days. At the expiration of the 180th day, Gang was obligated to purchase the stock. The stock was to be held in escrow until the purchase price was paid. The effective date of the agreement was to be April 10, 2006, the day the agreement was announced in open court. The parties agreed Gang would make a $20,000 down payment when the agreement was executed. The down payment was non-refundable, but was to be credited toward the purchase price. The attorney reciting the terms of the agreement into the record also noted the parties' acknowledgment that the purpose of the settlement was to resolve the issue of previously issued shares in excess of the share limit. The parties also agreed to full mutual releases and the dismissal of all claims with prejudice. Each party was to be responsible for his own costs and attorney's fees. There is no dispute that the parties contemplated this agreement would also be subsequently reduced to writing.
After the agreement was announced in court, counsel for the Corporations provided counsel for Sadeghi with a draft stock purchase agreement. The parties agree the draft contained an error concerning a material term because it changed the effective date of the agreement. After the draft was circulated, the parties' counsel met once to discuss it, but the draft agreement was never signed. After receiving notice that Gang did not intend to consummate the purchase, Sadeghi made demand upon Gang to honor the oral agreement dictated into the record. When Gang refused, Sadeghi initiated this action for breach of contract and fraudulent inducement.[1]
Both parties moved for summary judgment on the contract claim. Gang argued there was no enforceable contract because the agreement lacked certain essential terms and was simply an agreement to agree. According to Gang, the absence of a formal writing signified there was no contract. Sadeghi maintained the agreement announced in court was an enforceable contract. The court denied Sadeghi's motion and granted summary judgment for Gang. In its order of final judgment, the court stated that "... the oral or preliminary agreement between the parties was intended by the parties to be subsequently reduced to writing before it became an enforceable contract. There being no execution on the written agreement, there was no enforceable contract." This appeal followed.
Standard of Review
The standard for reviewing a traditional motion for summary judgment is well-established. See Sysco Food Servs. v. Trapnell, 890 S.W.2d 796, 800 (Tex.1994); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). We review a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Dickey v. Club Corp., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied). A party moving for *776 traditional summary judgment is charged with the burden to establish that there are no genuine issues of material fact and it is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) (per curium). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982). When both sides move for summary judgment, the court is to review both sides' summary judgment evidence, determine all questions presented, and render the judgment the trial court should have rendered. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000).
Discussion
Although the parties offer differing characterizations of the issue, the crux of the matter presented for our determination is whether the summary judgment evidence establishes the existence of an enforceable contract as a matter of law. Sadeghi insists the agreement announced in open court constitutes an enforceable contract because it addresses all essential terms. Gang argues the agreement is not enforceable because it was not memorialized in a formal writing.
Whether the parties intended to enter an agreement is generally a question of fact. See Vermont Inform. Processing, Inc. v. Montana Beverage Corp., 227 S.W.3d 846, 852 (Tex.App.-El Paso 2007, no pet.). Whether a particular agreement constitutes an enforceable contract is generally a question of law. Id. A contract, whether written or oral, must define its essential terms with sufficient detail to allow a court to determine the obligations of the parties. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992); Searcy v. DDA, Inc., 201 S.W.3d 319, 322 (Tex.App.-Dallas 2006, no pet.). To be legally binding, the parties must have a meeting of the minds and must communicate consent to the terms of the agreement. See Meru v. Huerta, 136 S.W.3d 383, 390 (Tex.App.-Corpus Christi 2004, no pet.). The determination of a meeting of the minds is based on an objective standard of what the parties said and did rather than on their subjective state of mind. See Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 556 (Tex. App.-Houston [14th Dist.] 2002, no pet.).
If a contract is not clear and certain as to all essential terms, it will fail for indefiniteness. Lamajak, Inc. v. Frazin, 230 S.W.3d 786, 793 (Tex.App.-Dallas 2007, no pet.). When an agreement leaves material matters open for future adjustment and agreement that never occur, it is not binding on the parties and merely constitutes an agreement to agree. Fort Worth Indep. School Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex.2000); see also, Mooney v. Ingram, 547 S.W.2d 314, 317 (Tex.Civ.App.-Dallas 1977, writ ref'd n.r.e.).
After reviewing the record on appeal, we conclude Gang presented no evidence of any material terms that were not sufficiently clear or that were left open for future negotiation. To the contrary, the summary judgment evidence adduced by both parties establishes mutual agreement to the material terms of a contract. The agreement announced on the record to the court was presented as a complete agreement and final resolution of the litigation. There was no indication of any negotiation to occur in the future. There was no mention of any terms, material or otherwise, upon which agreement had yet to be reached. Although the parties contemplated a formal writing, this was not characterized *777 as a condition requisite to the formation of the contract. The material terms of the agreement were carefully detailed and included the amount of stock to be sold, the percentage interest in each company represented by the number of shares to be sold, the time frame applicable to each purchase price option, and the fact that there was an absolute obligation to purchase the stock at the end of the 180 day period. These terms were articulated with sufficient certainty that there is no doubt as to what the parties intended. The parties communicated their consent to the terms on the record in open court. In addition, the affidavit Gang submitted in support of his motion stated, "I agreed to purchase certain stock from ... Sadeghi under the terms set forth in the transcript of the April 10, 2006 settlement agreement." Therefore, the summary judgment evidence establishes a meeting of the minds and consent to the material terms of the agreement.
Offering neither argument nor authority, Gang also appears to assert the agreement is not a valid agreement under Rule 11 because he was not a party to the litigation that was settled. The issue, however, is not whether the agreement was valid under Rule 11, but whether there was an enforceable contract at all. Because the parties manifested an intent to be bound when the material terms of the agreement were announced to the court, we conclude there was an enforceable contract. We reverse the trial court's judgment that there was no enforceable contract and remand the case for further proceedings consistent with this opinion.
NOTES
[1] The fraudulent inducement claim was disposed of by the Mother Hubbard clause in the judgment and has not been raised on appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593329/ | 45 F.Supp. 714 (1942)
GENERAL ELECTRIC CO.
v.
HYGRADE SYLVANIA CORPORATION (RAYTHEON MFG. CO., Intervener).
District Court, S. D. New York.
May 29, 1942.
*715 Alexander C. Neave, of New York City (Harrison F. Lyman and Thomas D. Thacher, both of New York City, of counsel), for plaintiff.
Gifford, Scull & Burgess, of New York City (Newton A. Burgess, of New York City, of counsel), for defendant Hygrade Sylvania Corporation.
Dean S. Edmonds, of New York City, for defendant Raytheon Manufacturing Co.
Thurman Arnold, Asst. Atty. Gen. (Samuel S. Isseks, Ernest S. Meyers and Edward F. Butler, Sp. Assts. to Atty. Gen., of counsel), for the United States.
LEIBELL, District Judge.
The United States of America moves for leave to intervene as a defendant in this patent suit in order to assert certain defenses set forth in a proposed answer annexed to the notice of motion, "on the ground that the patents alleged in the complaint to be infringed by articles manufactured, used and sold by the defendant Hygrade Sylvania Corporation, have been used illegally [by the plaintiff, General Electric Company] in violation of the Federal anti trust laws and in a manner contrary to public policy". It is asserted that "these defenses to the plaintiff's claim present questions of law and of fact common to the main action".
The application is made under Rule 24 (b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which reads as follows: "(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties."
The patent suit presents the following issues: (1) the validity of certain claims of two patents owned by General Electric Company; (2) the infringement of the General Electric patents by Hygrade Sylvania Corporation; (3) the validity of the claims of three patents either owned by Hygrade Sylvania Corporation or of which Hygrade holds the exclusive license from the patent owner, Raytheon Manufacturing Company, also a defendant; (4) the infringement of the Hygrade patents by the General Electric Company. All these patents are alleged to involve certain basic principles on which fluorescent lights operate.
The United States through its Special Assistant Attorney General contends that the Court should, pursuant to Rule 24 (b) (2), exercise its discretion in favor of granting the Government's motion for leave to intervene in this patent suit; that the plaintiff comes into Court with unclean hands, having exploited its patents in a fashion contrary to the antitrust laws and to public policy; and that therefore this court of equity should "withhold its assistance from such a use of the patent by declining to entertain a suit for infringement". Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 493, 62 S.Ct. 402, 405, 86 L.Ed. ___.
The allegations of the Government's proposed answer charge that General Electric Company by a licensing agreement of December 30, 1937 (Ex. 1) has made an arrangement with Westinghouse Electric Manufacturing Company which "has required, and requires, Westinghouse to maintain the prices of fluorescent lamps manufactured by Westinghouse under such agreement at the prices fixed and followed by General Electric; and Westinghouse and General Electric have maintained, and now maintain, the prices so fixed by General Electric in connection with fluorescent lamps manufactured by Westinghouse and General Electric". (Par. 4.) The proposed answer further alleges that Westinghouse *716 maintains a system of distribution of fluorescent lamps through some 30,000 agents and that General Electric maintains a similar system through 83,000 agents, and that through these two large distribution systems "the prices of particular fluorescent lamps sold by General Electric and Westinghouse to their respective distributors and sold by such distributors to other distributors or to the consuming public are identical". (Pars. 5, 6 and 7.)
The Government alleges that the licensing agreement between General Electric and Westinghouse also provides that the amount of fluorescent lamps and incandescent lamps that may be manufactured by Westinghouse under its license agreement with General Electric "would not exceed 25.44% of the aggregate net sales (in dollars) of fluorescent and incandescent lamps sold by General Electric and Westinghouse"; and that Westinghouse agreed not to sell fluorescent lamps for export "except to those countries where General Electric had the right to export lamps". (Par. 8.)
Other allegations in the proposed answer relate to an agreement, dated July 1, 1939 (Ex. 2), between General Electric and Consolidated Electric Lamp Company, under which Consolidated was licensed to manufacture fluorescent lamps under the two patents in suit, but limited to an amount equal to 3.09% of the net yearly sales of General Electric or in the amount of $100,000 whichever might be the greater. The royalties payable by Consolidated to General Electric were fixed at 3 1/3 % of General Electric's list price for the lamps. It is charged that in this way General Electric "in effect controls the price of fluorescent lamps manufactured and distributed by Consolidated". The agreement also provides that Consolidated is not licensed to export fluorescent lamps from the United States. (Par. 9.) Other allegations of the proposed answer (Par. 10) charge in effect that General Electric by another short agreement of July 1, 1933 (Ex. 3) has used its fluorescent patents "for the purpose of extending the period of its monopoly in respect of incandescent lamps", by a tie-up between the fluorescent lamp agreement with Consolidated (Ex. 2) and an incandescent lamp agreement with Consolidated, dated July 1, 1933 (Ex. 4) (Par. 10).
International General Electric Company, Inc., is a wholly owned subsidiary of General Electric. The proposed answer charges that through this subsidiary General Electric has entered into various agreements with the principal lamp companies in foreign countries not to export fluorescent lamps to those countries, and that in turn the foreign companies have agreed not to export fluorescent lamps to the United States. A list of the foreign companies involved is set forth in paragraph 11 of the proposed answer.
The proposed answer also charges that under certain agreements dated December 30, 1937, General Electric, the Claude Paz et Silva (a French corporation) and Claude Neon Lights, Inc., they have agreed to divide the field for the manufacture and distribution of fluorescent lights in the United States, the General Electric taking the "indoor" field and Claude Neon Lights the "outdoor" field. (Par. 12.)
There are some general allegations of the proposed answer, such as those in paragraph 13 that the two patents in suit are part of an aggregation of hundreds of patents and patent rights which General Electric has acquired for the purpose of dominating the electric lamp field, including fluorescent lamps, and are being used for that purpose; that General Electric is the only manufacturer and seller of bases for the fluorescent lamps and of automatic machinery used in making fluorescent lamps, and that the Corning Glass Works, with which General Electric has agreements, controls and dominates the licensing of machinery for the making of glass tubing used in the manufacture of fluorescent lamps and controls and dominates the sale of such glass tubing (Par. 14). It is also alleged that General Electric controls and dominates the manufacture and sale of auxiliary equipment for the operation of fluorescent lamps, such as ballasts and starting switches, and by that means General Electric controls the marketing of fluorescent lamps (Par. 15). There is a further allegation that because fluorescent lighting uses less electrical energy than incandescent lighting, the General Electric Company has suppressed the use of fluorescent lighting "for the purpose of aiding the principal public utility companies". (Par. 16.)
All of the acts complained of against the General Electric Company in the proposed answer of the United States are alleged to constitute "an illegal use of such patents in violation of the Act of Congress of July 2, 1890, c. 647, 26 Stat. 209, as amended, 15 U.S.C.A. § 1, entitled `An act to protect trade and commerce against unlawful restraints *717 and monopolies', said act being commonly known as the `Sherman Antitrust Act', and the Act of Congress of October 15, 1914, c. 323, 38 Stat. 730, as amended, entitled `An act to supplement existing laws against unlawful restraints and monopolies and for other purposes', said act being commonly known as the `Clayton Act', and is contrary to public policy."
The relief sought by the Government under its proposed answer is "that the Complaint herein of General Electric Company be dismissed".
It has been held by the United States Supreme Court in two decisions, in January of this year, that if a plaintiff patentee suing an alleged infringer has used the patent for illegal purposes or contrary to a public policy, then the patentee comes into a court of equity with unclean hands and the Court is justified in denying the patentee any relief against the alleged infringer.
In Morton Salt Co. v. G. S. Suppiger Co., supra, the Court had before it the question of "whether a court of equity will lend its aid to protect the patent monopoly when respondent [the patentee] is using it as the effective means of restraining competition with its sale of an unpatented article. * * *" In connection with the sale of salt tablets by a subsidiary, the patentee licensed its patented machines to canners "to use the machines upon condition and with the agreement of the licensees that only the subsidiary's salt tablets be used with the leased machines". The court held (314 U.S. at page 492, 62 S.Ct. at page 405, 86 L.Ed. ___): "It is a principle of general application that courts, and especially courts of equity, may appropriately withhold their aid where the plaintiff is using the right asserted contrary to the public interest. Virginian R. Co. v. System Federation, 300 U.S. 515, 552, 57 S.Ct. 592, 601, 81 L.Ed. 789; Central Kentucky Natural Gas Co. v. Railroad Commission, 290 U.S. 264, 270, 273, 54 S.Ct. 154, 156, 157, 78 L.Ed. 307; Harrisonville v. W. S. Dickey Clay Mfg. Co., 289 U.S. 334, 337, 338, 53 S.Ct. 602, 603, 77 L.Ed. 1208; Beasley v. Texas & Pacific R. Co., 191 U.S. 492, 497, 24 S.Ct. 164, 165, 48 L.Ed. 274; Securities & Exchange Commission v. United States Realty [& Improvement] Co., 310 U.S. 434, 455, 60 S.Ct. 1044, 1053, 84 L.Ed. 1293; United States v. Morgan, 307 U.S. 183, 194, 59 S.Ct. 795, 801, 83 L.Ed. 1211."
The Court further stated (314 U.S. at page 494, 62 S.Ct. at page 406, 86 L.Ed. ___): "It is the adverse effect upon the public interest of a successful infringement suit in conjunction with the patentee's course of conduct which disqualifies him to maintain the suit, regardless of whether the particular defendant has suffered from the misuse of the patent."
The reasons for barring the prosecution of such a suit were said to be "* * * fundamentally the same as those which preclude an infringement suit * * * against a vendee of a patented or copyrighted article for violation of a condition for the maintenance of resale prices, Adams v. Burke, 17 Wall. 453, 21 L.Ed. 700; Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 28 S.Ct. 722, 52 L.Ed. 1086; Bauer & Cie v. O'Donnell, 229 U.S. 1, 33 S.Ct. 616, 57 L.Ed. 1041, 50 L.R.A.,N.S., 1185, Ann.Cas.1915A, 150; Straus v. Victor Talking Machine Co., 243 U.S. 490, 37 S.Ct. 412, 61 L.Ed. 866, L.R.A. 1917E, 1196, Ann.Cas.1918A, 955; Boston Store v. American Graphophone Co., 246 U.S. 8, 38 S.Ct. 257, 62 L.Ed. 551, Ann.Cas. 1918C, 447; cf. United States v. General Electric Co., 272 U.S. 476, 485, 47 S.Ct. 192, 195, 71 L.Ed. 362." 314 U.S. at page 494, 62 S.Ct. at page 406, 86 L.Ed. ___.
The action of the District Court (31 F. Supp. 876) in dismissing the complaint "for want of equity" was upheld, and the reversal of the District Court's decree by the Circuit Court of Appeals, 7th Circuit (117 F.2d 968), was reversed.
In another case, B. B. Chemical Co. v. Ellis et al., 314 U.S. 495, at page 497, 62 S.Ct. 406, at page 407, 86 L.Ed. ___, decided at the same time as the Morton Salt Co. case, the Court held: "The courts below held that petitioner's sale to manufacturers of the unpatented materials for use by the patented method operated as a license to use the patent with that material alone and thus restrained competition with petitioner in the sale of the unpatented material, as in Carbice Corp. v. American Patents [Development] Corp., 283 U.S. 27, 51 S.Ct. 334, 75 L.Ed. 819, and Leitch Mfg. Co. v. Barber Co., 302 U.S. 458, 58 S.Ct. 288, 82 L.Ed. 371."
In the B. B. Chemical Co. case the District Court had sustained the validity of Claim 4 of the petitioner's patent and ruled that it was infringed by respondent, but nevertheless held that petitioner was debarred from enjoining the infringement because petitioner misused the patent by permitting its use only with certain unpatented material sold by the petitioner. 32 *718 F.Supp. 690. The Circuit Court of Appeals, First Circuit, affirmed the decree of the District Court, dismissing the complaint. 117 F.2d 829. The United States Supreme Court held "that the maintenance of this suit to restrain any form of infringement is contrary to public policy, and that the district court rightly dismissed it". The Supreme Court concluded its opinion with the statement (314 U.S. at page 498, 62 S.Ct. at page 408, 86 L.Ed. ___): "* * * petitioner suggests that it is entitled to relief because it is now willing to give unconditional licenses to manufacturers on a royalty basis, which it offers to do. It will be appropriate to consider petitioner's right to relief when it is able to show that it has fully abandoned its present method of restraining competition in the sale of unpatented articles and that the consequences of that practice have been fully dissipated."
It has also been held that a "complainant, entering a court of equity, must come with clean hands", and that the maxim is not limited "to a case where the iniquitous action is one of which the moving party may personally complain"; that "the rule thus invoked need not be pleaded at all"; that "it is not a matter of defense primarily" but that "courts apply it, not to favor a defendant, but because of the interest of the public; courts act sponte sua". Bell & Howell Co. v. Bliss, 7 Cir., 262 F. 131, 135. Cf. McMullen v. Hoffman, 174 U.S. 639, 19 S.Ct. 839, 43 L.Ed. 1117; Memphis Keeley Institute v. Leslie E. Keeley Co., 6 Cir., 155 F. 964, 972, 16 L.R.A.,N.S., 921; American Ins. Co. v. Lucas, D.C., 38 F.Supp. 926, 934. "The court will of its own motion apply the maxim at any stage of the proceedings". General Theatres v. Metro-Goldwyn-Mayer D. Corp., D.C., 9 F.Supp. 546, 549; Gynex Corp. v. Dilex Institute of F. Hygiene, 2 Cir., 85 F.2d 103, 106. Of course, the fraud or other misconduct of the complainant must be "connected with the matter in litigation". Bentley v. Tibbals, 2 Cir., 223 F. 247, 252. The United States Supreme Court, in the Morton Salt Co. case, supra, and the B. B. Chemical Co. case, supra, has held that the conduct of a patentee in using a patent "contrary to public policy" is connected with a suit for infringement of the patent, so that the misconduct falls within the bar of the equitable maxim of "clean hands", and the patentee's infringement suit fails "for want of equity".
The General Electric Company in opposing the Government's motion to intervene contends that its own licensing distribution system through its "agents" and its licensing arrangement with Westinghouse, including the use of that company's distribution system of "agents", were before the United States Supreme Court in United States v. General Electric Co., 272 U.S. 476, 47 S.Ct. 192, 71 L.Ed. 362, and were held not to violate the Anti-Trust Act of July 2, 1890, 26 Stat. 209, c. 647, the Sherman Act, and the validity of the license granted by the Electric Company to the Westinghouse Company was sustained. In a recent case, United States v. Masonite Corp. et al., 62 S.Ct. 1070, 1077, 86 L.Ed. ___, decided May 11, 1942, the United States Supreme Court referred to the General Electric Company case as follows: "We do not have here any question as to the validity of a license to manufacture and sell, since none of the `agents' exercised its option to acquire such a license from Masonite. Hence we need not reach the problems presented by Bement & Sons v. National Harrow Co., 186 U.S. 70, 22 S.Ct. 747, 46 L.Ed. 1058, and that part of the General Electric case which dealt with the license to Westinghouse Company. Rather we are concerned here only with a license to vend. But it will not do to say that since the patentee has the power to refuse a license, he has the lesser power to license on his own conditions. There are strict limitations on the power of the patentee to attach conditions to the use of the patented article."
It may be that the present arrangement of General Electric with Westinghouse goes beyond the licensing agreement passed upon by the United States Supreme Court in 1926. However, there are other allegations in the proposed answer of the Government, submitted on its motion to intervene, which, coupled with the Westinghouse agreement, charge in effect a plan on the part of the General Electric Company to fix resale prices; to limit the quantity of lamps which a licensee may manufacture; to divide markets, foreign and domestic; to limit the manufacture for export, and to prevent imports, all of which are alleged to prevent competition and to restrain interstate and foreign commerce, in violation of the antitrust laws and contrary to public policy.
The Special Attorney General by this motion to intervene places before the Court all of these allegedly illegal acts of the *719 plaintiff in the use of its two patents in suit. These charges cannot be ignored by this Court even though the application of the Attorney General for leave to intervene is, for other reasons, denied at this time. On the allegations of the Government's proposed answer, if nothing more appeared, the Court would be under a duty to inquire into the charges presented. Of course, the court itself would be in no position to assemble any evidence bearing on the said charges and unless the defendants raised the same issues and presented some proof thereon, the Court in the exercise of its discretion, under Rule 24(b) (2), Federal Rules of Civil Procedure, would be obliged to grant the application of the United States for leave to intervene, so that some proper party might be before the Court to submit whatever evidence is available in support of the charges.
On the argument of this motion the attorney for defendant Hygrade stated: "I merely want to state that the defendant, Hygrade Sylvania Corporation, has no desire nor intention to oppose or interfere with the plan of the Government to intervene in the case. If the Court should decide to grant the motion, Hygrade has no objection whatever, but I assume that provision would be made for amending the pleadings accordingly. However this position we take is without prejudice to any right to make use of the defense in the future. That is all I have to say for Hygrade."
If the defendant decides to present evidence on these issues it will be unnecessary for the Government to intervene. A private litigant may raise the issue, as was done in the Morton Salt Co. case and the B. B. Chemical Co. case, supra. For that reason alone the government's motion should be denied, at this time. If the defendant fails to present the issues alleged in the government's proposed answer, the government may renew its motion to intervene.
There are other reasons why the Government's motion should be denied, without prejudice to a renewal. It appears from the affidavits submitted by the plaintiff in opposition to the motion that the issue of the legality of several of the agreements annexed to the Government's proposed answer is presented by a bill of complaint filed on January 29, 1941 in the District Court of the United States for the District of New Jersey, wherein the United States of America is the complainant and the General Electric Company, the International General Electric Company, Incorporated, the Westinghouse Electric and Manufacturing Company, the Corning Glass Works, the Consolidated Electric Lamp Company and others are defendants. (Civil Action No. 1364.) The trial of that case has been adjourned because it would take many months of the time of General Electric and other company officials whose efforts should be devoted, without interruption, to the speedy fulfillment of numerous essential war contracts involving hundreds of millions of dollars. Those war contracts are "first things" which in the opinion of the War and Navy Departments take precedence over the trial of the antitrust suit. I am fully in accord with the viewpoint of those who are charged with a successful conduct of this "war of survival". I do not see why any different rule should be applied to the Government's application for leave to intervene in this present patent suit, to try here many of the issues involved in the New Jersey suit.
Further, the Special Assistant Attorney General states in effect that because he believes the New Jersey antitrust suit involves illegal combinations in respect to the manufacture and sale of incandescent lamps only, he proposes to file in this Court an antitrust suit alleging similar illegal conduct of the plaintiff and others in the manufacture and sale of fluorescent lamps, and that in said suit he will seek an injunction restraining General Electric from proceeding with the patent suit now on trial before me.
The present trial has covered 1756 pages of testimony during which over a hundred exhibits have been received in evidence. The trial of the issues as to the validity of plaintiff's and defendant's patents and their alleged infringement will take at least another week. After that briefs will be prepared and submitted and those issues will be taken under advisement. After I have prepared my opinion on the patent issues, I shall again survey the situation in respect to the antitrust suits and the attitude of the defendant in respect to the charges contained in the Government's proposed answer. If it then appears advisable to have the Government renew its motion to intervene, I shall so advise the Attorney General and no decree will be entered in this patent suit before that.
*720 The Government's motion for leave to intervene in the patent suit is denied, without prejudice to a renewal at such time as the Court may indicate.
Submit order on notice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4558365/ | Fourth Court of Appeals
San Antonio, Texas
August 21, 2020
No. 04-20-00254-CR
The STATE of Texas,
Appellant
v.
Chase Ray COLEMAN,
Appellee
From the County Court, Kinney County, Texas
Trial Court No. 10236CR
Honorable Spencer W. Brown, 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/1745109/ | 998 So. 2d 608 (2009)
ANDERSON
v.
STATE.
No. 1D08-3595.
District Court of Appeal of Florida, First District.
January 9, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590133/ | 972 So.2d 189 (2008)
CRAFT
v.
STATE.
No. 3D07-2556.
District Court of Appeal of Florida, Third District.
December 12, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/778854/ | 301 F.3d 37
VANDOR, INC., Plaintiff-Appellant,John P. Bartolomei, Appellant,v.James MILITELLO, James R. Militello Realty, Inc., 438 Main Street, Inc., Delaware North Companies, Inc., Jeremy Jacobs, Andrew Nicol, Solar Sportsystems, Inc., Erie County Industrial Development Agency (ECIDA), City of Buffalo, 60 Key Centre Associates, LLC, Emmis Management Co., Inc., Ciminelli Development Co., Inc., Ciminelli Management Corp., Paul Ciminelli, Buffalo Economic Renaissance Corp. (BERC), Alan H. Delisle, Anthony M. Masiello, Defendants-Appellees.
Docket No. 01-7334.
Docket No. 01-9485.
United States Court of Appeals, Second Circuit.
Argued: June 25, 2002.
Decided: August 19, 2002.
Kevin W. Goering, New York, NY (John P. Bartolomei, on the brief), for Appellant Vandor, Inc.
John P. Bartolomei, pro se, Niagara Falls, NY, for Appellant John P. Bartolomei.
Gerald T. Walsh, Buffalo, NY (Guy J. Agostinelli, on the brief), for Appellees James Militello and James R. Militello Realty.
Kevin M. Kearney, Buffalo, NY (Michael B. Risman, Corporation Counsel of the City of Buffalo; David R. Hayes, Assistant Corporation Counsel; Kathleen Sellers; Lawrence J. Vilardo; Anthony J. Latona; Paul Rubin; Richard Y. Im, on the brief), for Appellees 438 Main Street, Inc., Delaware North Companies, Inc., Jeremy Jacobs, Andrew Nicol, Solar Sportsystems, Inc., Erie County Industrial Development Agency (ECIDA), City of Buffalo, 60 Key Centre Associates, LLC, Emmis Management Co., Inc., Ciminelli Development Co., Inc., Ciminelli Management Corp., Paul Ciminelli, Buffalo Economic Renaissance Corp. (BERC), Alan H. DeLisle, Anthony M. Masiello.
Before: JACOBS, LEVAL, KATZMANN, Circuit Judges.
PER CURIAM:
1
Vandor, Inc. appeals the judgment of the Western District of New York (Elfvin, J.), dismissing Vandor's § 1983 complaint for failure to state a claim. The eighteen-count complaint alleged a taking violative of Vandor's substantive due process rights by certain governmental entities and officials, and by private individuals and companies acting in concert with the government. In another notice, John P. Bartolomei, Esq., who represented Vandor in the underlying suit, challenges the district court's imposition of Rule 11 sanctions.
2
The district court dismissed all of Vandor's claims with prejudice and on the merits, ruling alternatively that the takings claim "could also be dismissed because the plaintiff had failed to exhaust state methods." Vandor, Inc. v. James Militello, et al., 00-CV-0756E(F) (W.D.N.Y. Oct. 23, 2001). On appeal, Vandor maintains that it asserted a valid takings claim, and that even if the takings claim is determined to have been unripe, the district court lacked jurisdiction to dismiss it with prejudice.
3
We affirm the district court's dismissal with prejudice of the takings claim and the substantive due process claim based on the alleged taking, although on different grounds.
4
We are obliged to consider the ripeness question before reaching the merits of Vandor's claims because ripeness is jurisdictional, Marchi v. Board of Cooperative Educ. Servs. of Albany, 173 F.3d 469, 478 (2d Cir.1999), and absent jurisdiction "federal courts do not have the power to dismiss with prejudice," Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 122 (2d Cir.1999) (emphasis added).
5
A takings claim is unripe where "a remedy potentially is available under the state constitution's provision." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 380 (2d Cir.1995); see also Williamson Co. Regional Planning v. Hamilton Bank of Johnson City, 473 U.S. 172, 187-88, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985); Dougherty v. Town of North Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88-89 (2d Cir.2002).
6
Although Vandor identifies no potential avenue for state court relief, we recognize that under New York State law, Article 78 is a form of proceeding available to compel public officials to comply with their responsibilities. N.Y. C.P.L.R. § 7801, et seq. (McKinney's 2002). The statute of limitations for instituting such a petition, however, is generally four months. N.Y. C.P.L.R. § 217(1) (McKinney's 2002). That period has long passed, and Vandor posits no argument for equitable tolling, or for application of a different limitations period.
7
"[A] claimant cannot be permitted to let the time for seeking a state remedy pass without doing anything to obtain it and then proceed in federal court on the basis that no state remedies are open." Gamble v. Eau Claire Co., et al., 5 F.3d 285, 286 (7th Cir.1993). Thus, though the merits of Vandor's takings claim (such as they are) are unripe, Vandor does not say how they can ever ripen. Since Article 78 is constitutionally sufficient, and since no other available avenue is cited by Vandor, we may therefore dismiss the claim with prejudice.
8
Finally, we affirm all other rulings of the district court, including its imposition of sanctions, for the reasons stated by the district court. Vandor, Inc. v. James Militello, et al., 00-CV-0756E(F) (W.D.N.Y. Feb. 14, 2001); Vandor, Inc., 00-CV-0756E(F).
9
We affirm the district court's judgment dismissing the complaint with prejudice. | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1037762/ | RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0235p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
AMERICAN BANK, FSB, dba American
Plaintiff-Appellee, --
Premium Finance,
-
No. 12-6349
,
>
-
v.
-
Defendant-Appellant. N-
CORNERSTONE COMMUNITY BANK,
Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 1:11-cv-00324—Susan K. Lee, Magistrate Judge.
Argued: July 31, 2013
Decided and Filed: August 16, 2013
Before: GIBBONS, SUTTON and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ARGUED: Scott N. Brown, Jr., SPEARS, MOORE, REBMAN & WILLIAMS, P.C.,
Chattanooga, Tennessee, for Appellant. Kenneth Oestreicher, WHITEFORD, TAYLOR
& PRESTON, LLP, Baltimore, Maryland, for Appellee. ON BRIEF: Scott N. Brown,
Jr., SPEARS, MOORE, REBMAN & WILLIAMS, P.C., Chattanooga, Tennessee, for
Appellant. Kenneth Oestreicher, Kristen B. Perry, WHITEFORD, TAYLOR &
PRESTON, LLP, Baltimore, Maryland, Harry R. Cash, GRANT, KONVALINKA &
HARRISON, P.C., Chattanooga, Tennessee, for Appellee.
_________________
OPINION
_________________
SUTTON, Circuit Judge. American Bank and Cornerstone Community Bank
each claimed a security interest in funds held in an account at Cornerstone. The
account’s owner, insurance broker U.S. Insurance Group (USIG), held the money, which
it had received from American, in trust as part of an insurance deal. After Cornerstone
1
No. 12-6349 Am. Bank v. Cornerstone Community Bank Page 2
took the contested money and applied it to a debt USIG separately owed it (and after
USIG went bankrupt), American sued Cornerstone for conversion. The magistrate judge
held that American’s interest trumped Cornerstone’s interest and that Cornerstone had
no right to the money. Because the Premium Finance Company Act, Tenn. Code Ann.
§§ 56-37-101 et seq. (2008), gave American a senior perfected security interest in the
contested funds good against any competing interest claimed by Cornerstone, we affirm.
I.
American Bank loaned $429,991 to Saberline Transportation to pay for an
insurance premium. As part of the deal, American took a security interest in “all
unearned premiums,” R.21-6 at 5, that part of an insurance premium covering the term
of insurance that “has not yet occurred,” Black’s Law Dictionary 1300 (9th ed. 2009).
Insurers often require full payment in advance of coverage, here for twelve months, after
which the premium is “earned” as the term of the policy progresses. Saberline agreed
that, if it defaulted on the loan, American could cancel the policy and instruct the insurer,
Praetorian Insurance Company, to return any unearned premiums to American. Thus,
if Saberline defaulted after three months, the agreement entitled American to the
remaining three-quarters of Saberline’s premium.
USIG brokered the deal. American would deliver the funds to USIG’s account
at Cornerstone, after which USIG would forward the money to Praetorian. Consistent
with this arrangement, American transferred $429,991 to USIG’s account at Cornerstone
through two payments in 2008.
Things did not go as planned. Instead of placing the money in a trust account for
Saberline, USIG told American to deposit the funds in USIG’s general operating account
at Cornerstone. USIG, as it happens, was already indebted to Cornerstone and had
authorized the bank to conduct daily sweeps of the operating account and apply anything
over $50,000 to the debt. As a result, on the two days when American deposited
Saberline’s insurance premiums, Cornerstone cleared the account of Saberline’s money
and reduced USIG’s debt in the process.
No. 12-6349 Am. Bank v. Cornerstone Community Bank Page 3
Saberline defaulted on its first payment to American. American canceled the
insurance policy and set out to recover the insurance premium. It was not that easy.
USIG repaid American with funds drawn from a separate account at a different bank, but
not long after USIG returned the money USIG filed for bankruptcy, turning this last
transfer into a preference payment. American settled with the bankruptcy trustee,
reserving its right to pursue a conversion claim against Cornerstone.
The magistrate judge issued a declaratory judgment that American had a superior
security interest in the disputed funds and that Cornerstone was liable for conversion.
Cornerstone appeals.
II.
Resolution of this case starts, and largely ends, with the Premium Finance
Company Act, Tenn. Code Ann. §§ 56-37-101 et seq. The statute regulates insurance-
premium financing agreements like this one, and the 2008 version of the law establishes
that American properly perfected its security interest in the unearned insurance
premiums and that American’s security interest takes priority over Cornerstone’s
security interest in the funds in the USIG account.
American, to start, obtained a security interest in the disputed funds. The Act
gives banks and other entities “a perfected security interest in any premiums financed
. . . if the buyer or borrower signs a written agreement assigning a security interest to the
seller, seller’s assignee or lender.” § 56-37-112 (2008). American had just such a
written agreement. Saberline gave American “a security interest in . . . any and all
unearned premiums and dividends which may be payable under the insurance policies.”
R.21-6 at 5.
With this agreement in place, American did not need to file its security interest
or give any other notice to perfect its security interest. As the Act explains, “[n]o filing
of the premium finance agreement shall be necessary to perfect the validity of such
agreement as a secured transaction.” Tenn. Code Ann. § 56-37-112 (2008). The Act
instead recognizes perfection of the security interest upon execution of the written
No. 12-6349 Am. Bank v. Cornerstone Community Bank Page 4
premium financing agreement and payment of the insurance premium. Id.; see also In
re Barton Indus., Inc., 104 F.3d 1241, 1247 (10th Cir. 1997).
The Act also gave American’s security interest priority over Cornerstone’s. A
security interest covered by the Act is perfected “as against creditors, subsequent
purchasers, pledgees, encumbrancers, trustees in bankruptcy or any other insolvency
proceeding under any law or anyone having the status or power of the aforementioned
or their successors or assigns.” Tenn. Code Ann. § 56-37-112 (2008). Cornerstone falls
into at least two lower-priority categories. Tennessee law generally defines “creditor”
to include “a general creditor, a secured creditor, a lien creditor, and any representative
of creditors,” id. § 47-1-201(13) (2008), a definition that covers Cornerstone, see App.
Br. at 7 (“[Cornerstone] was also a lender to USIG, having granted USIG a line of credit
loan, and also an unrelated term loan.”). In addition, Cornerstone was a “subsequent
purchaser” under the Act. Cornerstone conceded as much during oral argument. And
with good reason: Article 9 of the Uniform Commercial Code, as enacted in Tennessee,
says that “subsequent purchasers” include not just “buyer[s]” but also “secured
lender[s].” See Tenn. Code Ann. § 47-9-401, cmt. 7. The Act’s perfection and priority
provisions thus give American a senior security interest in the funds deposited in USIG’s
operating account.
Cornerstone offers several responses. It first invokes a provision of Tennessee’s
version of the U.C.C., which favorably treats a bank’s security interest in its customers’
deposit accounts. “[A] security interest held by the bank with which the deposit account
is maintained,” it says, “has priority over a conflicting security interest held by another
secured party.” Id. § 47-9-327(3). But the most Cornerstone can say about this
provision of the U.C.C. is that it suggests a different priority rule from the one set forth
in the Act. When that happens, courts customarily seek to honor as much of the
competing laws as they can by giving priority to the more specific piece of legislation.
“[I]t is a commonplace of statutory construction that the specific governs the general.”
RadLAX Gateway Hotel, LLC v. Amalgamated Bank, __ U.S. __, 132 S. Ct. 2065, 2071
(2012) (internal quotation marks omitted); see also Rent-N-Roll v. Highway 64 Car &
No. 12-6349 Am. Bank v. Cornerstone Community Bank Page 5
Truck Sales, 359 S.W.3d 183, 188 (Tenn. Ct. App. 2010). The detailed Premium
Finance Company Act, not the Uniform Commercial Code, amounts to the more specific
of the two laws. The U.C.C. itself embraces this canon, noting that, “[i]n case of conflict
between [Article 9] and a rule of law, statute, or regulation . . . , the rule of law, statute,
or regulation controls.” Tenn. Code Ann. § 47-9-201(c). Here, we have a specific
statute describing the perfection and priority of security interests related to premium
financing agreements that conflicts with a general statute that applies to commercial
transactions. If, as Cornerstone claims, just one set of these rules may apply to this
priority contest, it must be the Premium Finance Company Act.
This analysis helps to explain why Cornerstone cannot clear another hurdle it
faces in overturning the magistrate judge’s decision—or at least why this additional
obstacle, even if Cornerstone could sidestep it, does not alter the outcome of this dispute.
Article 9 separately provides that “[t]his chapter does not apply to . . . a transfer of an
interest in or an assignment of a claim under a policy of insurance.” Id. § 47-9-
109(d)(8). The provision is susceptible of two reasonable readings. It could be read to
exclude (1) a transfer of an interest in a policy of insurance and (2) an assignment of a
claim under a policy of insurance. That would help American because its security
interest amounts to “an interest in . . . a policy of insurance.” Or it could be read to
exclude (1) a transfer of an interest in a claim under a policy of insurance and (2) an
assignment of a claim under a policy of insurance. That would help Cornerstone because
American’s security interest does not seem to be a “claim under a policy of insurance.”
Every court to address the issue, including the magistrate judge in this case, has
embraced the “interest in” interpretation, the one that favors American, and thus has
exempted these types of transactions from Article 9. See, e.g., In re Barton Indus., 104
F.3d at 1246; In re QA3 Fin. Corp. No. Bk11-80297-TJM, 2011 WL 1297840, at *2
(Bankr. D. Neb. Apr. 5, 2011); In re JII Liquidating, Inc., 344 B.R. 875, 882–84 (Bankr.
N.D. Ill. 2006). We agree that this is the better interpretation largely for the reasons
given above: It “harmon[izes]” two statutes that would otherwise conflict and respects
the interpretive norm that the specific usually trumps the general. Digital Equip. Corp.
No. 12-6349 Am. Bank v. Cornerstone Community Bank Page 6
v. Desktop Direct, Inc., 511 U.S. 863, 879 (1994); Frazier v. E. Tenn. Baptist Hosp.,
Inc., 55 S.W.3d 925, 928 (Tenn. 2001).
Even if the Premium Finance Company Act gave American a senior perfected
security interest in the funds, Cornerstone claims that its good faith sweeps of the funds
do not amount to conversion under Tennessee law. But good faith has nothing to do
with it. “Conversion is the appropriation of another’s property to one’s own use and
benefit, by the exercise of dominion over the property, in defiance of the owner’s right
to the property.” Ralston v. Hobbs, 306 S.W.3d 213, 221 (Tenn. Ct. App. 2009).
“[W]rongful intent . . . is not an element of conversion and, therefore, need not be
proved.” White v. Empire Express, Inc., 395 S.W.3d 696, 720 (Tenn. Ct. App. 2012)
(emphasis added and internal quotation marks omitted). American met each requirement
for a conversion claim under Tennessee law. Cornerstone benefitted from the sweeps
by paying down USIG’s debt, reducing “the attendant risk of having a substantial loan
owed by a company in trouble.” R.54 at 16–17. By applying the funds to USIG’s
existing debt, Cornerstone exercised dominion and control over the funds. See In re
Hurtado, 342 F.3d 528, 533 (6th Cir. 2003); Bonded Fin. Servs., Inc. v. European Am.
Bank, 838 F.2d 890, 894 (7th Cir. 1988). And the sweeps did not respect, indeed defied,
American’s senior security interest in the contested funds.
For the first time on appeal, Cornerstone adds several new theories—some about
conversion, some about more general principles (waiver, laches, estoppel)—for avoiding
the conclusion that it converted the funds. But this is too late and too little. It is too late
because Cornerstone did not raise these arguments below. R.54 at 16 (magistrate judge
noting that Cornerstone “made no other argument opposing [American’s] contentions
as to the conversion”). Cornerstone thus forfeited the arguments. See United States v.
Huntington Nat’l Bank, 574 F.3d 329, 332 (6th Cir. 2009).
It is too little because there is no support for the arguments anyway. Cornerstone
claims that its actions were not the proximate cause of American’s loss, precluding
liability for conversion. But proximate cause is not an element of the claim. See Car
Transp. v. Garden Spot Dists., 805 S.W.2d 632, 635 (Ark. 1991) (“[P]roximate causation
No. 12-6349 Am. Bank v. Cornerstone Community Bank Page 7
is not an element for the jury to find prior to awarding damages for conversion.”);
90 C.J.S. Trover and Conversion § 4 (“[P]roximate causation” is not “an element of
conversion.”). Cornerstone adds that American had no right to immediate possession
of the property. But the Tennessee cases laying out the elements of a conversion claim
impose no such requirement. See, e.g., Ralston, 306 S.W.3d at 221. At all events,
American’s agreement with Saberline made the unearned premiums “immediately due
and payable to” American in the event of default, which occurred here because
Saberline—and USIG as its agent—did not “comply with [the] term[s] or condition[s]
of th[e] Agreement.” R.21-6 at 5.
Cornerstone contends that American waived its conversion claim by settling its
preference claim with the bankruptcy trustee (and paying the estate $310,304.25) after
USIG filed its bankruptcy petition. Waiver is the intentional, voluntary relinquishment
of a known right, and “there must be clear, unequivocal and decisive acts of the party”
to demonstrate it. Collins v. Summers Hardware & Supply Co., 88 S.W.3d 192, 201
(Tenn. Ct. App. 2002) (internal quotation marks omitted). American did no such thing.
The settlement agreement with the trustee included this disclaimer: “Nothing contained
herein shall constitute a waiver or release, nor is it intended to affect [American’s] right
to recover . . . from parties other than the Trustee.” R.21-13 at 5. That is not the
“intentional,” “voluntary,” “clear,” “unequivocal” or “decisive” surrender of a right.
Just the opposite.
Laches does not save Cornerstone. It requires a showing of inexcusable delay
that causes prejudice to the defendant. See Baptist Physician Hosp. Org., Inc. v.
Humana Military Healthcare Servs. Inc., 481 F.3d 337, 353 (6th Cir. 2007). Even if
there had been an inexcusably long delay between Cornerstone’s sweeps and American’s
conversion action, not shown on this record, Cornerstone has not shown prejudice. Its
one statement that the “passage of time made it impossible for [Cornerstone] . . . to assist
[American] in mitigating its loss,” App. Br. at 52, is a conclusion, not an explanation,
and at any rate it is a conclusion that seems to speak to American’s prejudice, not
Cornerstone’s.
No. 12-6349 Am. Bank v. Cornerstone Community Bank Page 8
Cornerstone’s equitable estoppel arguments re-plow grounds already covered.
It says that American voluntarily surrendered its rights to the money to the bankruptcy
trustee, but see R.21-13 at 5 (the disclaimer in the settlement agreement), that American
did not give notice to Cornerstone about its security interest, but see the Premium
Finance Company Act, Tenn. Code Ann. § 56-37-112, and that American waited too
long to bring its conversion claim, but see Baptist Physician Hosp., 481 F.3d at 353.
III.
For these reasons, we affirm. | 01-03-2023 | 08-16-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2455567/ | 256 P.3d 897 (2011)
CHAVEZ
v.
STATE.
No. 104551.
Court of Appeals of Kansas.
July 29, 2011.
Decision Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590778/ | 972 So. 2d 247 (2007)
Carlos S. McKNIGHT, Appellant,
v.
STATE of Florida, Appellee.
No. 1D06-5937.
District Court of Appeal of Florida, First District.
December 31, 2007.
*248 Nancy A. Daniels, Public Defender; and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
Bill McCollum, Attorney General; and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
BROWNING, C.J.
Carlos S. McKnight (Appellant) appeals orders revoking his probation and sentencing him to prison after the trial court relied on certain testimony that, according to Appellant, was based on evidence obtained during an unlawful seizure and should have been suppressed. Finding no abuse of discretion, we affirm the denial of the motion to suppress and the entry of the final orders revoking probation and sentencing Appellant to prison based on his material violations of Conditions (5) and (18).
In March 2005, Appellant was sentenced to one year and one day in prison, to be followed by ten years' probation. A May 2006 affidavit alleged that during that probationary period, Appellant had violated 1) Condition (5), by failing to live and remain at liberty without violating the law, in that on May 3, 2006, he was arrested for driving with a suspended or revoked license; 2) Condition (18), by failing to undergo a drug/alcohol evaluation, in that on April 26, 2005, Appellant was instructed to attend an evaluation at River Region Human Services, yet as of May 5, 2006, he had provided no proof of attendance; and 3) Condition (10), by failing to pay court costs to *249 the probation officer pursuant to the court's agreed payment instructions, in that Appellant owed $4,818.30 to the Washington County Clerk of Court as of May 5, 2006.
By the date of the revocation hearing, Appellant was nearly caught up in paying the court cost arrearage; the trial court concluded that this violation of Condition (10) was not material. Ms. Thomas, Appellant's probation supervisor, testified that Appellant had not provided documentation of completion of the required drug/alcohol evaluation within the allotted time. The trial court's finding a violation of Condition (18) based on this non-compliance is supported by competent, substantial evidence and is not challenged on appeal. Rather, Appellant contends that the court erred in finding a violation of Condition (5), in that the inculpatory evidence deriving from Appellant's contact with the police officers is inadmissible, should have been suppressed, and thus should not have been considered as a factor in revoking probation. See State v. Cross, 487 So. 2d 1056 (Fla.1986) (stating that evidence obtained through an unlawful search is inadmissible in a probation revocation hearing).
The parties agree on the appropriate standard of review. In reviewing the denial of a motion to suppress, this court must determine whether the factual findings are supported by competent, substantial evidence, but no deference is due the trial court's conclusions of law. See Hines v. State, 737 So. 2d 1182, 1184 (Fla. 1st DCA 1999). Although appellate courts accord a presumption of correctness to the trial court's rulings on suppression issues regarding the "determination of historical facts," appellate panels "must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment and, by extension, article I, section 9 of the Florida Constitution." Connor v. State, 803 So. 2d 598, 608 (Fla.2001) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996)). In applying this presumption of correctness regarding historical facts, this court "must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling." Pagan v. State, 830 So. 2d 792, 806 (Fla.2002). The decision to revoke probation is reviewed for an abuse of discretion. See Hurst v. State, 941 So. 2d 1252, 1253 (Fla. 1st DCA 2006).
Viewed in a light most favorable to the State, see Pagan, the evidence that Appellant sought to suppress established the following facts. The alleged violation of Condition (5) was based on Appellant's arrest on May 3, 2006, for driving while his license was suspended or revoked. Officer Straitt testified that on that date, he was working in a specialized unit dealing with community problems such as drug and burglary complaints. When on assignment, he wore a uniform identifying himself as a Jacksonville police officer. The police had received a series of citizen complaints about a duplex at 718 Day Avenue in Riverside, where a black male reportedly was selling drugs. Straitt and another officer knocked on a door at that address and hoped to meet with the tenant. Instead, they encountered the landlord, who stated that Shawn Washington rented and lived in that apartment, but no one was there at 4:00 p.m. The police wanted to contact Mr. Washington to determine whether the recent complaints about criminal activity were well-founded. The landlord told the officers that Mr. Washington would be back around 7:00 p.m. Officer Straitt and his partner returned to 718 Day Avenue around 7:00 p.m. and approached the duplex.
*250 Having heard a vehicle drive up, the officers observed a black male (who was identified in court as Appellant) sitting in the driver's seat of a sports utility vehicle (SUV) in the front driveway. The engine was running, and no one else was in the vehicle. At that point, the police knew only that the suspect, Mr. Washington, was a black male. Over an objection, Officer Straitt testified that as the police approached the stopped vehicle, Appellant opened the door but remained inside. The vehicle was parked close to the front door of Apartment # 718. The police were neither blocking the vehicle nor restraining Appellant's movement.
Officer Straitt (who was in uniform) introduced himself, stated that he was performing an investigation, and asked (speaking in a conversational tone and without brandishing a weapon) if Appellant was Mr. Washington and whether he lived at # 718. When Appellant stated his name, which is not Washington, Officer Straitt asked for his identification to verify that Appellant was, in fact, not the person the police were investigating for criminal activity and to have a name for the police investigation report indicating persons to whom the officers had spoken. Appellant produced a Florida I.D. card with a red border. The presentation of the I.D. card, under the particular circumstances, led Straitt to suspect that Appellant might be driving without a valid driver's license. From his experience, Officer Straitt knew that many people with I.D. cards do not have a license. When Officer Straitt asked if Appellant had a valid driver's license, Appellant told him "no." When the officer asked whether the license was suspended or revoked, Appellant commented that it was "badly suspended." Checking the status of the license disclosed that Appellant was a habitual traffic violator. Because that status of violation is a felony, the officers could not merely write a traffic citation. Instead, they arrested Appellant, read his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and seized the vehicle. Appellant remarked that the police had not seen him driving the SUV, but he did not comment on the license violation.
As to the events leading to his detention and arrest relating to Condition (5), Appellant notes on appeal that he presented evidence that conflicted with the State's contention that the officers observed Appellant in the driver's seat shortly after the SUV arrived at # 718. Appellant testified that an officer mentioned the recent citizen complaints and asked him what was going on. When the officer asked for a driver's license, Appellant produced an I.D. card and stated he did not have a valid license because it was "badly suspended." The DHSMV had notified Appellant that his license was suspended for five years. Appellant testified that he did not drive because he knew that doing so without a valid license would violate Condition (5). To the extent that the testimony of Officer Straitt and Appellant conflicted, the trial court exercised its authority as the trier of fact to assess credibility and weigh the evidence in the State's favor.
The trial court noted that the testimony given by Officer Straitt over a defense objection is dispositive of the issues in Condition (5). The court found that the officers' contact with Appellant was a consensual police-citizen encounter up to the point where Appellant disclosed a violation of the law: the suspended or revoked license (where, according to the officer, Appellant had been driving the vehicle). Our task is to determine whether, given the facts as found and supported by competent, substantial evidence, the trial court correctly applied the law.
*251 This is not a "traffic stop" case, for the SUV had recently pulled into the driveway and was stationary, with the engine running and Appellant in the driver's seat. "The Fourth Amendment requires all warrantless `seizures' of a person to be founded upon at least reasonable suspicion that the individual seized is engaged in wrongdoing." Golphin v. State, 945 So. 2d 1174, 1180 (Fla.2006) (citing United States v. Mendenhall, 446 U.S. 544, 552, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980), and Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). The United Supreme Court made it clear in Terry, 392 U.S. at 19 n. 16, 88 S. Ct. 1868, that not every encounter between a law-enforcement officer and a citizen is a "seizure." The Florida Supreme Court has recognized essentially three levels of police-citizen encounters. See Golphin, 945 So.2d at 1180; Popple v. State, 626 So. 2d 185, 186 (Fla.1993). The first level, a "consensual encounter," "involve[s] minimal police contact and do[es] not invoke constitutional safeguards." Golphin, 945 So.2d at 1180. The second level, an "investigatory stop," allows a police officer to "detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime." Id.; § 901.151(2), Fla. Stat. (2006). The third level is an "arrest," which requires probable cause. § 901.151(4); Golphin, 945 So.2d at 1180.
Determining whether a police-citizen encounter is consensual or has risen to an investigatory stop, for Fourth-Amendment purposes, involves examining the totality of the circumstances surrounding the incident. See Florida v. Bostick, 501 U.S. 429, 439-40, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991); State v. Butler, 655 So. 2d 1123, 1125 (Fla.1995). A law-enforcement officer does not violate the Fourth Amendment simply by approaching someone on the street and asking questions, if the individual is willing to listen. See United States v. Drayton, 536 U.S. 194, 200, 122 S. Ct. 2105, 153 L. Ed. 2d 242 (2002); Golphin, 945 So.2d at 1181. As the officers investigated recent complaints of crime at 718 Day Avenue and approached the SUV at the specific time when Mr. Washington, known by them to be a black male, was expected to be there, Appellant opened the door of the vehicle. Officer Straitt casually introduced himself, stated that he was performing an investigation, asked for Appellant's name, and inquired as to whether Appellant lived at that address. Because a reasonable person would have believed he was free to leave, this episode was nothing more than a consensual police-citizen encounter, which did not trigger constitutional safeguards. See Mendenhall, 446 U.S. at 553-54, 100 S. Ct. 1870; Golphin, 945 So.2d at 1180, 1187-88; Popple, 626 So.2d at 186; State v. Gonzalez, 919 So. 2d 702, 703 (Fla. 5th DCA 2006) (stating that in a consensual police-citizen encounter, an officer can approach an individual in public, ask questions, and request identification without having a founded suspicion of criminal activity).
When Appellant orally stated his name as something other than Mr. Washington, Officer Straitt asked for identification to verify Appellant's identity. The officer testified that he had two reasons for requesting identification: to make sure that the man was not the individual suspected of criminal activity at that location, and to have a name to put in the police investigation report indicating any person(s) to whom the police had spoken. At that point, the episode remained a consensual encounter, not a seizure. See Bostick, 501 U.S. at 437, 111 S. Ct. 2382 (stating than an officer's request to a defendant for identification is not a detention or seizure); Golphin, 945 So.2d at 1180-82 (stating that *252 any police activity that restrains a citizen is a seizure, and such contact can be deemed consensual only if a reasonable person would have felt free to leave); Gonzalez, 919 So.2d at 704.
However, once Appellant (the presumed driver of the SUV) produced the I.D. card rather than a driver's license, a reasonable suspicion arose, justifying a temporary detention to ascertain whether Appellant had a valid driver's license and to run a computer check. See § 901.151(2), Fla. Stat. (2006); Lanier v. State, 936 So. 2d 1158, 1161 (Fla. 2d DCA 2006).
The very similar facts in Lanier support affirmance and warrant close consideration. Officers received information that an individual with outstanding warrants was a passenger in a gray Ford automobile bearing a specific license tag number. While on routine traffic patrol, Officer Shea located the Ford, confirmed that the passenger was the person being sought, and stopped the vehicle. The officer went immediately to the passenger's door, ordered the passenger out of the car, and arrested the passenger on the outstanding warrant. See id. at 1159. After the arrest, but while the investigation relating to the passenger's arrest was ongoing, the officer approached Mr. Lanier, the driver, and asked for identification. When Mr. Lanier produced a Florida I.D. card, Officer Shea took it, ordered Mr. Lanier to remain in the car, and "ran his identification" to assure that his license was good and that he had no outstanding warrants. At that point, the officer had not seen Mr. Lanier commit any traffic infraction; the only reason for stopping the car was to effect the arrest of the passenger on the pre-existing warrant. See id. at 1159-60. As another officer ran Mr. Lanier's identification through the computer, Mr. Lanier exited the vehicle, contrary to Officer Shea's instructions, and shoved his hands into the waistband of his pants, whereupon the officer ordered Mr. Lanier to remove his hands. When Mr. Lanier failed to comply, the officer grabbed him, wrestled him to the ground, and handcuffed him. Although a pat-down of Mr. Lanier revealed no contraband, a subsequent search of the area near the struggle disclosed a baggie containing cocaine. These events resulted in charges of driving without a license, possession of cocaine, and resisting an officer without violence. Like Appellant, Mr. Lanier was on probation when he was arrested, and the DOC filed an affidavit of violation of probation, which Mr. Lanier challenged by moving to suppress the evidence arising from the vehicular stop, which (he argued) resulted in an illegal detention. The trial court revoked Mr. Lanier's probation without considering his motion to suppress. See id. at 1160.
Subsequently, the trial court denied Mr. Lanier's motion to suppress on the grounds that an officer conducting a valid traffic stop can properly request the driver's license of the driver. The Second District Court noted that "[t]he disposition of Lanier's motion to suppress is controlled by whether Shea had the authority to request identification from Lanier, the innocent driver of the Ford, when the sole purpose of the stop of Lanier's vehicle was to effect the passenger's arrest." See id. at 1161. Given the testimony that the investigation relating to the traffic stop had not been completed when Officer Shea asked for Mr. Lanier's identification, and noting the holdings of the United States Supreme Court that during a consensual encounter, an officer may lawfully request and hold the identification long enough to run a warrants check, the Second District Court stated that "a similar request during the course of a lawful stop and detention does not rise to the level of a constitutionally cognizable infringement." See id. It was undisputed that Mr. Lanier's car was *253 lawfully stopped. With a lawful stop and ongoing investigation arising from the reason for the stop, Officer Shea could properly ask for Mr. Lanier's identification. See id. (quoting State v. Baez, 894 So. 2d 115 (Fla.2004)).
Significant to Appellant's case is the Lanier panel's conclusion, citing § 322.15(1), Fla. Stat. (2003), that "when Lanier produced only an identification card rather than a driver's license, reasonable suspicion arose for Shea to believe that Lanier was driving without a proper license." Lanier, 936 So.2d at 1161. Thus, Officer Shea was justified under section 901.151(2), Florida Statutes (2006), in detaining Mr. Lanier while investigating the status of his driver's license. The evidence against Mr. Lanier obtained during the lawful detention was not illegally obtained, and the motion to suppress was correctly denied. See Lanier, 936 So.2d at 1161-62.
In the instant case, Officer Straitt knew that many people with I.D. cards do not have a valid license. As in Lanier, 936 So.2d at 1161, a reasonable suspicion of criminal activity arose when Appellant produced an I.D. card rather than a driver's license. When Officer Straitt asked whether Appellant had a valid license, Appellant answered "no." When asked whether his license was suspended, Appellant answered that it was "badly suspended." When the other officer checked the status of the license, Appellant was found to be a habitual traffic violator. See § 322.264, Fla. Stat. (2006) (defining "habitual traffic offender").
Section 322.15(1), Fla. Stat. (2006), states:
322.15 License to be carried and exhibited on demand; fingerprint to be imprinted upon a citation.
(1) Every licensee shall have his or her driver's license, which must be fully legible with no portion of such license faded, altered, mutilated, or defaced, in his or her immediate possession at all times when operating a motor vehicle and shall display the same upon the demand of a law enforcement officer or an authorized representative of the department.
Appellant failed to comply with the statutory requirement to have and carry a valid driver's license. Officer Straitt testified that because Appellant's "habitual traffic offender" infraction is a felony, the officers could not merely write a traffic citation. Instead, they properly arrested Appellant, read his Miranda rights, and seized the vehicle. See § 322.34(5), Fla. Stat. (2006) (designating a third-degree felony where any person whose driver's license has been revoked under the "habitual offender" provision drives any motor vehicle upon the highways of this state while such license is revoked); § 901.15(1), Fla. Stat. (2006) (authorizing a warrantless arrest where the person has committed a felony in the officer's presence).
Because the initial encounter was consensual and the officers lawfully detained Appellant for further investigation only after a reasonable suspicion of criminal activity arose, the temporary detention and the arrest were lawful, the motion to suppress was correctly denied pursuant to federal and Florida law, and the trial court properly considered the new violation of law in concluding that Appellant substantially and willfully violated two conditions of probation. Accordingly, we AFFIRM the orders revoking probation and sentencing Appellant to concurrent terms of five years' incarceration.
BARFIELD, J., concurs.
BENTON, J., concurs in the judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590382/ | 270 S.W.3d 289 (2008)
In re Axel Michael SIGMAR.
No. 10-08-00328-CV.
Court of Appeals of Texas, Waco.
November 5, 2008.
*294 Robert Galvin, Galvin Dominguez Hindera & Schwab LLP, Austin, for Appellant/Relator.
Barbara W. Hale, Huntsville, for Respondent.
Hal R. Ridley, and William D. Bloodworth, II, Huntsville, for Real Party in Interest.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
OPINION
FELIPE REYNA, Justice.
Axel Michael Sigmar seeks a writ of mandamus compelling Respondent, the Honorable Barbara Hale, Judge of the County Court at Law of Walker County, to set aside temporary orders prohibiting him from (1) having unsupervised access to his child due to a potential risk for international abduction and (2) disposing of assets pending an evidentiary hearing on an equitable bill of review his former wife filed seeking to set aside their divorce decree. We will deny the relief requested.
BACKGROUND
Axel speaks several foreign languages, has a degree from the Massachusetts Institute of Technology, has traveled abroad extensively, and has international business interests in the petroleum industry. He regularly travels to Mexico in pursuit of these business interests. According to his former wife Lucia, Axel encouraged her to seek employment in 2005 because of financial difficulties. She accepted a position on the faculty of Sam Houston State University and moved with their daughter A.J. to Huntsville in the summer of 2006. The Sigmars resided primarily in Huntsville during the academic year but spent the following summer in Lago Vista where they had lived before Lucia accepted the teaching position.
Axel is involved in several lawsuits both in the United States and in Mexico with millions of dollars at stake. He told Lucia in the summer of 2007 that he had received a threat from "a Mexican fellah" which he reported to the FBI and the Department of Justice on advice of counsel. The threat "pertained" to his family. He testified regarding other business-related threats as well, which he told Lucia about because he "tried to keep her informed." Axel took a concealed weapons course that November and purchased weapons and ammunition to supplement the Glock semi-automatic handgun Lucia already had. Lucia testified that during the Thanksgiving holiday he told her that his life was in danger and he provided her a list of people to contact should anything happen to him.
Axel and Lucia filed a "friendly divorce" in December 2007 with Lucia named as the petitioner. Respondent signed a consent decree two months later. The parties were appointed joint managing conservators of A.J. with both being granted identical visitation rights and neither being granted the exclusive right to designate A.J.'s primary residence. Nevertheless, A.J. lived with Lucia, subject to periodic visitation with Axel. The decree awarded Lucia the residence in Huntsville, one automobile, and other miscellaneous personal property. The decree awarded Axel the residence in Lago Vista, their interests in *295 a limited partnership which owned an office building in Lago Vista, three automobiles, interests in numerous business entities, three boats, and other miscellaneous personal property. They agreed at the time not to tell A.J. about the divorce.
Axel spent the night at Lucia's home in early June. The next morning he talked with her about wanting to spend more time with A.J. and about his belief that they should tell A.J. about the divorce. He also told her that he had started a relationship with another woman. He spent the day with Lucia and A.J. before departing that evening for a business trip to Mexico. When he returned to the United States five days later, he stopped at Lucia's home to retrieve a trailer. When he arrived there, he was served with Lucia's application for protective order, petition for bill of review, and temporary ex parte protective order.
Respondent later granted Axel's motion to vacate the ex parte protective order. Lucia filed a motion to modify the divorce decree which included a request for temporary orders and a temporary restraining order.[1] Following a hearing, Respondent granted Lucia's requests. In a document entitled "Findings of Fact and Conclusions of Law,"[2] Respondent appointed Lucia as A.J.'s temporary sole managing conservator and Axel as temporary possessory conservator. Respondent found that there is a threat to A.J. of international abduction by Axel and ordered that Axel not have possession of or access to A.J. without supervision. Finally, Respondent enjoined Axel from selling, alienating, or liquidating any assets until an evidentiary hearing on Lucia's bill of review.
MANDAMUS RELIEF
Mandamus relief is available only to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Bexar County Criminal Dist. Attorney's Office, 224 S.W.3d 182, 185 (Tex. 2007) (orig.proceeding); In re Stearman, 252 S.W.3d 113, 115 (Tex.App.-Waco 2008, orig. proceeding). Because temporary orders in a child custody dispute are not subject to interlocutory appeal, mandamus relief is appropriate if the relator establishes a clear abuse of discretion by the respondent. See In re Derzapf, 219 S.W.3d 327, 335 (Tex.2007) (per curiam) (orig.proceeding); In re Sanchez, 228 S.W.3d 214, 217 (Tex.App.-San Antonio 2007, orig. proceeding). Thus, that portion of Respondent's order prohibiting Axel from having unsupervised access to A.J. due to a potential risk for international abduction is subject to review by mandamus.
However, with regard to the portion of Respondent's order enjoining Axel from disposing of any assets until a hearing on the bill of review, a different result obtains. This portion of Respondent's order is in the nature of a temporary injunction. See In re Tex. Natural Res. Conservation Comm'n, 85 S.W.3d 201, 205 (Tex. 2002) (orig.proceeding) ("A temporary injunction *296 is one which operates until dissolved by an interlocutory order or until the final hearing.") (quoting Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex.1992)). Because an interlocutory order granting a temporary injunction is appealable and because we conclude that any benefits to mandamus review in this case do not outweigh the detriments, we hold that the "injunction portion" of Respondent's order is not reviewable by mandamus because Axel had an adequate remedy by appeal. See In re McKee, 248 S.W.3d 164, 165 (Tex.2007) (per curiam) (orig.proceeding) (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig.proceeding)). Therefore, we deny Axel's petition insofar as it challenges that portion of Respondent's order enjoining him from "further sales, alienation, and liquidation of assets."
ABDUCTION PREVENTION MEASURES
Axel first contends that Respondent abused her discretion by issuing temporary orders which prohibit him from having unsupervised access to A.J. because of a potential risk for international abduction.
Statutes Governing Prevention of International Parental Child Abduction
The Texas Legislature enacted a series of statutes aimed at international parental child abduction in May 2003. See Act of May 28, 2003, 78th Leg., R.S., ch. 612, § 1, 2003 Tex. Gen. Laws 2002, 2002-04 (codified as TEX. FAM.CODE ANN. §§ 153.501.503). Texas was the first state to enact such legislation. See Patricia M. Hoff, "UU" UCAPA: Understanding and Using UCAPA to Prevent Child Abduction, 41 FAM. L.Q. 1, 3 n. 8 (2007). "In August 2003, the National Conference of Commissioners on Uniform State Laws appointed a study committee to explore the feasibility of a uniform law to prevent international child abduction." Id. at 3 n. 11. During this study period, Arkansas, California, Florida and Oregon enacted such laws. Id. at 3 n. 8. The Uniform Child Abuse Prevention Act was formally approved by the Uniform Law Commissioners in 2006. Id. at 1; see also UNIF. CHILD ABUSE PREVENTION ACT §§ 1-13, 9 Part IA U.L.A. 33 (Supp.2008). It has since been adopted by seven states[3] and is under consideration in six others[4] plus the District of Columbia. NAT'L CONFERENCE OF COMM'RS ON UNIF. STATE LAWS, A FEW FACTS ABOUT THE UNIFORM CHILD ABDUCTION PREVENTION ACT, http://www.nccusl.org/Update/uniformact_factsheets/uniformacts-fs-ucapa.asp (last visited Oct. 30, 2008).
According to the pertinent bill analyses, the Texas legislation was based on a study on international abduction conducted by the American Bar Association Center on Children and the Law and funded by the United States Department of Justice, Office of Juvenile Justice and Delinquency Prevention.[5]See HOUSE COMM. ON JUVENILE *297 JUSTICE & FAMILY ISSUES, BILL ANALYSIS, Tex. H.B. 1899, 78th Leg., R.S. (2003); HOUSE RESEARCH ORG., BILL ANALYSIS, Tex. H.B. 1899, 78th Leg., R.S. (2003); see also Janet R. Johnston et al., Early Identification of Risk Factors for Parental Abduction, JUVENILE JUSTICE BULLETIN (Office of Juvenile Justice & Delinquency Prevention, U.S. Dep't of Justice), Mar. 2001, at 1 (describing funding of study by OJJDP).
The ABA study (and subsequent reports and publications) identified a list of factors which are indicative of a risk of abduction. See, e.g., PATRICIA M. HOFF, FAMILY ABDUCTION: PREVENTION AND RESPONSE 7-8 (5th ed., National Center for Missing and Exploited Children 2002); Johnston et al., Early Identification of Risk Factors for Parental Abduction, passim. These risk factors appear prominently in the Texas legislation as well as in the UCAPA. See TEX. FAM.CODE ANN. § 153.502 (Vernon Supp. 2008); UNIF. CHILD ABUSE PREVENTION ACT § 7(a), 9 Part IA U.L.A. at 41-42. Because of these similarities[6] and because the Texas statutes have been addressed in only one published decision, we will refer to materials construing the UCAPA as persuasive authority for construing the Texas statutes.
Section 153.503 of the Family Code permits a trial court to impose an abduction prevention measure such as supervised visitation if the court finds it necessary because "credible evidence" has been presented which indicates a "potential risk" of international abduction.[7]See TEX. FAM. CODE ANN. §§ 153.501(a), 153.503(2) (Vernon Supp. 2008); cf. UNIF. CHILD ABUSE PREVENTION ACT § 4(a), 9 Part IA U.L.A. at 38 (requiring finding "that the evidence establishes a credible risk of abduction").
Section 153.501(b) provides four factors a court "shall consider" in determining whether to impose abduction prevention measures:
(1) the public policies of this state described by Section 153.001(a) and the consideration of the best interest of the child under Section 153.002;
(2) the risk of international abduction of the child by a parent of the child based on the court's evaluation of the risk factors described by Section 153.502;
(3) any obstacles to locating, recovering, and returning the child if the child is abducted to a foreign country; and
(4) the potential physical or psychological harm to the child if the child is abducted to a foreign country.
TEX. FAM.CODE ANN. § 153.501(b) (Vernon Supp. 2008); see Boyo v. Boyo, 196 S.W.3d 409, 423 (Tex.App.-Beaumont 2006, no pet.).
Standard of Review
We review a court's decision to impose "abduction prevention measures," which are based on a finding that there is a potential risk of international abduction, under an abuse-of-discretion standard. See Karenev v. Kareneva, No. 02-06-00269-CV, 2008 WL 755285, at *1 n. 5 (Tex.App.-Fort Worth Mar. 20, 2008, no *298 pet.) (mem.op.); Boyo, 196 S.W.3d at 424. We do not conduct an independent review of findings of fact in such a case under traditional legal and factual sufficiency standards. In re Z.A.T., 193 S.W.3d 197, 203 (Tex.App.-Waco 2006, pet. denied); accord In re Keller, 233 S.W.3d 454, 459 (Tex.App.-Waco 2007, pet. denied) (guardianship proceeding). Rather, legal and factual sufficiency are factors which can be considered in determining whether an abuse of discretion has occurred. Id.
We view the evidence in the light most favorable to Respondent's decision. Keller, 233 S.W.3d at 459; Paradigm Oil, Inc. v. Retamco Operating, Inc., 161 S.W.3d 531, 536 (Tex.App.-San Antonio 2004, pet. denied). An abuse of discretion does not occur when the decision is based on conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978); Keller, 233 S.W.3d at 459; Smith v. McCarthy, 195 S.W.3d 301, 305 (Tex.App.-Fort Worth 2006, pet. denied). Conversely, an abuse of discretion does occur when a court acts "without reference to any guiding rules and principles" or in an arbitrary and unreasonable manner. City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex.2003) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)); In re J.D.M., 221 S.W.3d 740, 742 (Tex.App.-Waco 2007, no pet.).
Potential Risk of Abduction
Section 153.502 provides statutory "abduction risk factors" for a court to consider in determining whether there is a potential risk of international abduction. See TEX. FAM.CODE ANN. § 153.502 (Vernon Supp. 2008). Subsection (a) provides a list of six preliminary factors the court "shall consider," including whether the parent: (1) "has taken, enticed away, kept, withheld, or concealed" the child; (2) has threatened to do so; (3) "lacks financial reason to stay in the United States"; (4) "has recently engaged in planning activities that could facilitate the removal of the child from the United States"; (5) "has a history of domestic violence"; or (6) "has a criminal history or a history of violating court orders." Id. § 153.502(a); see Karenev, 2008 WL 755285, at *2.
If upon consideration of the factors in subsection (a) the court finds "credible evidence of a risk of abduction," "the court shall also consider":
(1) whether the parent has strong familial, emotional, or cultural ties to another country, particularly a country that is not a signatory to or compliant with the Hague Convention on the Civil Aspects of International Child Abduction; and
(2) whether the parent lacks strong ties to the United States, regardless of whether the parent is a citizen or permanent resident of the United States.
TEX. FAM.CODE ANN. § 153.502(b); see Karenev, 2008 WL 755285, at *2; Boyo, 196 S.W.3d at 423.
In addition, if the court finds "credible evidence of a risk of abduction" under subsection (a), "the court may also consider": (1) "whether the parent is undergoing a change in status with the United States Immigration and Naturalization Service that would adversely affect that parent's ability to legally remain in the United States"; (2) whether INS has denied the parent's application for citizenship; (3) whether the parent has forged or presented misleading or false evidence to obtain a visa, passport, or other identification card or has made any misrepresentation to the federal government; or (4) whether the foreign country to which the parent has ties presents legal or practical obstacles to the recovery and return of a child who is abducted to that country or poses a risk of *299 harm to the child.[8] TEX. FAM.CODE ANN. § 153.502(c); see Boyo, 196 S.W.3d at 424.
Unlike the dichotomy of risk factors provided in section 153.502, section 7 of the UCAPA lists thirteen risk factors without assigning greater weight to one over another. See UNIF. CHILD ABUSE PREVENTION ACT § 7(a), 9 Part IA U.L.A. at 41-42. Most of the factors listed in section 7 of the UCAPA are substantially similar to the factors listed in section 153.502.
Respondent's Findings
Here, Respondent found under subsection (a)(4) that Axel "has recently engaged in planning activities that could facilitate [A.J.'s] removal" by liquidating assets. Under subsection (b)(1), Respondent found that Axel has strong ties[9] to Austria and Mexico.[10] Respondent found under subsection (c) that: "Austria and/or Mexico":
(1) present obstacles to the recovery and return of an abducted child;
(2) have no legal mechanisms for the immediate and effective enforcement of a child custody order;
(3) have local laws or practices that would:
(a) enable Axel to prevent Lucia from contacting A.J. without due cause;
(b) restrict Lucia from freely traveling to or exiting from the country because of gender, nationality, or religion; and
(c) restrict A.J.'s ability to legally leave the country when she reaches the age of majority because of gender, nationality, or religion;
Respondent further found that Mexico in particular: (1) is a country for which the State Department has issued a travel warning to U.S. citizens; and (2) poses a risk to A.J.'s physical health and safety because of her specific circumstances and because of "human rights violations committed against children, including child labor and lack of child abuse laws." Id. § 153.502(c)(4)(A), (B), (C), (E), (J).
Analysis
Sigmar first complains that Respondent heard evidence which would support an affirmative finding on only one of the six preliminary factors listed in subsection (a) for determining whether there is a risk of international abduction and disregarded evidence which negates an affirmative finding on the other five factors. It is not clear whether Sigmar believes there must be evidence supporting affirmative findings on all six preliminary factors or a majority of them or some other quantum. Nevertheless, our review of the pertinent statutory language leads us to the conclusion that an affirmative finding on only one of these preliminary factors (if supported by the evidence) is all that is required to proceed to a consideration of the additional factors listed in subsections (b) and (c).
To begin with, the statute states that "the court shall consider evidence" relevant *300 to the six factors. Id. § 153.502(a) (emphasis added). The statute does not specify the number of factors on which a court must make an affirmative finding. See, e.g., Boyo, 196 S.W.3d at 423 (record contained evidence to support affirmative findings on two of the six preliminary factors). In addition, the statute lists these factors in the disjunctive.
The comment to section 7 of the UCAPA suggests that no particular quantum of risk factors is required.
The more of these factors that are present, the more likely the chance of an abduction. However, the mere presence of one or more of these factors does not mean that an abduction will occur just as the absence of these factors does not guarantee that no abduction will occur.
UNIF. CHILD ABUSE PREVENTION ACT § 7 cmt., 9 Part IA U.L.A. at 42.
For these reasons, we hold that evidence sufficient to support an affirmative finding on only one of the six preliminary factors may constitute "credible evidence of a risk of abduction" sufficient for a court to consider the additional factors listed in subsections (b) and (c).
Here, Respondent found that Axel had "recently engaged in planning activities that could facilitate [A.J.'s] removal" by liquidating unspecified assets. See TEX. FAM.CODE ANN. § 153.502(a)(4)(E). In this regard, the evidence reflects that Axel sold an office building in Austin for $453,000 in April 2008. He testified that he had to sell the building to pay a $150,000 retainer to a Washington D.C. law firm, but he offered no documentary evidence to support this testimony, and he did not account for the remaining $283,000 in proceeds other than to say it would be applied to attorney's fees (again, without supporting documentation).[11]
Lucia suggests that Respondent may have also found that there was a risk of abduction under subsection (a) because the evidence supports a finding that Axel is unemployed and that he insisted on the renewal of A.J.'s passport. See TEX. FAM. CODE ANN. § 153.502(a)(3), (4)(G). However, Respondent did not include either of these risk factors within her findings of fact, and we will not deem findings on either factor. See Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 252 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (if ground of recovery is entirely omitted from findings, "the omission is deemed to be deliberate").
Viewed in the light most favorable to the decision, the evidence that Axel had "recently engaged in planning activities that could facilitate [A.J.'s] removal" by liquidating the office building could be considered "credible evidence of a risk of abduction." See TEX. FAM.CODE ANN. § 153.502(a)(4)(E), (b). Therefore, Respondent *301 was then required[12] to consider whether Axel "has strong familial, emotional, or cultural ties to another country" or lacked strong ties to the United States. Id. § 153.502(b); see Karenev, 2008 WL 755285, at *2; Boyo, 196 S.W.3d at 423.
In connection with the factors listed in subsection (b), the comment to section 7 of the UCAPA states, "Courts should consider evidence that the respondent was raised in another country and has family support there, has a legal right to work in a foreign country, and has the ability to speak that foreign language." UNIF. CHILD ABUSE PREVENTION ACT § 7 cmt., 9 Part IA U.L.A. at 42. The UCAPA does vary from the Texas statute by referring to "strong familial, financial, emotional, or cultural ties," while subsection (b) of the Texas statute likewise refers to "strong familial, emotional, or cultural ties" but omits any reference to "financial ties." Compare UNIF. CHILD ABUSE PREVENTION ACT § 7(a)(6), (7), 9 Part IA U.L.A. at 41 with TEX. FAM.CODE ANN. § 153.502(b). Instead, it appears that the Texas statute includes such financial considerations as one of the initial factors under subsection (a). See TEX. FAM.CODE ANN. § 153.502(a)(3).[13] Thus, we modify the approach set out in the UCAPA comment by focusing on "evidence that the respondent was raised in another country and has family support there, ... and has the ability to speak that foreign language." See UNIF. CHILD ABUSE PREVENTION ACT § 7 cmt., 9 Part IA U.L.A. at 42.
In this regard, Lucia testified Axel has cousins in Austria.[14] The record is replete with references to Axel's frequent trips to Mexico. He speaks several foreign languages including Spanish and German. Viewed in the light most favorable to the decision, this evidence supports Respondent's finding that Axel "has strong familial, emotional, or cultural ties to another country." See TEX. FAM.CODE ANN. § 153.502(b)(1).
And because Respondent found "credible evidence of a risk of abduction" under the subsection (a) factors, she could also consider evidence relevant to the factors listed under subsection (c). Id. § 153.502(c); see Boyo, 196 S.W.3d at 424.
Respondent's order includes affirmative findings under subdivisions (4)(A), (B), (C), (E), and (J) of subsection (c). The only evidence offered to support these findings is Lucia's generalized testimony that she would be "just out of luck" if Axel took A.J. to a foreign country and, if she liquidated her assets, she "may or may not be able to recover [her] child."
Nonetheless, the majority of the affirmative findings under subsection (c) appear to be matters of legislative fact of which Respondent could take judicial notice sua sponte.[15] Rule of Evidence 201 *302 "governs only judicial notice of adjudicative facts." TEX.R. EVID. 201(a). As Professor Wellborn has explained, matters of legislative fact or of other non-adjudicative fact are subject to judicial notice but are not governed by Rule 201. See 1 STEVEN GOODE ET AL., GUIDE TO THE TEXAS RULES OF EVIDENCE § 201.1 (3d ed.2002); see also In re Graves, 217 S.W.3d 744, 750 (Tex.App.-Waco 2007, orig. proceeding). "Legislative facts ... are not normally the objects of evidentiary proof. As to them, judicial notice instead of record evidence is the rule rather than the exception, and indisputability is not required to justify judicial notice." Graves, 217 S.W.3d at 750 (quoting GOODE § 201.2).
Evidence regarding the legal practices and procedures of a foreign country are legislative facts. See Rodriguez v. State, 90 S.W.3d 340, 360 (Tex.App.-El Paso 2001, pet. ref'd) ("The ability or inability to subpoena witnesses or documents from Mexico is a legislative fact regarding the content of law and policy."); see also GOODE § 203.1 ("international law is subject to judicial notice as a matter of common law") (citing Skiriotes v. Florida, 313 U.S. 69, 73, 61 S. Ct. 924, 927, 85 L. Ed. 1193 (1941)). But cf. TEX.R. EVID. 203 (providing method for party to have court take judicial notice of laws of foreign nation). Accordingly, we hold that facts regarding another country's compliance with the Hague Convention on the Civil Aspects of International Child Abduction, or whether that country poses obstacles to the prompt return of a child taken there or poses risks to the child's safety are legislative facts about which a trial or appellate court may take judicial notice without prompting by the parties.[16]See GOODE § 201.2 (with regard to judicial notice of legislative facts, a court "may employ whatever facts [it] reasonably believe[s], without any requirements of indisputability or of opportunity of parties to be heard concerning such beliefs"); see also Dutton v. Dutton, 18 S.W.3d 849, 856 (Tex.App.-Eastland 2000, pet. denied) ("This court may take judicial notice, even if no one requested the trial court to do so and even if the trial court did not announce that it would do so."); cf. Trujillo v. State, 809 S.W.2d 593, 595-96 (Tex.App.-San Antonio 1991, no pet.) (trial court "could have easily rejected any inadmissible testimony by the school teacher and taken judicial notice that Edgewood High School is an accredited school by the state education agency").
Respondent found that "Austria and/or Mexico":
(1) have no legal mechanisms for the immediate and effective enforcement of a child custody order;
(2) have local laws or practices that would:
(a) enable Axel to prevent Lucia from contacting A.J. without due cause;
(b) restrict Lucia from freely traveling to or exiting from the country because of gender, nationality, or religion; and
(c) restrict A.J.'s ability to legally leave the country when she reaches the age of majority because of gender, nationality, or religion;
Respondent further found that Mexico in particular: (1) is a country for which the *303 State Department has issued a travel warning to U.S. citizens; and (2) poses a risk to A.J.'s physical health and safety because of her specific circumstances and because of "human rights violations committed against children, including child labor and lack of child abuse laws." Although Respondent's initial findings in this regard focused on "Austria and/or Mexico," we will limit our focus to Mexico in view of the more specific findings she made.
The website for the State Department provides helpful resources regarding international travel and the pertinent practices and procedures of other nations.[17]See UNIF. CHILD ABUSE PREVENTION ACT § 7 cmt., 9 Part IA U.L.A. at 42. According to information about Mexico in the International Parental Child Abduction section of the website, Mexico is a signatory to the Hague Convention but "[t]ime delays can be a problem in Hague Convention cases in Mexico." U.S. DEP'T OF STATE, INTERNATIONAL PARENTAL CHILD ABDUCTION: MEXICO, http://travel.state.gov/family/abduction/ country/country_508.html (last visited Oct. 30, 2008). The State Department also reports that Hague Convention decisions can be appealed by direct appeal or by a separate proceeding called an amparo. "Several cases have been delayed for years while amparos and appeals of decisions have blocked the case." Id.
Under the international travel information section of the State Department's website, additional "country specific information" is provided. U.S. DEP'T OF STATE, COUNTRY SPECIFIC INFORMATION: MEXICO, http://travel.state.gov/travel/cis_pa_tw/cis/ cis_970.html (2008). This internet document provides the following information relevant to the issues in this case:
"Sporadic outbursts of politically motivated violence occur from time to time in certain areas of the country, particularly in the southern states of Chiapas, Guerrero and Oaxaca."
In the State of Chiapas,[18] "Armed rebels and armed civilian groups are present in some areas of the state, and there is often no effective law enforcement or police protection. Violent criminal gang activity along the state's southern bordermostly aimed at illegal migrantscontinues to be a concern."
"Crime in Mexico continues at high levels, and it is often violent"
"Women traveling alone are especially vulnerable"
Kidnapping "continues at alarming rates"
"Some border cities have seen an increase in violence over the past year, some of which has been directed against U.S. citizens."
"Mexican authorities have failed to prosecute numerous crimes committed against U.S. citizens"
"Mexico is not in full compliance with the [Hague] Convention."
Id.
The State Department has also issued a travel alert regarding Mexico which contains similar information about violent crime and kidnappings in Mexico and warning of particular dangers to U.S. citizens. See U.S. DEP'T OF STATE, TRAVEL ALERT: MEXICO, http://travel.state.gov/ travel/cis_pa_tw/pa/pa_3028.html (2008).
*304 Finally, the State Department has reported that "Mexico is a source, transit and destination country of women and children trafficked for the purpose of sexual exploitation." U.S. DEP'T OF STATE, VICTIMS OF TRAFFICKING AND VIOLENCE PROTECTION ACT 2000: TRAFFICKING IN PERSONS REPORT 75 (2002), http://www.state.gov/documents/ organization/10815.pdf.
Viewing this information in the light most favorable to the decision, this information supports Respondent's findings under subsection (c) concerning the obstacles and risks which may be posed if Axel were to abduct A.J. to Mexico. See TEX. FAM. CODE ANN. § 153.502(c)(4)(A), (B), (C), (E), (J).
Summary
Viewed in the light most favorable to Respondent's decision, the evidence and the information of which we have taken judicial notice supports Respondent's finding of a potential risk of international abduction. See Karenev, 2008 WL 755285, at *2-3; Boyo, 196 S.W.3d at 423-24.
Best Interest of the Child
When deciding whether to impose abduction prevention measures, a court is also required to consider the best interest of the child. TEX. FAM.CODE ANN. § 153.501(b)(1); see also id. § 153.002 (Vernon 2002). Here, Respondent found that "it is not in the child's best interest [for Axel] to have unsupervised possession and access to the child."
The primary factors to consider when evaluating whether abduction prevention measures are in the best interest of the child are the familiar Holley factors, which include:
(1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 372 (Tex.1976); In re T.N.F., 205 S.W.3d 625, 632 (Tex.App.-Waco 2006, pet. denied). These factors are not exhaustive and need not all be proved as a condition precedent to imposition of such measures. See In re C.H., 89 S.W.3d 17, 27 (Tex.2002); T.N.F., 205 S.W.3d at 632.
Emotional and Physical Danger to Child
We have already discussed the evidence regarding the potential danger posed if A.J. were abducted to Mexico. In addition, Lucia testified that Axel told her on several occasions that he was concerned about threats to the safety of Lucia and A.J. This concern was expressly referenced in their divorce petition. Only a few months before the hearing, he showed Lucia the additional collection of weapons he had added to his arsenal for protection. Lucia testified that threats to the three of them were "a constant topic of conversation." Axel conceded that there were some threats to his own safety but opined that Lucia's view of the threats to herself or A.J. were exaggerated. Because Respondent could (and did) assess the credibility of the witnesses, it was within her discretion to conclude that the threat of danger to A.J. justified the imposition of abduction prevention measures.
*305 Stability of Home
Lucia testified and Axel did not dispute that he rarely spends any extended time with A.J. His business requires him to travel frequently. Lucia on the other hand has borne primary responsibility for A.J.'s nurture and care. Thus, the evidence relating to this factor supports the imposition of abduction prevention measures.
Acts and Omissions
The evidence concerning the parties' acts and omissions relative to A.J. is similar to the evidence concerning the stability of their respective homes. In addition, Lucia presented evidence to suggest that Axel has acted with deception in seeking a divorce. Finally, she presented evidence that he recently urged the renewal of A.J.'s passport and pressed for the inclusion in the divorce decree of a provision granting him the "[r]ight to accompany all of [A.J.'s] domestic and world-wide travel."[19] Therefore, the evidence relating to this factor supports the imposition of abduction prevention measures.
Excuses for Acts and Omissions
Axel presented evidence (which Lucia does not dispute) that the demands of his business interests are the primary reason he is unable to spend more time with A.J. However, it was within Respondent's discretion to determine whether this is a reasonable excuse, particularly in light of the emphasis on what is in A.J.'s best interest. Thus, the evidence relating to this factor neither supports nor contradicts the imposition of abduction prevention measures.
Summary
The record contains no evidence pertinent to the other factors.[20] But viewed in the light most favorable to the decision, the evidence concerning the four factors we have addressed supports Respondent's decision to impose abduction prevention measures.
Public Policy
A court must also consider "the public policies of this state described by Section 153.001(a)." TEX. FAM.CODE ANN. § 153.501(b)(1). Section 153.001(a) provides:
The public policy of this state is to:
(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
(2) provide a safe, stable, and nonviolent environment for the child; and
(3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.
Id. § 153.001(a) (Vernon 2002).
Although these policies must be considered, they are only one of the factors enumerated for consideration in determining whether to impose abduction prevention measures. See id. *306 § 153.501(b). Therefore, "slavish adherence" to these policies may not be warranted when the other factors dictate that abduction prevention measures are necessary. See Echols v. Olivarez, 85 S.W.3d 475, 480 (Tex.App.-Austin 2002, no pet.) ("in the context of relocation cases, slavish adherence to such policy [of frequent and continuous contact] ignores the realities of a family that has been dissolved").
From the language of the statute itself, this state's public policy is to assure "frequent and continuing contact" between children and "parents who have shown the ability to act in the best interest of the child." TEX. FAM.CODE ANN. § 153.001(a)(1); In re R.D.Y., 51 S.W.3d 314, 323 (Tex.App.-Houston [1st Dist.] 2001, pet. denied).
Viewed in the light most favorable to the decision, the evidence supports a conclusion that Axel has not shown the ability to act in A.J.'s best interest. Cf. In re M.J., 227 S.W.3d 786, 793 (Tex.App.-Dallas 2006, no pet.) (father's relocation of children to Bangladesh in violation of divorce decree and fact that remaining in Bangladesh may endanger children supported finding that appointment of mother as sole managing conservator was in the children's best interest and did not violate public policy).
Nonetheless, Axel cites Thompson v. Thompson, 827 S.W.2d 563, 569 (Tex.App.-Corpus Christi 1992, writ denied), for the proposition that his right to periodic visitation should not be denied "except in an extreme case of parental unfitness." We agree that any unusual restrictions on parental access to a child must be justified by clear and convincing evidence under the law, but the nature of the laws governing the parent-child relationship has changed dramatically in the last fifteen years. Cf. Echols, 85 S.W.3d at 480.
The requirement of "parental unfitness" is still repeated in more recent cases involving termination of parental rights or cases in which a nonparent is seeking appointment as conservator of a child over a parent. See, e.g., In re B.L.D., 113 S.W.3d 340, 353 (Tex.2003); In re S.W.H., 72 S.W.3d 772, 778 (Tex.App.-Fort Worth 2002, no pet.). Here, however, Lucia is not seeking to eliminate Axel's access to A.J. Instead, she is seeking restrictions consonant with A.J.'s best interest.
The statutes governing international parental abduction specify the showing which must be made to obtain abduction prevention measures in a suit affecting the parent-child relationship. And public policy considerations are a part of that analysis. See TEX. FAM.CODE ANN. § 153.501(b)(1). However, even the constitutional rights of a parent must sometimes bow to the best interest of the child or other statutory considerations. See, e.g., In re C.R.O., 96 S.W.3d 442, 452 (Tex.App.-Amarillo 2002, pet. denied) (domicile restriction was consistent with public policy because it encouraged father's continuing contact with children and did not infringe on mother's constitutional right to travel).
Regarding the other two public policy considerations, the evidence shows that Lucia is presently better able to provide A.J. with "a safe, stable, and nonviolent environment." See TEX. FAM.CODE ANN. § 153.001(a)(2). And Respondent appears to be encouraging Axel and Lucia to "share in the rights and duties of raising" A.J. by allowing Axel to have visitation rights, albeit with restrictions. Id. § 153.001(a)(3); see Lenz v. Lenz, 79 S.W.3d 10, 18 (Tex.2002) (because father had ability to visit children in Germany, custody order allowing mother to relocate to Germany would allow father and mother *307 "to continue sharing the rights and duties of raising their two children").
Accordingly, we find that Respondent's order is consistent with the public policy of this state as expressed in section 153.001.
Other Considerations
In addition, section 153.501(b) requires a court to consider: (1) obstacles to the return of the child if abducted and (2) potential harm to the child if abducted. TEX. FAM.CODE ANN. § 153.501(b)(3), (4). We have already addressed the evidence relevant to these issues and have concluded that such evidence supports the imposition of abduction prevention measures.
Least Restrictive Means
Axel also argues that, even assuming some abduction prevention measure is warranted, Respondent abused her discretion by failing to consider the least restrictive means available. The comment to section 8 of the UCAPA encourages courts to employ the least restrictive means.
"Ideally the court will choose the least restrictive measures and conditions to maximize opportunities for continued parental contact while minimizing the opportunities for abduction." UNIF. CHILD ABUSE PREVENTION ACT § 8 cmt., 9 Part IA U.L.A. at 44.
We agree in principle that a court should employ the least restrictive means available to prevent abduction so that parental rights are not unreasonably restricted. However, section 153.503 is written more broadly than section 8 of the UCAPA and thus vests a trial court with broad discretion in determining which preventive measures to impose. Compare TEX. FAM.CODE ANN. § 153.503 ("the court may take any of the following actions") (emphasis added) with UNIF. CHILD ABUSE PREVENTION ACT § 8(c), 9 Part IA U.L.A. at 43 ("[a]n abduction prevention order may include one or more of the following").
As the comment to section 8 of the UCAPA notes, "The most common, and one of the most effective, restrictions is supervised visitation. Visitation should remain supervised until the court decides the threat of abduction has passed." UNIF. CHILD ABUSE PREVENTION ACT § 8 cmt., 9 Part IA U.L.A. at 45.
Accordingly, we cannot say that Respondent abused her discretion by ordering supervised visitation as an abduction prevention measure under section 153.503.
Summary
Viewed in the light most favorable to Respondent's findings, the evidence and information before us support findings that: (1) Axel poses a potential risk of international abduction; (2) there are obstacles to locating, recovering and returning A.J. to the United States were she abducted to Mexico; (3) there is a potential for harm to A.J. were she abducted to Mexico; and (4) it is in A.J.'s best interest to impose an abduction prevention measure. In addition, we hold that Respondent's order is consistent with "the public policies of this state described by Section 153.001(a)." Accordingly, Respondent did not abuse her discretion by requiring supervised visitation.
REMOVAL OF RESPONDENT
Axel asks this Court to replace Respondent with another judge because she stated in her findings that she found him "to be `not credible' and `evasive'" and she "cannot rely on [him] to tell the truth."
A trial judge may be removed from presiding over a particular case for one of three reasons: (1) disqualification under article V, section 11 of the Texas Constitution; (2) disqualification under section *308 74.053 of the Government Code (applicable to assigned judges); or (3) recusal under the procedural rules for civil trials and appeals. See In re Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex.1998) (orig.proceeding); Spigener v. Wallis, 80 S.W.3d 174, 179 (Tex.App.-Waco 2002, no pet.). Here, Axel's complaint presents a potential ground for recusal under Rule of Civil Procedure 18b. See TEX.R. CIV. P. 18b(2)(b).
Rule 18a provides the procedures for pursuing recusal of a trial judge. Id. 18a. Insofar as we are aware, Axel has not filed a motion to recuse Respondent. If he has, Rule 18a(f) prescribes the appellate remedy. "If the motion is denied, it may be reviewed for abuse of discretion on appeal from the final judgment. If the motion is granted, the order shall not be reviewable, and the presiding judge shall assign another judge to sit in the case." Id. 18a(f).
Because Axel has an adequate legal remedy, he is not entitled to mandamus relief in connection with his efforts to have Respondent removed from the case. See Union Pac. Res. Co., 969 S.W.2d at 428-29.
CONCLUSION
Respondent did not abuse her discretion by requiring supervised visitation. Because Axel could pursue an interlocutory appeal from Respondent's temporary injunction prohibiting him from disposing of any assets until a hearing on the bill of review, the injunction may not be challenged by mandamus. Nor is mandamus review available in connection with Axel's efforts to have Respondent removed from the case.
Accordingly, we deny Axel's petition for writ of mandamus.
(Chief Justice GRAY concurring with note).[*]
NOTES
[1] Lucia also filed a separate application for a temporary restraining order, temporary injunction, and temporary orders contemporaneously with the motion to modify.
[2] The parties treat this document as Respondent's order, and we do likewise. Rule of Civil Procedure 299a provides that a court's findings "shall not be recited" in the court's order or judgment. TEX.R. CIV. P. 299a. Nevertheless, findings of fact recited in an order or judgment will be accorded probative value so long as they are not in conflict with findings recited in a separate document. In re U.P., 105 S.W.3d 222, 229 n. 3 (Tex.App.-Houston [14th Dist.] 2003, pet. denied); Hill v. Hill, 971 S.W.2d 153, 157 (Tex.App.-Amarillo 1998, no pet.).
[3] Colorado, Kansas, Louisiana, Nebraska, Nevada, South Dakota and Utah. NAT'L CONFERENCE OF COMM'RS ON UNIF. STATE LAWS, A FEW FACTS ABOUT THE UNIFORM CHILD ABDUCTION PREVENTION ACT, http://www.nccusl.org/Update /uniformact_factsheets/uniformacts-fs-ucapa.asp (last visited Oct. 30, 2008).
[4] Idaho, Michigan, New Hampshire, New Mexico, Pennsylvania and South Carolina. Id.
[5] The final report from that study was published by the OJJDP in 1998. JANET R. JOHNSTON ET AL., PREVENTION OF FAMILY ABDUCTION THROUGH EARLY IDENTIFICATION OF RISK FACTORS (Office of Juvenile Justice & Delinquency Prevention, U.S. Dep't of Justice 1998); see also Janet R. Johnston et al., Early Identification of Risk Factors for Parental Abduction, JUVENILE JUSTICE BULLETIN (Office of Juvenile Justice & Delinquency Prevention, U.S. Dep't of Justice), Mar. 2001, at 1 n. 2. A copy of this report (NCJ 182791) can be obtained from the National Criminal Justice Reference Service. See NAT'L CRIMINAL JUSTICE REFERENCE SERV., NCJRS ABSTRACT: NCJ 182791, http://www. ncjrs.gov/App/Publications/abstract.aspx?ID= 182791 (last visited Oct. 30, 2008).
[6] While these statutes are similar in many ways, we note that the UCAPA differs from the Texas statutes insofar as the UCAPA seeks to deter both "domestic and international child abductions." UNIF. CHILD ABUSE PREVENTION ACT prefatory note, 9 Part IA U.L.A. 33 (Supp.2008).
[7] Supervised visitation is one of eight specific "abduction prevention measures" provided by section 153.503. See TEX. FAM.CODE ANN. § 153.503(2) (Vernon Supp. 2008).
[8] The statute provides a list of ten factors to consider in deciding whether the foreign country presents obstacles to the recovery and return of a child who is abducted or poses a risk of harm to that child. Id. § 153.502(c)(4) (Vernon Supp. 2008).
[9] Actually, Respondent found that Axel has "strong ties" to "another country" and then made a separate finding immediately thereafter that he "has ties to Austria and Mexico." We construe these findings together as a finding that he has "strong ties" to Austria and Mexico.
[10] Although subsection (b)(1) requires a court to consider whether the parent has strong ties to any foreign country, the subsection draws particular attention to countries which are not signatories to the Hague Convention on the Civil Aspects of International Child Abduction. Id. § 153.502(b)(1) (Vernon Supp. 2008). Both Austria and Mexico are signatories to the Hague Convention.
[11] Axel references some of Respondent's findings which he contends are indicative of Respondent shifting the burden of proof to him even though Lucia as movant had the burden of proof in the hearing. Here, where we note Axel's failure to offer evidence, we observe that Lucia made a prima facie showing in this regard by showing that he had liquidated a substantial asset. See TEX. FAM.CODE ANN. § 153.502(a)(4)(E) (Vernon Supp. 2008). When she made this showing, it then became incumbent upon Axel to produce evidence that the proceeds "could [not] facilitate the removal of the child from the United States." Id.; see Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 352 (Tex. 1996) (orig.proceeding) ("To overcome a prima facie showing, an opposing party must offer evidence to rebut what has been established."); see also BLACK'S LAW DICTIONARY 1228 (8th ed. 2004) (defining "prima facie" as "[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted").
[12] According to subsection (b), if the court finds "credible evidence of a risk of abduction" under subsection (a), then "the court shall also consider evidence" regarding the two factors listed in subsection (b). TEX. FAM. CODE ANN. § 153.502(b) (emphasis added). Use of the term "shall" "imposes a duty" on the court to consider such evidence. See TEX. GOV'T CODE ANN. § 311.016(2) (Vernon 2005).
[13] Subsection (a)(3) directs the court to consider evidence that the parent "lacks financial reason to stay in the United States, including evidence that the parent is financially independent, is able to work outside of the United States, or is unemployed." TEX. FAM.CODE ANN. § 153.502(a)(3) (Vernon Supp. 2008).
[14] Lucia contends in her mandamus response that Axel "is a naturalized citizen" and by inference was born in Austria, but there is no evidence in the record to support this assertion.
[15] There is a twenty-three day gap between the date of the hearing and the date Respondent signed the order. It is entirely plausible that Respondent conducted additional research sua sponte to find relevant information regarding Austria and Mexico. Assuming she did, it would have been helpful to the parties for her to advise them of the sources she relied on to make her findings.
[16] Nevertheless, the parties in such proceedings should be encouraged to offer evidence relevant to the practices and procedures of other nations. Cf. TEX.R. EVID. 203 (procedure for requesting court to take judicial notice of laws of a foreign nation).
[17] See U.S. DEP'T OF STATE, WELCOME TO TRAVEL. STATE.GOV, http://travel.state.gov/ (last visited Oct. 30, 2008).
[18] The record contains no evidence of the particular areas in Mexico where Axel travels when there.
[19] This is not among the rights enumerated in the Family Code for parents, managing conservators, or possessory conservators. See TEX. FAM.CODE ANN. §§ 153.073, 153.074, 153.132 (Vernon Supp. 2008), § 153.192 (Vernon 2002).
[20] These other factors are: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the parental abilities of the individuals seeking custody; (4) the programs available to assist these individuals to promote the best interest of the child; and (5) the plans for the child by these individuals or by the agency seeking custody. See Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); In re T.N.F., 205 S.W.3d 625, 632 (Tex.App.-Waco 2006, pet. denied).
[*] (Chief Justice Gray would deny the petition without an opinion. When reviewing an interim action by a trial court, it is not a particularly good time to explore and discuss a relatively new area of the law. This is true primarily because the nature of the proceeding leaves the record less than fully developed. Further, he joins no part of the opinion and expressly disagrees with the discussions of the standard of review and taking judicial notice of the laws of another country and a tour of the State Department's web page on Mexico. A separate opinion will not issue.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4558367/ | Fourth Court of Appeals
San Antonio, Texas
August 21, 2020
No. 04-20-00257-CR
The STATE of Texas,
Appellant
v.
Chase Ray COLEMAN,
Appellee
From the County Court, Kinney County, Texas
Trial Court No. 10239CR
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/2304463/ | 76 F.Supp. 133 (1948)
AMERICAN FACTORS, LIMITED,
v.
KANNE.
ALEXANDER & BALDWIN, LIMITED,
v.
SAME.
Civ. Nos. 419, 474.
District Court for the Territory of Hawaii.
March 18, 1948.
Smith, Wild, Beebe & Cades, of Honolulu, Hawaii, for American Factors, Limited.
Vitousek, Pratt & Winn, of Honolulu, Hawaii, for Alexander & Baldwin, Limited.
Ray J. O'Brien, U. S. Atty., of Honolulu, Hawaii, and Leland T. Atherton Sp. Asst. to Atty. Gen., for defendant.
METZGER, District Judge.
These two cases for the recovery of income taxes paid to the United States Internal Revenue Collector, were both tried in the same hearing.
The claim of American Factors, Limited was for recovery of taxes paid on sums deducted as exemptions from its 1932 gross income tax return, which exemptions were denied by the Collector, as follows:
(1) In 1924 the corporation, together with 23 of its stockholders, was sued by J. C. Isenberg et al., for $10,000,000 damages, alleging fraud in connection with the transfer *134 of the property of Hackfeld & Company, Limited by the Alien Property Custodian to the taxpayer, a newly formed corporation.
Twenty-two of the stockholders who were jointly sued with the taxpayer entered into an agreement among themselves to pay pro rata, on the basis of the stock for which they severally originally subscribed, the litigation costs of this suit. The taxpayer advanced from time to time such costs and expenses as they accrued and rendered accounts to this group of defendant stockholders. This litigation ran for several years and its total cost was $568,607.76. Of this sum, the twenty-two contributing stockholding defendants paid in to the company the sum of $396,812.50. There were 615 other original stockholders who were not made defendants who paid nothing into the litigation fund.
When the litigation came to an end in 1932 the taxpayer, being authorized at a meeting of its stockholders, refunded to the twenty-two stockholding defendants the sums they had contributed and deducted the same from its gross income tax return as an item of litigation expense, claiming it was legally liable to these contributors notwithstanding that they had made no claim or demand. This exemption claim is disallowed.
(2) In 1931 this taxpayer advanced the sum of $50,000 to H. Waterhouse Trust Company, Ltd. in the hope of aiding, with the help of others, the trust company from closing its doors due to its insolvent condition, which insolvency was known to the taxpayer. The following year the loan was written off the taxpayer's books as a total loss and deducted as a bad debt in its gross income tax return for that year. It claimed that the loan, while somewhat speculative, was made in good faith and supported by a promissory note. The note contained a proviso, as follows: "Payment of principal and interest to be made only when, if and to the extent that there shall be funds available therefor as set forth in letter of this date from the payor to the payee".
This deduction claim is disallowed.
(3) In its tax return for 1932 the taxpayer deducted as an ordinary and business expense the sum of $4,063.33 paid by it as pensions to widows and children of deceased employees. The collector denied this deduction; the Court finds it justifiable and allowed it.
Alexander & Baldwin, Limited's Case.
The claim of Alexander & Baldwin, Limited was for "bad debt" deduction which had been disallowed, and for a contribution which was also disallowed by the Collector.
In 1931 this taxpayer loaned $50,000 to Henry Waterhouse Trust Company, Limited for the purposes of reorganization, for which it received a note in the same terms as that received by American Factors. The following year this taxpayer determined the debt to be worthless and wrote it off in its books as a loss, which loss it claimed in its following tax return. This claim was on the same basis as the American Factor's claim and was disallowed by the Court.
In 1932 this taxpayer contributed $1,000 to the Hawaiian Bureau of Government Research, an organization maintained by contributions, which was created to gather statistical information and report on public affairs, legislation, social and economic which affected or might affect taxpayers, which contribution was disallowed by the collector.
At the close of arguments November 15, 1947 in the trial of the two cases the Court announced from the bench the following decisions:
"American Factors, Limited.
"1. Hackfeld Litigation:
"My opinion is that the persons who subscribed to pay voluntarily for the defense of this inordinately costly litigation were impulsed and motivated entirely by keen personal interests and desires to defeat the demands of the plaintiffs in the case and clear themselves as defendants against claims that they had unlawfully conspired and acted in fraud and greed, as well as to escape a liability in damages by a possible judgment against them, and to protect their individual investments as shareholders in the corporation, and that they were willing, and made a definite offer to pay, and did pay, to the extent of assessments made *135 against them, without promise or original expectation of reimbursement at the time and times they made their contributions to the litigation fund.
"There is no evidence that the taxpayer promised or implied an intention to reimburse them at the time they subscribed the agreement or made their contributions, and no evidence that the taxpayer even considered the matter until the backbone of the litigation was broken in victory to all the defendants.
"There was no demand by them or test of their right to have contribution at the expense of other shareholders who were not named as parties defendant. The approval at a stockholders' meeting and the act of the management in reimbursing these contributors from the company's funds apparently flowed largely from feelings of gratitude arising from the successful outcome of the case in litigation and the liberal aid of the contributors and their steering committee which contributed many facilities and influences such as could not have been supplied by the management of American Factors acting alone.
"Certainly, the taxpayer had very substantial interests to protect, and was justified in every way, as a legitimate business outlay, in paying from its own funds during the taxable year of 1932, or earlier years had it chosen to do so, the costs of litigation which imperiled its existence although others were involved in the same litigation as defendants and had much to lose, had the others not come forward with funds and volunteered to engineer and fight the battle at their own costs and had the taxpayer not accepted this offered payment plan and the volunteered services; either of the parties could have abandoned or modified this plan at any time, but so long as it was adhered to it was binding on both; but the taxpayer was not justified, in the realm of taxation laws and deductibles, to later deduct from taxable income the money it paid to reimburse voluntary contributors for money which they had paid out to clear themselves and this company of fraudulent charges made against them collectively and individually and to protect their property interests, no matter if victory in such defense brought great benefit to the taxpayer as well as to the other named defendants.
"As between share owners, of course, within ultra vires limitations, they were empowered to make any desired distribution of the company's funds so long as none was injured.
"The taxpayer is entitled to an expense-deduction in its 1932 tax return of the sum of all Hackfeld litigation paid by it prior to the end of 1932, less the amount paid in to it for that purpose by the other defendants. The claim for tax refund on sums reimbursed to voluntary contributors to this litigation fund is denied.
2. "As to the Waterhouse Trust Company contribution of $50,000, this was just that a contribution. The note given in acknowledgement of the contribution was contingent as to value upon such conditions as to give it no negotiable value from the time it was made. It could not be dealt with as a debt. The considerations in payment for the contribution flowed to the payee of the note at the time it was made the protection of the commercial community, sympathy toward Waterhouse Company clients who could ill afford to lose, and other commendable desires and motives of helpfulness and security, but there was no attempt to show that either American Factors or Alexander & Baldwin would have suffered any material loss had they not attempted to keep the Waterhouse Trust Company a going concern.
"I find that no part of this contribution was deductible as a bad debt or loss in 1932 or at any other time, since it never was a collectible debt, but was from the beginning in the nature of a contingent or speculative gift, to which status it speedily resolved itself with certainty, although it may have accomplished in part the purpose for which it was intended, that is, prolonged the life of Waterhouse Trust Company. Claim for tax refund on this outgoing sum of $50,000 is denied.
3. "As to the items of contributions or pensions to dependents of deceased employees, I am fully convinced from the evidence that this was a usual and, within ordinary business discretion, a necessary *136 and proper business practice. It is well recognized that it would reasonably tend to the gratification, good will and loyalty of employees in general and thus be a benefit to business operations, particularly in a business under many department heads and of ramified operations.
"I find these moderate and reasonable items to be proper income tax deductions. "Alexander & Baldwin, Limited.
1. "My opinion and finding with respect to the Waterhouse Trust contribution in the American Factors case is, in all pertinent respects, applicable to the refund claim of this litigant and the said claim is denied.
2. "As to the contribution to maintain the Hawaiian Bureau of Government Research, I find this to be an ordinary and necessary expense to a firm carrying on the business and business trusts and responsibilities such as Alexander & Baldwin carry.
"If more extensive findings and conclusions are desired, the prevailing parties may prepare and submit such proposals to me, after tendering copies to opposing counsel." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1020780/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1152
AGUS SETIADI LUNARDI; SELLY TANUWIHARDJA;
V.L.,
Petitioners,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A96-279-362; A96-279-363; A96-279-364)
Submitted: September 25, 2006 Decided: October 16, 2006
Before NIEMEYER, WILLIAMS, and DUNCAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Howard T. Mei, LAW OFFICES OF HOWARD T. MEI, Bethesda, Maryland,
for Petitioners. Peter D. Keisler, Assistant Attorney General, M.
Jocelyn Lopez Wright, Assistant Director, Office of Immigration
Litigation, Civil Division, Regina S. Moriarty, Tax Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Agus Setiadi Lunardi is the principal asylum applicant
for himself, Selly Tanuwihardja, his wife, and V.L., their minor
child, all natives and citizens of Indonesia. Lunardi petitions
for review of an order of the Board of Immigration Appeals (Board)
affirming the immigration judge’s denial of his requests for
asylum, withholding of removal, and protection under the Convention
Against Torture.* Because the Board affirmed under its streamlined
process, see 8 C.F.R. § 1003.1(e)(4) (2006), the immigration
judge’s decision is the final agency determination. See Camara v.
Ashcroft, 378 F.3d 361, 366 (4th Cir. 2004).
Lunardi challenges the immigration judge’s determination
that he failed to establish his eligibility for asylum. To obtain
reversal of an adverse eligibility determination, an alien “must
show that the evidence he presented was so compelling that no
reasonable factfinder could fail to find the requisite fear of
persecution.” INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992).
We have reviewed the evidence of record and conclude that Lunardi
fails to show that the evidence compels a contrary result.
Accordingly, we cannot grant the relief he seeks.
*
Lunardi does not challenge the Board’s denial of his
application for protection under the Convention Against Torture.
Therefore, this claim is abandoned. See Edwards v. City of
Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999).
- 2 -
Similarly, as Lunardi does not qualify for asylum, he is
also ineligible for withholding of removal. See Camara v.
Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004). “Because the burden
of proof for withholding of removal is higher than for asylum--even
though the facts that must be proved are the same--an applicant who
is ineligible for asylum is necessarily ineligible for withholding
of removal under [8 U.S.C.] § 1231(b)(3).” Id.
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED
- 3 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1037767/ | Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DAVID S., )
) Supreme Court No. S-14816
Appellant, )
) Superior Court No. 4FA-11-00273 PR
v. )
) OPINION
JARED H. and CONNIE H., )
) No. 6808 – August 16, 2013
Appellees. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge.
Appearances: Jason A. Weiner, Gazewood & Weiner, P.C.,
Fairbanks, for Appellant. Joseph W. Miller, Law Offices of
Joseph Miller, LLC, Fairbanks, for Appellees.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
STOWERS, Justice.
I. INTRODUCTION
The superior court granted a grandfather and grandmother’s petition to
adopt their grandchild without the consent of the biological father. The superior court
found that the father’s consent was not required because he failed significantly without
justifiable cause to communicate meaningfully with the child for a period of at least one
year. On appeal, the father does not challenge the superior court’s finding that he failed
to communicate meaningfully with the child for at least the year-long period; he instead
argues that this failure was justified by: (1) his incarceration; (2) an agreement he
allegedly had with the child’s biological mother; (3) alleged interference by the
grandparents; and (4) the totality of the circumstances. The father also argues that the
superior court abused its discretion by failing to consider visitation rights and by
awarding attorney’s fees against him.
Because the record does not support the father’s argument that his failure
to communicate meaningfully with the child was justified, the superior court did not
clearly err in finding that this failure was unjustified, and we affirm the superior court’s
finding that the father waived his right to consent to the adoption. Because the issue of
visitation rights was not raised before the superior court, we hold that the superior court
did not abuse its discretion in failing to consider the issue. Finally, because the superior
court did not abuse its discretion in awarding attorney’s fees against the father, we affirm
that award.
II. FACTS AND PROCEEDINGS
A. Facts
Katie Howard1 was born to Alicia Howard and David Smith in December
2003. Alicia was listed as the mother on the birth certificate, but David was not listed
as the father. At the time of Katie’s birth David was incarcerated; he has been
incarcerated for the majority of Katie’s life. David has never met or spoken to Katie.
David lived with Alicia in her parents’ home in Fairbanks for a brief period
prior to Katie’s birth, but moved out in early 2003 after a dispute with Alicia’s father.
In September 2003 David was arrested and incarcerated in Fairbanks on forgery charges
relating to an incident in Idaho. Soon after David was incarcerated Alicia obtained a
1
Pseudonyms have been used to protect the privacy of the parties.
-2- 6808
domestic violence protective order against him. The protective order remained effective
only for three weeks, as Alicia successfully requested to dissolve the order so that she
could “try to build a friendship [with David] and work things out for me and the baby to
be.”
David was extradited to Idaho just prior to Katie’s birth, and he and Alicia
initially maintained contact by sending letters to one another and by talking on the
telephone. Alicia sent seven letters to David in December 2003 that varied in subject
matter and in tone. In one she told David she was “sick of the [b.s.]” and accused him
of having an affair before he went to jail; in another she expressed her love for David and
described Katie’s bedroom and the birthing plan to him. In her final letter to David, sent
in April 2005, Alicia told David that she still loved him but she needed to keep him
“gone.”
David sent three letters to Alicia in early 2004 and two in 2005, all of which
were returned to sender. In the letters David expressed his excitement over Katie’s birth
and requested pictures of her. But David also grew frustrated over Alicia’s failure to
communicate and blamed her family for this lack of communication, stating, “I guess that
your parents have spoken and you are listening to them.” David also sent a letter directly
to Katie on April 6, 2004, in which he told her that he loved her and wanted to meet her,
but that he needed to get out of prison and get his act together first; this letter was also
returned to sender. David mailed his final two letters to Alicia in 2005 to a post office
box, noting he never received any response to the first three letters mailed to Alicia’s
parents’ house.
Alicia and David resumed limited contact via telephone and internet in
2006 and 2008 when David was temporarily released on parole. In July 2009 Alicia sent
David a message on a social networking site in which she gave him her telephone
number and asked him to call her because she had “a couple of very important questions”
-3- 6808
for him. In that same message Alicia also told David she was no longer mad at him and
requested he “look [her] up” on a social networking site so he could see pictures of Katie.
David did not respond or resume contact with Alicia until December 31, 2010, when he
sent her a “friend” request via the social networking site. David also had contact with
Alicia over a different social networking site in January or February 2011. This
interaction was the last time David and Alicia ever communicated.
Alicia and Katie resided with Alicia’s parents, Jared and Connie Howard,
after Katie was born. Alicia married in 2005, at which point she and Katie moved out
of the Howards’ home. Alicia’s marriage lasted just over three years, and in 2008 she
and Katie moved into their own home. In 2009 Alicia was diagnosed with bipolar
disorder.
Alicia died unexpectedly on March 1, 2011. Katie has lived with her
grandparents, Jared and Connie, ever since. Following Alicia’s death, David sent Jared
and Connie a letter in which he asked to talk to them about Katie and expressed concern
over Katie’s “welfare and this new transition that we are all about to incur.” It appears
that David was released from jail in April 2012.
B. Proceedings
Soon after Alicia’s death, Jared petitioned the superior court to be
appointed Katie’s temporary guardian. Jared stated in his petition that he had been
Katie’s father figure for her entire life and that he and Connie planned to adopt Katie.
Jared also informed the court that David was incarcerated and that David was not listed
as Katie’s father on her birth certificate. The court held a hearing and found that David’s
parental rights had been terminated or suspended because he had never had contact with
Katie, had denied his paternity, and was incarcerated in another state. On
March 25, 2011, the superior court appointed Jared as Katie’s temporary guardian.
-4- 6808
On May 2, 2011, while a long-term guardianship hearing was pending, the
Howards petitioned to adopt Katie. Such a petition normally requires written consent
from the child’s father, but consent is not required if the father has failed to legitimate
the child or if consent is not required under AS 25.23.050.2 The Howards argued that
David’s consent was not required and moved for summary judgment on the issue of
abandonment. David was found to be indigent and was appointed counsel.
In August 2011 Master Bethany S. Harbison held a two-day evidentiary
hearing on the issue of whether David had waived his right to consent to the adoption.
The master heard testimony from David, David’s girlfriend, David’s mother, and from
Jared and Connie.
David testified that, although he had failed to communicate meaningfully
with his daughter, he never waived his right to consent to the adoption because this
failure was justified. David acknowledged that he had occasionally gone a year or more
without talking to Alicia, attributing the lack of regular contact to his incarceration in a
medium-security facility, to the high costs of long-distance phone calls in prison, and to
the fact that his letters were returned.
2
AS 25.23.050(a) provides:
Consent to adoption is not required of
(1) for purposes of this section, a parent who has abandoned
a child for a period of at least six months;
(2) a parent of a child in the custody of another, if the parent
for a period of at least one year has failed significantly
without justifiable cause, including but not limited to
indigency,
(A) to communicate meaningfully with the child, or
(B) to provide for the care and support of the child as
required by law or judicial decree.
-5- 6808
David also cited an additional reason for his failure to communicate directly
with Katie: according to David, he and Alicia had agreed that he would not communicate
with his daughter while he was incarcerated. David testified that he and Alicia began
discussing the agreement in September or October 2003 and “finalized” it in January of
the following year. David stated that this agreement prevented him from contacting Katie
or taking formal steps to legitimate her.
David provided two distinct rationales for this agreement. First, David
testified that he and Alicia agreed that he would not be involved in Katie’s life until he
could be an active father, “[a]nd being in jail wasn’t being an active father.” David stated
that he and Alicia decided he could have contact with Katie when he “could pay [his]
own bills” and when he “grew up.” Second, David explained that he and Alicia agreed
that he would not have contact with Katie in order to prevent Alicia’s parents from
“cut[ting] her off” financially and emotionally, leaving her with no place to live. David
testified that he had a poor relationship with Alicia’s parents, so much so that they had
threatened to “cut [Alicia] out” if she had anything to do with David. According to
David, Alicia was “completely dependent on her parents” both financially and mentally
because of her mental health issues.
David’s girlfriend, Amanda, testified that David had not had any contact
with Katie because he was incarcerated and because the letters he had sent to Alicia had
been returned to sender, but that it was his “strong desire” to be in Katie’s life. Amanda
also testified about her own relationship and communication with David. Amanda
testified that she and David met in 1993 and began dating soon after he reinitiated contact
with her via internet in late 2010 while he was on work release from prison. Amanda
stated that the amount of contact she had with David varied depending on his level of
incarceration: when David was on work release, they communicated by internet several
times a week and by telephone every other day; when David was incarcerated in the
-6- 6808
medium-security facility, they communicated by telephone at least every other week and
by letter every four days or so.
David’s mother, Jane, testified that she met Alicia in 2002 before Alicia
became pregnant. Jane described a brief conversation she had with Alicia during which
Alicia stated that she was angry at David and did not want his name to appear on the birth
certificate. Jane also asserted that Alicia called her several years later to ask her to pass
along the message to David that she was going to be married to another man, she did not
want David to contact her, and she did not want any interference from David’s family.
Jane testified that Alicia had additionally stated that she was afraid that, if she continued
to see David, her parents would kick her out of the house and stop providing her with
financial support. Jane testified she had never heard firsthand from Alicia that she and
David had an agreement that he would not contact Katie, but that David had mentioned
the agreement to her by November 2003. Jane stated she did not personally feel that she
could contact Katie and that Alicia was very volatile because of her mental disorder.
Jane also testified about her own contact with David. Jane stated that she
talked to David at least once a week throughout his incarceration, and the only time she
was completely unable to contact him was when he was on lockdown.
Connie Howard testified that she initially liked David and allowed him to
live in her home, but that her feelings toward him changed because of his poor work ethic
and because he lied a lot. Connie asserted that David stole her expensive camera and,
when Jared subsequently asked David to leave the house, David cursed her out. Connie
explained that she would have been willing to give David a second chance, but he never
tried to communicate with her again.
Connie also testified that her daughter was not financially dependent on her
or her husband. Connie stated that Alicia moved out of her parents’ home when she
married in 2005 and never moved back. Connie acknowledged that she and her husband
-7- 6808
paid for many of Katie’s expenses, including her private schooling, her school clothes,
her gymnastics, and food for her pets, but they rarely gave money directly to Alicia.
Jared testified that he initially allowed David to live with the family, but
after moving in David forged one of his checks, stole his credit card, and made fraudulent
charges. Jared testified that he told David that he needed to straighten his life out and be
“a productive citizen in society,” but David failed to act accordingly, so Jared asked him
to leave.
Jared testified he and his wife provided Alicia with about $4,000 per year,
most of which was spent on Katie. According to Jared, Alicia was not completely
dependent on him and his wife: Alicia was consistently employed until her marriage in
2005, and she relied on Section 8 housing and food stamps for the two years preceding
her death because her bipolar disorder prevented her from working. Jared testified that
he would never “cut [his] children off.” Jared also testified that even though David knew
the Howards’ address and telephone number, David had never contacted Katie, and the
2011 letter was the first time David had tried to contact the Howards since Katie’s birth.
At the conclusion of the hearing the master declined to recommend to the
superior court that summary judgment be granted, but she found that David had failed to
legitimate Katie and that David had failed significantly without justifiable cause to
communicate meaningfully with Katie for a period of at least one year. The master
therefore concluded that David’s consent to the adoption was not required. At a
subsequent hearing, which David was not allowed to attend,3 the master found that it was
in Katie’s best interests to be adopted by her grandparents. The master entered her
findings of fact and recommendation to the superior court on October 11, 2011.
3
The master determined that, given her earlier finding that David’s consent
to the adoption was not required, David was no longer a party to the adoption and was
precluded from attending the adoption hearing.
-8- 6808
On June 7, 2012, Superior Court Judge Paul R. Lyle entered a 28-page
decision adopting the master’s findings in part and granting the petition for adoption.
Unlike the master, the superior court found David had legitimated Katie pursuant to
AS 25.20.050(a)(4). But the superior court agreed with the master that David’s consent
to the adoption was not required because David had failed significantly without
justifiable cause to communicate meaningfully with Katie for a period of at least one
year. The superior court subsequently determined that the adoption was in Katie’s best
interests and granted the Howards’ petition for adoption. David filed a motion for
reconsideration, which the superior court denied.
Thereafter, the Howards moved for attorney’s fees and costs pursuant to
Alaska Civil Rule 82. The Howards argued that they were entitled to an enhanced fee
award because their attorney had made efforts to minimize fees and because David had
pursued unreasonable claims. The superior court rejected the Howards’ request for an
enhanced fee award but granted their motion in part and awarded them 22.5% of their
actual allowed attorney fees, or $2,790.56.
David appeals.
III. STANDARD OF REVIEW
We review the superior court’s factual findings in an adoption proceeding
for clear error.4 “A factual finding is clearly erroneous ‘when a review of the record
leaves the court with a definite and firm conviction that the superior court has made a
4
In re Adoption of S.K.L.H., 204 P.3d 320, 324 (Alaska 2009) (citing In re
Adoption of Missy M., 133 P.3d 645, 648 (Alaska 2006)).
-9- 6808
mistake.’ ”5 We review questions of law de novo,6 applying our own independent
judgment and “adopting the rule of law that is ‘most persuasive in light of precedent,
reason and policy.’ ”7
The findings of a master that are adopted by the superior court are
considered the findings of that court.8 The superior court’s factual findings enjoy
particular deference when they are based primarily on oral testimony because the
superior court, not this court, performs the function of judging the credibility of witnesses
and weighing conflicting evidence.9
The superior court’s award of attorney’s fees is reviewed for abuse of
discretion.10 “We will reverse a ruling for abuse of discretion only when we are left with
a definite and firm conviction, after reviewing the entire record, that the [superior] court
erred.”11
5
Fardig v. Fardig, 56 P.3d 9, 11 (Alaska 2002) (quoting Siekawitch v.
Siekawitch, 956 P.2d 447, 449 (Alaska 1998)).
6
Osterkamp v. Stiles, 235 P.3d 193, 195-96 (Alaska 2010) (citing Guin v.
Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).
7
Id. (quoting Kinnard v. Kinnard, 43 P.3d 150, 153 (Alaska 2002)).
8
Alaska R. Civ. P. 52(a).
9
William P. v. Taunya P., 258 P.3d 812, 814 (Alaska 2011) (quoting
Misyura v. Misyura, 242 P.3d 1037, 1039 (Alaska 2010)) (quotation marks omitted); see
also Bowman v. Blair, 889 P.2d 1069, 1072 n.5 (Alaska 1995) (“Due regard shall be
given to the opportunity of the master to judge the credibility of the witnesses.”).
10
C.L. v. P.C.S., 17 P.3d 769, 772 (Alaska 2001).
11
Lentine v. State, 282 P.3d 369, 376 (Alaska 2012) (quoting Willoya v. State,
Dep’t of Corr., 53 P.3d 1115, 1119 (Alaska 2002)) (quotation marks omitted).
-10- 6808
IV. DISCUSSION
A. David Waived His Right To Consent To The Adoption.
1. David did not communicate meaningfully with Katie for a one-
year period.
Ordinarily both parents of a minor child must consent to the child’s
adoption.12 The father’s consent is normally required “if the father was married to the
mother at the time the minor was conceived or at any time after conception, the minor is
the father’s child by adoption, or the father has otherwise legitimated the minor under the
laws of the state.”13 However, AS 25.23.050(a) provides that consent is not required of
“a parent of a child in the custody of another, if the parent for a period of at least one year
has failed significantly without justifiable cause . . . to communicate meaningfully with
the child.”14 This provision “should be strictly construed in favor of the [biological]
parent and against a finding that the failure to communicate was without justifiable
cause.”15 The adoptive parent must prove by clear and convincing evidence that the
biological parent failed significantly to communicate meaningfully with the child for at
least one year.16 If the adoptive parent meets this burden, the burden of production shifts
to the biological parent to come forward with evidence of a justifiable cause for the
12
AS 25.23.040.
13
AS 25.23.040(a)(2).
14
AS 25.23.050(a)(2)(A).
15
In re Adoption of B.S.L., 779 P.2d 1222, 1224 (Alaska 1989) (citing In re
Adoption of K.M.M., 611 P.2d 84, 88 (Alaska 1980)).
16
In re D.J.A., 793 P.2d 1033, 1037 (Alaska 1990) (citing D.L.J. v. W.D.R.,
635 P.2d 834, 837 (Alaska 1981)).
-11- 6808
failure to communicate.17 If the biological parent meets this burden of production, the
adoptive parent must then prove by clear and convincing evidence that the biological
parent’s failure to communicate was without justifiable cause.18
The superior court found that David had legitimated Katie,19 but that the
Howards “established by clear and convincing evidence that there was a one year period
where there was no meaningful communication by [David] with [Alicia] or [Katie].” The
court found that David meaningfully communicated in 2004 and 2005 by sending letters
to Alicia from jail, but that after 2005 David “sent no messages intended for [Katie],
never asked to speak to [Katie], and had only occasional, fleeting contact with [Alicia]
by telephone or social media between 2006 and the filing of this adoption petition.”
There appears to be no dispute between the parties about whether David
failed to communicate meaningfully with Katie after 2005. On appeal David does not
argue that the superior court erred in finding that he failed to communicate meaningfully
with Katie; he instead contends that the court erred in finding that this failure lacked
justifiable cause. We therefore affirm the superior court’s undisputed finding that David
did not communicate meaningfully with Katie for a one-year period beginning in 2005.
17
Id. (citing D.L.J., 635 P.2d at 837).
18
Id. (citing D.L.J., 635 P.2d at 837).
19
Although the master found otherwise, the Howards do not challenge the
superior court’s finding that David legitimated Katie.
-12- 6808
2. The superior court did not clearly err in finding that David’s
failure to communicate meaningfully with Katie was without
justifiable cause.
“A parent has the duty to make reasonable efforts to locate and
communicate with his or her child.”20 A parent’s failure to communicate with his child
is justified only if his “efforts to communicate were objectively reasonable in light of the
existing circumstances.”21 But “[t]he long-established and continuing rule in Alaska is
that absent the element of willfulness, a parent does not lose the right to consent [to an
adoption] under AS 25.23.050(a)(2).”22
David argues that four separate grounds justified his failure to communicate
meaningfully with his daughter: (1) he was incarcerated during Katie’s entire life; (2)
he had a prior agreement with Alicia that prohibited him from communicating with Katie;
(3) Alicia’s parents interfered with his communication attempts; and (4) the totality of the
circumstances barred meaningful communication.
The superior court found that David adduced evidence supporting the first
two justifications; the Howards therefore bore the burden of proving by clear and
convincing evidence that David’s incarceration and alleged prior agreement with Alicia
did not provide justifiable cause for his failure to meaningfully communicate with
Katie.23
20
In re Adoption of B.S.L., 779 P.2d at 1224 (citing E.J.S. v. State, Dep’t of
Health & Soc. Servs., 754 P.2d 749, 751 (Alaska 1988)).
21
Id. (citing D.L.J., 635 P.2d at 839).
22
In re Adoption of J.M.F., 881 P.2d 1116, 1118 (Alaska 1994).
23
See In re D.J.A., 793 P.2d at 1037.
-13- 6808
a. The superior court did not clearly err in declining to find
that David’s incarceration justified his failure to
communicate meaningfully with Katie.
David argues that the fact that he was incarcerated for Katie’s entire life
provides sufficient justification for his lack of meaningful communication with his
daughter. David argues that it was “uncontested that he could not come to Fairbanks,
was limited where he could go . . . , and that he could not be a father or support [Katie]
under the conditions placed on him by the penal system.”
David cites to our decision in R.N.T. v. J.R.G. for the proposition that
“neglect of parental duties caused by imprisonment is not necessarily wilful and thus
does not inevitably result in the loss of a parent’s right to consent.”24 David argues that,
like the defendant in R.N.T., his incarceration precluded meaningful communication with
his daughter and therefore justified his failure to communicate.25
David’s reliance on R.N.T. is misplaced. In R.N.T., we considered whether
a father had justifiable cause for failing to communicate meaningfully with his children,
where the father’s attorney advised him not to write to his children or their mother while
he was in prison and his parole officer forbade him from communicating with his
children once he was released, except through a third party.26 We ruled that
imprisonment does not necessarily preclude a parent from communicating with his
children, but where it does, “the failure to communicate is properly considered non-wilful
24
R.N.T. v. J.R.G., 666 P.2d 1036, 1039 (Alaska 1983).
25
See id.
26
Id. at 1038.
-14 6808
and thus justifiable cause.”27 Under this standard, we held that the circumstances of the
father’s incarceration and parole provided justifiable cause.28
Three years later in In re J.J.J., however, we adopted the R.N.T. dissent’s
position and ruled that, where the terms of a parent’s imprisonment and parole effectively
prevent the parent from having contact with his or her children, “[t]he issue that must be
addressed is whether the constraints imposed on [the parent] were the result of his own
conduct, in which case his failure to communicate would not be justifiable, or were
instead the result of circumstances over which he had no control.”29
Under the In re J.J.J. standard, David’s incarceration cannot justify his
failure to communicate meaningfully with Katie because that failure was due to David’s
own conduct and subsequent incarceration. David was repeatedly granted parole and
placed on work release following Katie’s birth, but he continually violated his parole or
received new charges. Thus, any constraints imposed on David resulted from his own
conduct and from circumstances over which he had control.
Moreover, even if In re J.J.J. did not foreclose David’s argument, R.N.T.
would not provide support because ample evidence in the record clearly and
convincingly established that the circumstances of David’s incarceration did not prevent
him from having contact with Katie.30 When David was on work release in late 2010 and
early 2011 he was able to form a new romantic relationship and maintain regular internet
27
Id. at 1039.
28
Id.
29
In re J.J.J., 718 P.2d 948, 953 (Alaska 1986) (quoting R.N.T., 666 P.2d at
1041 (Compton, J., dissenting)).
30
See R.N.T., 666 P.2d at 1039 (“Of course, imprisonment does not
necessarily preclude a parent from communicating with his children.”).
-15- 6808
and phone communication with his girlfriend. David had only limited internet
communication with Alicia and no communication with Katie during this period.
David also testified that after Alicia contacted him via social media in 2009
and asked him to contact her so he could see pictures of Katie, he made no attempt to
respond until December 2010 when he “friended” her on a social networking site. David
attributed his lack of response to his incarceration, stating he “got rolled up from that
[medium-security] facility because [he was] denied parole, and wasn’t able to have
contact with her until . . . early this year.” However, David was able to maintain regular
contact with his mother and girlfriend when he was incarcerated at the medium-security
facility in 2011; he spoke on the telephone with his girlfriend at least once every other
week and with his mother at least once a week. David’s incarceration in a medium-
security facility did not prevent him from maintaining regular contact with his mother
and girlfriend, demonstrating that his failure to respond to Alicia’s message regarding
Katie was not a result of his incarceration.31
The superior court did not err in finding that the Howards established by
clear and convincing evidence that David’s incarceration did not justify his failure to
communicate meaningfully with Katie.
31
David also relies on the Ninth Circuit’s decision in United States v. Wolf
Child, 699 F.3d 1082 (9th Cir. 2012), to argue that his inability to have meaningful
contact with his daughter because of his incarceration was “of constitutional dimension,”
and that incarceration therefore provides “a blanket justification for failure to
meaningfully communicate with a child.” In Wolf Child, the Ninth Circuit held that a
special condition of supervised release that prohibited a defendant from being in the
company of minors, including his own children, was unconstitutional. Id. at 1087-88.
Wolf Child recognizes no constitutional rights previously unrecognized by this court and
in no way supports David’s argument.
-16- 6808
b. The superior court did not clearly err in declining to find
that the “agreement” between David and Alicia justified
David’s failure to communicate meaningfully with Katie.
David argues that his failure to communicate meaningfully with Katie was
justified by his agreement with Alicia. David asserts that Alicia’s parents, on whom she
was completely dependent, had threatened to “cut [Alicia] off financially” if David tried
to maintain contact with his daughter, so he and Alicia agreed that he would not contact
Katie. David also argues that because he could not be an active father while incarcerated,
he and Alicia agreed that he would not contact Katie until he was released from prison
and could participate actively in Katie’s life. David asserts that this agreement justified
his lack of communication.32
The following evidence supports the superior court’s finding that, contrary
to David’s testimony, David and Alicia never made an agreement that David would not
contact Katie: (1) David’s forgery conviction undermined his credibility, which was
critical because David’s testimony provided the primary support for the existence of an
agreement; (2) the letters undercut David’s testimony that an agreement existed, or that
he reasonably believed an agreement existed; and (3) the Howards testified credibly that
they would not cut off their own daughter and that Alicia was not financially dependent
on them, thereby undermining David’s testimony that an agreement ever existed.
32
David argues his agreement with Alicia is similar to the agreement at issue
in D.L.J. v. W.D.R, 635 P.2d 834 (Alaska 1981), where the father’s lack of
communication resulted in part from his efforts to comply with the mother’s request that
he not tell the child that he was the child’s biological father. Id. at 839. D.L.J. does not
support David’s argument: the superior court in this case did not find that David and
Alicia’s agreement did not provide justifiable cause for his failure to meaningfully
communicate; it found that “[t]he evidence clearly and convincingly establishes that no
agreement existed between [David] and [Alicia] that [David] would have no contact with
[Katie] until his release from incarceration.” (Emphasis added.)
-17- 6808
The superior court found that David’s credibility was undermined by
evidence of his past forgery conviction. Alaska Rule of Evidence 609 permits a party to
attack a witness’s credibility by admitting evidence that the witness has been convicted
of a crime of dishonesty if less than five years has elapsed since the date of the conviction
and the conviction is more probative than prejudicial.
On cross-examination the Howards’ attorney questioned David about a
2007 forgery conviction. The superior court properly considered this conviction, which
was less than five years old at the time of the hearing, after finding that its prejudicial
effect did not outweigh its probative value. The superior court did not clearly err in
finding that David’s forgery conviction undermined his credibility.
Additionally, the letters David and Alicia exchanged between 2003 and
2005 in and of themselves clearly and convincingly establish that there was no
agreement. David testified that he and Alicia formed their agreement by January 2004
at the very latest, but David sent a letter to Katie in April 2004 in which he stated, “I hope
your mother reads this [letter] to you and all the ones to come.” David acknowledged in
the letter that he “ha[d] to get [his life] together” before things could work out between
him and Alicia, and he also stated that he hoped he was able to get strong and well
enough that Alicia would “give [him] a shot at the marriage [he] promised her.” But
David in no way indicated that he had to accomplish these things before he could contact
Katie; to the contrary, David stated there would be more letters to come. David
repeatedly inquired after Katie in his other letters to Alicia sent after the purported
agreement had been finalized; they also do not indicate the existence of any sort of
agreement. And David expressed frustration with Alicia in a 2004 letter after she failed
-18- 6808
to communicate with him, stating, “I can’t . . . believe you. . . . I would never loose [sic]
contact with you and my daughter.”33
The letters also undermine David’s claim that he believed Alicia’s parents
would stop providing her with financial assistance if they knew Alicia or Katie was in
contact with David. David sent three of his five letters to Alicia’s parents’ home. He
sent the other two letters to the post office box solely because the first three had been
returned to sender, and he indicated that he would send future letters to Alicia’s parents’
house if Alicia did not receive the letters addressed to the post office box. David’s
willingness to write to Alicia at her parents’ home is inconsistent with his testimony that
he feared the Howards would cut off Alicia if he had anything to do with her.
The Howards’ testimony also undermines David’s claim that he and Alicia
feared that Alicia’s parents would stop providing Alicia with financial assistance if David
were to contact Katie. Jared testified he would never “cut [Alicia] off” or kick her out
of his home or disown her, and Connie testified she had never “throw[n] out [her]
daughter.” Both parents also testified that although they paid for many of Katie’s
expenses, they provided Alicia with only limited financial support, and Alicia supported
herself. The superior court found their testimony credible.
In sum, David’s own evidence and testimony contradicts his allegation that
an agreement with Alicia prevented him from meaningfully communicating with Katie,
33
Additional extrinsic evidence also establishes that there was no agreement
between David and Alicia. As the superior court noted, in her November 2003 motion
to dissolve the protective order Alicia stated that she wanted to “work things out [with
David] for me and the baby to be.” This statement contradicts David’s assertion that the
no-contact agreement was being formulated at this time. David attributed this
contradiction to Alicia’s “[u]ps and downs, being pregnant, not knowing what to do, the
father of her baby-to-be is in jail,” but the dissolution motion is consistent with the letters
in proving a lack of agreement between Alicia and David.
-19- 6808
and the Howards’ credible testimony further supports the superior court’s finding that
such an agreement never existed. The superior court did not clearly err in concluding
that there was clear and convincing evidence that no agreement existed between David
and Alicia that would justify David’s failure to communicate meaningfully with his
daughter.
c. The superior court did not clearly err in declining to find
that the Howards interfered with David’s communication
attempts.
David also argues that his failure to communicate with Katie was justified
by the Howards’ interference with his attempts at communication. David likens his
situation to our decision in S.M.K. v. R.G.G., where we held that a father and his family
had interfered with the mother’s attempts to communicate with the child such that the
mother’s failure to communicate was justified.34
In S.M.K., the father interfered with the mother’s communication attempts
by leaving the family home with the child without advising the mother of his plans,
giving custody of the child to his sister and her husband in another state, and refusing to
tell the mother of the child’s whereabouts.35 The child’s paternal grandmother also
interfered with the mother’s communication attempts by lying to the mother and to a
sheriff, and by pulling a gun on the mother when she came to the grandmother’s home
to inquire after her child.36
S.M.K. is inapplicable here. David alleges no specific instances of
interference by the Howards. David wrote one letter to Katie that was returned to sender,
34
702 P.2d 620, 623-25 (Alaska 1985).
35
Id. at 621-22.
36
Id. at 621.
-20 6808
but David does not allege that the Howards were responsible for this failed attempt at
communication. David instead argues that he was precluded from communicating with
Katie because, given her young age, any communication would require the Howards’
assistance, and he could not enlist their assistance because he did not have much of a
relationship with them. This lack of relationship does not amount to interference or
justify David’s failure to attempt to communicate with Katie.
David has produced no evidence of interference by the Howards in his
attempts to communicate with Katie, and the superior court did not err in declining to
find that the alleged interference justified his failure to communicate meaningfully.
d. The superior court did not clearly err in declining to find
that the totality of the circumstances justified David’s
failure to communicate meaningfully with Katie.
Finally, David argues that the totality of the circumstances justified his
failure to communicate meaningfully with Katie. David relies on Katie’s age, his own
incarceration, his “agreement” with Alicia, Alicia’s bipolar disorder, his “turbulent”
relationship with Alicia, and his lack of a relationship with the Howards to argue that the
totality of the circumstances provided justification. David cites to our decisions in
D.A. v. D.R.L.,37 S.M.K. v. R.G.G.,38 D.L.J. v. W.D.R.,39 and In re Adoption of K.M.M.,40
as examples of cases where we have looked “at all the circumstances and [found]
justification for a parent’s failure to communicate with his child.”
37
727 P.2d 768 (Alaska 1986).
38
702 P.2d 620 (Alaska 1985).
39
635 P.2d 834 (Alaska 1981).
40
611 P.2d 84 (Alaska 1980).
-21- 6808
We have “relaxed the requirement of meaningful communication” in cases
“where the child is too young to read or communicate over the telephone.”41 We have
previously found justifiable cause in cases where a child is very young and where
significant barriers to communication exist. In D.A., for example, we affirmed the
superior court’s finding of justifiable cause where the child was too young to talk on the
telephone or understand gifts or letters from the father, the mother postponed visitations
requested by the father, the mother remarried and the father experienced emotional
difficulty in visiting with the new family, and the new family was absent from Alaska for
three months during the critical year period.42 In D.L.J. we affirmed a justifiable cause
finding where the biological father was separated from his child when the child was just
three months old and lived far from the child, and the father was informed by the child’s
stepfather that his visits and money were unwelcome.43 And in S.M.K., discussed above,
we affirmed a finding of justifiable cause where the biological mother lived a significant
distance from her three-year-old child and her husband had actively prevented her from
contacting the child for several years.44
Here, although Katie was too young to read or communicate over the
telephone for the majority of David’s incarceration, the totality of the circumstances did
not justify David’s failure to meaningfully communicate with his daughter. David made
no real attempts to communicate with Katie after 2005. David implicitly asserts that such
attempts would have been futile because his letters to Alicia and Katie were returned to
sender and because he had problematic relationships with Katie’s mother and
41
D.A., 727 P.2d at 770 (citing S.M.K., 702 P.2d at 624).
42
Id.
43
635 P.2d at 836-39.
44
702 P.2d at 621-25.
-22- 6808
grandparents. But David alleges no instances of active interference of the type that
existed in D.L.J., D.A., or S.M.K.45 Even assuming that David’s failure to communicate
was initially justified by the fact that his letters were returned to sender, the
circumstances still do not warrant a finding of justifiable cause because in 2009 Alicia
made clear that she wanted to communicate with David about Katie, but David still failed
to initiate contact with his daughter and waited over 18 months to communicate with
Alicia.
The superior court did not clearly err in declining to find that the totality of
the circumstances justified David’s failure to meaningfully communicate with Katie.
B. The Superior Court Did Not Abuse Its Discretion In Declining To
Order Visitation.
David argues that the superior court abused its discretion by failing to
consider his post-adoption visitation rights. David argues that this issue was clearly
raised during the adoption hearing and asks us to remand for the superior court to
consider whether he should be granted the right to visit with his daughter.
David has waived this claim because he failed to raise it in the superior
court.46 In none of his pleadings to the superior court did David ever argue he should be
granted visitation rights. The only time visitation rights were ever addressed was at the
45
See D.A., 727 P.2d at 769 (mother repeatedly refused father’s visitation
requests); S.M.K., 702 P.2d at 621-22 (father sent child to another state and refused to
give custody to mother, and child’s grandmother lied to sheriff and pulled gun on mother
to prevent her from seeing child); D.L.J., 635 P.2d at 836 (father was informed by
stepfather that he and his money were unwelcome in child’s life, and mother lied to child
about the identity of her real father); see also In re Adoption of K.M.M., 611 P.2d at 87
88 (it was “an emotionally traumatic episode” for father to visit children due to the fact
that his wife left him and later married his best friend).
46
See Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001) (“A
party may not raise an issue for the first time on appeal.”).
-23- 6808
consent hearing, when David’s counsel asked the master, “[I]s this petition to . . . cut off
his parental rights and have no visitation?” The master responded, “[Yes], it’s the effect
of an adoption. It would terminate all rights he has.” Counsel responded that “adoptions
can preserve visitation rights,” and the master agreed, stating, “They can, if there’s an
agreement like that.” David never indicated that he wanted to preserve his visitation
rights or suggested that the court should consider whether visitation would be in Katie’s
best interests.
Although “Alaska’s adoption statutes explicitly permit ‘visitation between
the adopted person and that person’s [biological] parents and other relatives,’ ” 47 the
statutes “do[] not give the [biological] parent a right to post-adoption visitation.” 48 A
court may in its discretion grant visitation rights if it finds that visitation is in the child’s
best interests, but the court is under no independent duty to do so.49 Thus, David’s rights
were not violated by the superior court’s failure to consider post-adoption visitation.
C. The Superior Court Did Not Abuse Its Discretion By Awarding
Attorney’s Fees Against David.
The superior court applied Alaska Civil Rule 82 to award the Howards
$2,790.56 in attorney’s fees, which was 22.5% of their actual fees. The superior court
found that Rule 82 applied to this private contested adoption, that David was a party to
the adoption, that Rule 82 does not exempt indigent litigants from paying attorney’s fees
and that David was not completely without assets, that the Howards’ attorneys made
47
C.L. v. P.C.S., 17 P.3d 769, 778 (Alaska 2001) (quoting AS 25.23.130).
48
In re Adoption of A.F.M., 960 P.2d 602, 606 (Alaska 1998) (citing
AS 25.23.130(c)).
49
AS 25.23.130(c); see In re Adoption of A.F.M., 960 P.2d at 606 (holding
that AS 25.23.130(c) does not give the biological parent a right to post-adoption
visitation).
-24- 6808
efforts to minimize fees, and that the Howards were entitled to a fee award. The superior
court found that Rule 82(b)(2) called for a fee award of 30% of the Howards’ reasonable,
actual attorney’s fees necessarily incurred, but that a downward variation was warranted
in order to ensure that similarly situated parents of minimal financial means would not
be deterred from voluntary use of the courts. The superior court thus reduced the
Howards’ $12,402.50 actual attorney’s fees by 25% to $9,301.87, and awarded them
30% of $9,301.87, or $2,790.56.
David argues that the superior court abused its discretion by awarding any
attorney’s fees to the Howards. David notes that Rule 82(b)(3) allows a court to vary a
fee award calculated under Rule 82 and argues that, because he is indigent, because his
constitutional rights were implicated, and because his claims and defenses were
reasonable, “[t]his court should find that all the equitable factors require this [c]ourt to
find that no attorney fees should be awarded in this case should Co-Petitioners prevail.”
Alaska courts generally award partial attorney’s fees to the prevailing party
in a civil case pursuant to Rule 82.50 The purpose of Rule 82 is to partially compensate
a prevailing party for the expenses incurred in winning a case.51 Rule 82 gives the
50
See, e.g., State v. Jacob, 214 P.3d 353, 361 (Alaska 2009). Civil Rule
82(b)(2) provides:
In cases in which the prevailing party recovers no money
judgment, the court shall award the prevailing party in a case
which goes to trial 30 percent of the prevailing party’s
reasonable actual attorney’s fees which were necessarily
incurred, and shall award the prevailing party in a case
resolved without trial 20 percent of its actual attorney’s fees
which were necessarily incurred.
51
Tobeluk v. Lind, 589 P.2d 873, 876 (Alaska 1979) (“[The rule] is not
intended as a vehicle for accomplishing anything other than providing compensation
(continued...)
-25- 6808
superior court the discretion to vary a fee award upon the consideration of several factors,
amongst which are the attorney’s efforts to minimize fees; the reasonableness of the
claims and defenses pursued by each side; the extent to which a given fee award may be
so onerous to the non-prevailing party that it would deter similarly situated litigants from
the voluntary use of the courts; and other equitable factors deemed relevant.52
Here, the superior court made a thorough, thoughtful analysis before
awarding attorney’s fees to the Howards. The superior court carefully considered our
decision in Adoption of V.M.C.,53 where we affirmed the award of attorney’s fees against
grandparents who unsuccessfully sought to adopt their grandchild without the biological
father’s consent, thereby rejecting the argument that attorney’s fees should not be
awarded in adoption proceedings as a matter of judicial policy and that such awards
would create “a chilling effect upon the legitimate assertion of rights by both parties.”54
The superior court interpreted Adoption of V.M.C. as permitting fee awards against
biological parents in contested adoption proceedings, but found that a variance was
necessary to ensure that similarly situated parents would not be deterred from the
voluntary use of the courts.55 The superior court also gave thoughtful consideration to
our decision in Prentzel v. State, Department of Public Safety, where we affirmed the
51
(...continued)
where it is justified.”).
52
Alaska R. Civ. P. 82(b)(3).
53
528 P.2d 788 (Alaska 1974).
54
Id. at 789-92, 795-96. (“[W]e do not find in the facts of this case or the
equities of appellants’ position any sufficiently demonstrable interest or justification” to
warrant a departure from the usual procedure under Civil Rule 82.).
55
See Alaska R. Civ. P. 82(b)(3)(I).
-26- 6808
award of attorney’s fees against an indigent litigant.56 The superior court interpreted
Prentzel as cautioning against but not prohibiting the imposition of fee awards against
indigent litigants, and therefore appeared to find that any additional downward variation
that might have been warranted by David’s unconfirmed indigence57 was cancelled out
by the Howards’ attorneys’ efforts to minimize fees.
The superior court made a commendable effort to carefully consider our
prior decisions addressing attorney’s fees awards involving contested adoption
proceedings and indigent litigants as well as the applicable variance factors listed in
Civil Rule 82. The superior court did not abuse its discretion in awarding a reduced fee
award against David.58
56
In Prentzel, 169 P.3d 573 (Alaska 2007), the superior court found that the
State was the prevailing party and awarded partial fees. Id. at 594. On appeal, the
indigent litigant Prentzel argued that the award of attorney’s fees should have been
reversed because it could deter other similarly situated civil-rights litigants from bringing
actions in good faith. Id. at 595. We disagreed, holding that “the superior court
accounted for Prentzel’s status as a pro se indigent litigant by cutting the [S]tate’s hourly
billing rate in half. Moreover, the court ensured that time spent on Prentzel’s civil rights
claim and on his first appeal was not included in the award.” Id. We thereupon affirmed
the award of attorney’s fees. Id.
57
There was a question in the superior court about whether David was
actually indigent. The superior court found that he was indigent and appointed him
counsel in the long-term guardianship hearing and in the adoption proceeding, but on
cross-examination David indicated that he might at an unknown date be receiving an
inheritance of an unspecified amount.
58
The only ground David advances for why we should overturn the fee award
is that the superior court abused its discretion; he does not argue that attorney’s fees
should not be awarded against parents in contested adoption proceedings as a matter of
law or policy. Given the lack of briefing on this issue, the facts before us, and the
superior court’s fair and careful analysis, we decline to hold that the fee award in this
case is invalid as a matter of law. We note, however, that we are troubled by an award
(continued...)
-27- 6808
V. CONCLUSION
For the foregoing reasons, we AFFIRM the superior court in all respects.
58
(...continued)
of attorney’s fees against a biological parent in what is effectively a parental rights
termination proceeding. In the near-40 years since Adoption of V.M.C. was decided, we
have recognized that “[t]he right to direct the upbringing of one’s child is one of the most
basic of all civil liberties” and is so important a right that “[d]ue process requires that
[an] indigent [biological] parent be appointed an attorney to assist him in demonstrating
why his consent to the adoption of his child should not be rendered unnecessary.” In re
K.L.J., 813 P.2d 276, 279-86 (Alaska 1991) (internal quotation marks and citations
omitted). Thus, although we do not reach the issue of whether attorney’s fees awards
should be barred as a matter of law against a biological parent in a contested adoption
proceeding, we recognize there are strong policy arguments supporting such a ban. But
again, given the superior court’s careful, thoughtful analysis, we find no abuse of
discretion in the case before us.
-28- 6808 | 01-03-2023 | 08-16-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590211/ | 686 N.W.2d 804 (2004)
262 Mich.App. 649
ATTORNEY GENERAL, Appellant,
v.
Michigan PUBLIC SERVICE COMMISSION and Detroit Edison, Appellees.
Docket No. 242743.
Court of Appeals of Michigan.
Submitted January 20, 2004, at Detroit.
Decided July 1, 2004, at 9:05 a.m.
Released for Publication September 15, 2004.
*805 Michael A. Cox, Attorney General, and Theodore E. Hughes, J. Peter Lark, and Donald E. Erickson, Assistant Attorneys General, for the Attorney General.
Clark Hill P.L.C. (by Roderick S. Coy, Haran C. Rashes, and Michael P. Calabrese), Special Assistant Attorneys General, Okemos, for the Public Service Commission.
Before: O'CONNELL, P.J., and WILDER and MURRAY, JJ.
PER CURIAM.
The Attorney General appeals as of right an order issued by the Michigan Public Service Commission (PSC) holding, in pertinent part, that no retroactive ratemaking occurred when the PSC allowed Detroit Edison to defer 1997 extraordinary storm-related expenses and to amortize them during 1998 and 1999. We affirm.
I
On March 14, 1997, an ice storm resulted in power outages to more than 300,000 Detroit Edison customers. On April 6, 1997, a windstorm resulted in power outages to more than 100,000 Detroit Edison customers. On July 2, 1997, a windstorm and tornado left more than 300,000 Detroit Edison customers without power. To address these situations, Detroit Edison authorized overtime, used foreign line crews, and procured materials and equipment on an emergency basis. As a result, Detroit Edison had adjusted storm damage expenses for 1997 of $44,260,513.
*806 Detroit Edison's rates for 1997 had been set in a January 21, 1994, opinion and order in Case No. U-10102, and were based on a forecasted 1994 test year. The 1994 test year amount for storm-related expenses was $14,415,000. Detroit Edison claimed that its 1997 base rates therefore provided for $14,415,000 in annual storm-related expenses. After deducting $14,415,000 from its adjusted 1997 storm damage expenses of $44,261,000 (rounded up), Detroit Edison claimed that it had $29,846,000 in 1997 extraordinary storm-related expenses.
MCL 460.556 provides the PSC with the power to prescribe uniform methods of keeping accounts for electric utilities. Consistently with this authority, the PSC adopted the Uniform System of Accounts, see 1979 AC, R 460.9001, as amended by 1986 MR 12, R 460.9001, including Account 182.1:
182.1 Extraordinary Property Losses.
A. When authorized or directed by the Commission, this account shall include extraordinary losses, which could not reasonably have been anticipated and which are not covered by insurance or other provisions, such as unforeseen damages to property.
B. Application to the Commission for permission to use this account shall be accompanied by a statement giving a complete explanation with respect to the items which it is proposed to include herein, the period over which, and the accounts to which it is proposed to write off the charges, and other pertinent information.
On November 19, 1997, Detroit Edison filed an application with the PSC seeking to amortize the $29,846,000 in 1997 extraordinary storm-related expenses over two years, beginning in 1998. It sought to offset the 1998 amount of $14,923,000 against a previously ordered rate reduction of $53,357,000.[1] Detroit Edison proposed that the net amount of $38,434,000 be refunded to retail electric tariff customers in 1998, and further proposed that the remaining storm expense be deferred and amortized consistent with PSC Account 182.1.
In response to this application, the PSC issued an ex parte order on November 25, 1997, allowing Detroit Edison to amortize the 1997 extraordinary storm-related expenses during 1998 and 1999, and to offset half of these expenses in 1998 against the previously ordered rate reduction of $53,357,000. Because this did not result in an increase in customer rates, the PSC determined that ex parte relief was appropriate and that no contested case hearing was required under MCL 460.6a(1). While an appeal of this order was pending in this Court, the PSC authorized a similar offset of the other half of the storm-related expenses against 1999 rate reductions. This Court then reversed, holding that even though the net effect was a rate reduction, such an offset against a previously ordered rate reduction was in effect a rate increase. This Court also remanded for notice and a hearing on the rate increase as required by § 460.6a(1). See the Unpublished opinion per curiam of the Court of Appeals, issued June 11, 1999, 1999 WL 33441275, (Docket No. 207993).
On remand, the Attorney General objected to the accounting and ratemaking treatment of the storm-related expenses, arguing that Detroit Edison was in effect *807 implementing a rate increase in 1998 on the basis of costs incurred in 1997, constituting impermissible retroactive ratemaking. Noting that the PSC had adopted the Uniform System of Accounts, Detroit Edison argued that it was appropriate under Account No. 182.1 to use deferred cost accounting for the extraordinary costs associated with the unusually severe storm damage. Detroit Edison further argued that once costs were deferred, it was proper to recover the costs during the year to which they were deferred. The PSC held:
The legal principle that prohibits retroactive ratemaking does not support the Attorney General's position. As noted by Detroit Edison, the November 25, 1997 order authorizing a rate credit did not take effect until the beginning of 1998. Thus, it was prospective....
As stated in Account No 182.1 of the Uniform System of Accounts, "Extraordinary property losses," using deferred cost accounting to record storm damages is permissible with prior Commission authorization as an instance of "unforeseen damages to property." ... Although authorization to use deferred cost accounting does not itself alter rates, it may create ratemaking issues if the company seeks to recover the amortization through a rate request. However, it is well established that the rate recovery of amortization is permissible and is not retroactive ratemaking. [Ass'n of Businesses Advocating Tariff Equity (ABATE) v. Public Service Comm., 208 Mich.App. 248, 260-261, 527 N.W.2d 533 (1994)]; Detroit Edison Co. v. Michigan Public Service Commission [Public Service Comm], 221 Mich.App. 370, 374-76, 562 N.W.2d 224 (1997). See [ABATE], 208 Mich. App. at 261, 527 N.W.2d 533 ("Conceptually, ratepayers are charged for the amortization expense when it occurs and, therefore, rates coincide with the expense and are not retroactive.")
On appeal, the Attorney General argues that the PSC erred in concluding that the deferral and amortization of the storm-related expenses did not constitute retroactive ratemaking.
II
Our review of PSC orders is limited.
"Pursuant to MCL 462.25 ... all rates, fares, charges, classification and joint rates, regulations, practices, and services prescribed by the PSC are presumed, prima facie, to be lawful and reasonable. Michigan Consolidated Gas Co. v. Public Service Comm., 389 Mich. 624, 209 N.W.2d 210 (1973). An aggrieved party bears the burden of proving by clear and convincing evidence that the order appealed is unlawful or unreasonable. MCL 462.26(8).... An order is unlawful if it is based on an erroneous interpretation or application of the law, and it is unreasonable if it is not supported by the evidence. Associated Truck Lines, Inc. v. Public Service Comm., 377 Mich. 259, 140 N.W.2d 515 (1966). A reviewing court must give due deference to the administrative expertise of the PSC and may not substitute its judgment for that of the agency. City of Marshall v. Consumers Power Co. (On Remand), 206 Mich.App. 666, 677, 523 N.W.2d 483 (1994). However, this does not mean that courts may abandon or delegate their responsibility to interpret statutory language and legislative intent. Miller Bros. v. Public Service Comm., 180 Mich.App. 227, 232, 446 N.W.2d 640 (1989)."
Whether the PSC exceeded the scope of its authority is a question of law that we review de novo. Consumers Power *808 Co. v. Public Service Comm., 460 Mich. 148, 157, 596 N.W.2d 126 (1999). Indeed, the PSC possesses only the authority granted to it by the Legislature. The statutes that confer power on the PSC are strictly construed, and this Court does not weigh the economic and public policy factors that underlie the actions taken by the PSC. Id. at 156, 596 N.W.2d 126. [In re Complaint of Pelland, 254 Mich.App. 675, 681-682, 658 N.W.2d 849 (2003).]
III
We conclude that the PSC order at issue is neither unlawful nor unreasonable. The PSC did not exceed the scope of its authority by permitting the use of deferred cost accounting for storm-related expenses, and, because previous rates were not charged to correct further deficiencies caused by the storms, retroactive ratemaking did not occur.
The Attorney General's reliance on Michigan Bell Tel. Co. v. Public Service Comm., 315 Mich. 533, 24 N.W.2d 200 (1946), is misplaced. The precise issue in this case, whether costs that are incurred at a higher amount than estimated may be deferred to a future date and what effect such a deferral would have on subsequent rates, has not been previously addressed. In Michigan Bell, the PSC determined that Michigan Bell had made excessive depreciation charges and had avoidable expenses such that it should reduce its gross revenues for 1944 by $3,500,000. The PSC ordered Michigan Bell to devise a plan to distribute this amount to its customers for the year 1944. Noting that the rates charged in 1944 were lawfully imposed because the PSC's predecessor had authorized them, the Supreme Court held that "a lawfully established rate remains in force until altered by a subsequently established lawful rate." Id. at 544, 24 N.W.2d 200. The Court also held that "[t]here is no express or reasonably implied statutory provision authorizing the commission to alter or readjust telephone rates or charges retroactively." Id. at 545, 24 N.W.2d 200. The Court noted that rates are set in the commission's legislative capacity, and therefore must be construed like statutes and only be given prospective effect. The Court concluded: "[T]he commission exceeded its statutory powers in attempting to enforce its ... order retroactively. The commission's power to fix utility rates and charges is limited to orders which are prospectively effective." Id. at 554-555, 24 N.W.2d 200.
In Detroit Edison Co. v. Public Service Comm., 416 Mich. 510, 523, 331 N.W.2d 159 (1982), the Supreme Court reiterated that "the essential principle of the rule against retroactive ratemaking is that when the estimates [of costs on which rates are based] prove inaccurate and costs are higher or lower than predicted, the previously set rates cannot be changed to correct for the error; the only step that the MPSC can take is to prospectively revise rates in an effort to set more appropriate ones." In that case, the Court determined that a fuel adjustment charge, which was altered monthly on the basis of the two prior months' fuel costs, was proper because it was not designed to recoup prior costs, but, instead, used prior costs as an estimate of current costs.
In ABATE, supra at 261, 527 N.W.2d 533, the PSC approved Consumers Power Company's request to first capitalize costs associated with the development and construction of a nuclear power facility that never became operative and to then amortize the costs. This Court concluded that this practice was consistent with accepted regulatory and accounting principles, and that "when capitalized expenditures are amortized, the amortization becomes a current *809 expense even though it reflects expenditures that were capitalized in the past." Id.
In Detroit Edison Co. v. Public Service Comm., 221 Mich.App. 370, 562 N.W.2d 224 (1997), Detroit Edison incurred a $3,028,000 expense in 1993 as the result of a change in generally accepted rules of accounting for the cost of postretirement benefits. Specifically, Statement of Financial Accounting Standards (SFAS) 106 required companies to account for these costs on an accrual basis during the working lives of their employees. Edison deferred these SFAS 106 accrued costs until 1994 pursuant to a December 8, 1992, PSC decision in Case No. U-10040, in which the PSC held that utilities would be permitted to defer these costs for up to three years. Edison then sought to recover $3,028,000 of the deferred 1993 expenses in 1994. The Court stated:
For ratemaking purposes the expenses under SFAS 106 did not have to be recognized in 1993. Given the circumstances, which included a change in accounting rules that had to be implemented over time, permitting Detroit Edison to begin amortizing the expenses in 1994 was not unlawful or unreasonable....
* * *
The PSC's treatment of the SFAS 106 costs did not constitute retroactive ratemaking. Retroactive ratemaking, which is prohibited, involves a change either upward or downward in the rates charged by a utility for its services under a lawful order.... Ratemaking orders are prospective in effect.... The PSC's decision in this case concerning SFAS 106 expenses did not alter the rates charged in 1993. The 1994 rates were based on 1994 expenses, one of which was the deferred 1993 SFAS 106 expense permitted by [PSC Case No.] U-10040. [221 Mich.App. at 375-376, 562 N.W.2d 224.]
The PSC's deferral and ratemaking treatment of Detroit Edison's 1997 extraordinary storm-related expenses in this case is consistent with precedent from the Supreme Court and this Court. First, the only rates at issue in this case were the rates to be charged by Detroit Edison in 1998 and 1999. Unlike the circumstances presented in Michigan Bell, the PSC did not authorize or require Detroit Edison to readjust the rates charged in a prior year. Rather, the PSC entered separate orders permitting deferral and ratemaking treatment for 1998 and the ratemaking treatment for 1999. Each of these orders affected future rates, and therefore constituted orders providing for prospective ratemaking consistent with the principles set forth in Michigan Bell.
Additionally, and similarly to Detroit Edison, 221 Mich.App. 370, 562 N.W.2d 224, in this case there was no adjustment to previously set rates, but only future rates were affected. Thus, the PCS's orders do not violate the principle that previously set rates cannot be adjusted to account for costs that are higher than estimated. Moreover, the 1998 and 1999 rates were not being adjusted to account for 1997 expenses. Once these expenses were deferred, they became expenses incurred in the year to which they were deferred. Thus, the 1998 and 1999 rates were being charged prospectively for expenses incurred in 1998 and 1999. Although this reasoning requires recognition of an accounting convention, it is consistent with established and accepted regulatory and accounting principles. Indeed, the account for extraordinary property losses dates back to the PSC's adoption of a new uniform system of accounts in 1954, to be effective on January 1, *810 1961, in recognition of "changes in the art of accounting." See 1954 AACS, R. 460.3182.
In this regard we reject the Attorney General's argument that Detroit Edison, 221 Mich.App. 370, 562 N.W.2d 224, is distinguishable on the basis that the deferral of expenses in that case was approved before they were incurred whereas in the present case the PSC approval occurred after the storm-related expenses were incurred. The Court in Detroit Edison, id., did not establish as a principle of law that the timing of the request had any bearing on whether approval of the expense deferral was appropriate. The Attorney General fails to show that the manner in which the expense deferral was treated was inconsistent with accepted regulatory and accounting principles.
The deferral and ratemaking treatment in this case was also consistent with ABATE, which concluded that the recovery of deferred expenses did not constitute retroactive ratemaking. We reject the Attorney General's contention that ABATE is distinguishable because it involved amortization of a capital expenditure rather than amortization of deferred expenses. Each amortization process is consistent with accepted regulatory and accounting principles.
Finally, PSC Case Nos. U-8635, U-8812, and U-8854, cited by the Attorney General in support of the proposition that the deferral of costs may only be approved before the costs are incurred, do not buttress the Attorney General's position. In these cases Michigan Consolidated Gas Company spent $11,400,000 on environmental removal and remediation in 1984 and expensed the costs in 1984. In a subsequent year, Michigan Consolidated Gas Company sought to reverse the 1984 treatment of these costs and to have them deferred and amortized. The PSC disallowed the requested treatment, not because the utility failed to make the request before the expense was incurred, but, instead, because the expense treatment was not timely sought. The requested treatment was untimely because the deferral request was not made until after the utility had already chosen a method of expensing the cost. In this case, Detroit Edison requested deferral and amortization of the 1997 extraordinary storm-related expenses before it closed its books at the end of the 1997 calendar year. Thus, its request was timely.
Affirmed.
PETER D. O'CONNELL, KURTIS T. WILDER and CHRISTOPHER M. MURRAY, JJ., concur.
NOTES
[1] Pursuant to a 1988 settlement agreement, for the years 1988 through 1997 Edison was allowed to recover increased costs associated with owning and operating the Fermi 2 nuclear power plant. However, the settlement agreement provided that in 1998, Edison was to reduce this revenue for the Fermi 2 phase-in by $53,357,000. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2866937/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-03-00128-CR
Leroy Manning, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
NO. 2022703, HONORABLE CHARLES F. BAIRD, JUDGE PRESIDING
O R D E R
PER CURIAM
The reporter's record was due to be filed on February 11, 2003. The court reporter
failed to respond to this Court's notice that the reporter's record is overdue. See Tex. R. App. P.
35.3(c), 37.3(a)(2).
Appellant is represented by appointed counsel on appeal, as he was at trial. We
assume that if there were any question whether appellant is indigent, the district court would not
have appointed counsel.
The district court is instructed to order the preparation of the reporter's record at no
cost to appellant. The court reporter for the 403rd District Court, Ms. Joni Salminen, is ordered to
file the reporter's record no later than June 27, 2003. No further extension of time will be granted.
It is ordered May 27, 2003.
Before Chief Justice Law, Justices B. A. Smith and Puryear
Do Not Publish | 01-03-2023 | 09-06-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1590852/ | 14 So. 3d 7 (2009)
Mr. and Mrs. Adam THOMAS, Sr., et al.
v.
MOBIL OIL CORPORATION, et al.
No. 2008-CA-0541.
Court of Appeal of Louisiana, Fourth Circuit.
March 31, 2009.
Rehearing Denied May 20, 2009.
*8 Allain F. Hardin, Fransen & Hardin, A.P.L.C., Jerald N. Andry, Jr., Andry & Andry, L.L.C., New Orleans, LA, Sidney D. Torres, III, Roberta L. Burns, Law Offices of Sidney D. Torres, III, APLC, Chalmette, LA, for Plaintiffs/Appellants.
Michael P. Cash, Pro Hac Vice, Justin Presnal, Pro Hac Vice, Winstead P.C., Houston, TX, L. Victor Gregoire, Jr., Melissa A. Hemmans, Kean Miller Hawthorne D'Armond McCowan & Jarman, Baton Rouge, LA, for Defendants/Appellees Exxon Mobil Corporation and Chalmette Refining, L.L.C.
(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS, SR. and Judge PAUL A. BONIN).
JOAN BERNARD ARMSTRONG, Chief Judge.
Plaintiffs-appellants, Mr. and Mrs. Adam Thomas, Sr., et al., appeal a judgment denying their request for class action certification against the defendants-appellees, Exxon Mobil Corporation ("Exxon") and Chalmette Refining, L.L.C. The original petition was filed on December 5, 1990, on behalf of residents of Algiers, but residents of St. Bernard parish were added as a class by a later supplemental and amending petition. Murphy Oil Corporation and Calciner Industries, Inc. were dropped by the plaintiffs as defendants when the Louisiana Supreme Court rendered its decision denying class action certification in Ford v. Murphy Oil, U.S.A., Inc., 96-2913 (La.9/9/97), 703 So. 2d 542, a case with a lot in common with the instant case.
The plaintiffs allege personal injury and property damage resulting from emissions (flaring) from petrochemical facilities operated by the defendants over a period of years beginning on January 1, 1989, and running to 2003. The defendants in this case are charged with basically the same emissions issues they were charged with in the Ford case.
While the petition and amended petition allegations cover emissions from 1989 to 2003, the plaintiffs submitted approximately 7,000 claims forms from potential class members for alleged pollution emissions from 1990 to 1997, but specifically January 19, 1996. However, the claim forms do not specify on what dates any of the purported class members may have suffered from any one or more of the types of damage allegedly suffered by the class. The forms merely ask the class members to check off from a list of possible damages they allegedly sustained during the years 1990 to 1997. We cannot tell on which date or dates the claimants may have allegedly sustained the damages checked off and it is not credible to believe that all potential claimants suffered from the damages they checked off on each of the emission dates called for in the class action petitions.
The putative class action representatives in the instant case were also part of the putative class in Ford, among them being the same Mr. Ford for whom the Ford case is named. Mr. Ford was the only one of the class representatives to testify on behalf of the St. Bernard class in the instant case.
As we will explain in the following analysis, we find that the instant case is afflicted with the same impediments to class action certification that the Louisiana Supreme Court found to be most material in Ford.
While the plaintiffs attempt to distinguish Ford, we find that Ford, while not identical in all respects to the instant case, *9 reaches many conclusions that really cannot be distinguished from the case now before this Court and are determinative to the outcome of this case. The following pronouncements in Ford, which we find to be the foundation of the Louisiana Supreme Court's decision in that case, are equally applicable and compelling in the instant case:
The court of appeal made the following erroneous crucial finding based on McCastle that "[o]ffering the same facts, all class members will attempt to establish that the activities of Mobil and Murphy emitted hazardous, toxic, corrosive, or noxious odors, fumes, gases or particulate matter that caused them damage. The issue of these defendants duty predominates over individual questions." 681 So.2d at 407. However, far from offering the same facts, each class member will necessarily have to offer different facts to establish that certain defendants' emissions, either individually or in combination, caused them specific damages on yet unspecified dates (which dates may run into the hundreds or even thousands). The causation issue is even more complicated considering the widely divergent types of personal, property and business damages claimed and considering each plaintiffs' unique habits, exposures, length of exposures, medications, medical conditions, employment, and location of residence or business. In addition, each plaintiff will have to prove that the specific harm he suffered surpassed the level of inconvenience that is tolerated under C.C. art 668. [FN11 omitted.] By the very nature of the claims that have been made, the length of time involved, and the vast geographical area in which the class members live, the degree of inconvenience or damage suffered will vary greatly as to the individual plaintiffs. Lastly, the mere finding of "defendants duty" not to pollute will do little to advance the issues in this case. There appear to be far too many individual liability issues which could not be tried separately, as that is prohibited by article 593.1(C)(1). As aptly stated by Judge Schott in his dissent, "[o]ne plaintiff cannot prove individual causation and individual damage based on the exposure of another plaintiff to a particular emission." 681 So.2d at 411.
Id., 96-2913, 96-2917 & 96-2929, pp. 11-12, 703 So.2d at pp. 548-549.
While the Ford court went on to find that the "[p]laintiff's `synergy theory' is novel and untested," we conclude from our reading of Ford that the "synergy theory" was not material to the Court's decision in Ford. We find that the factors material to the Court's decision to reject class action status in Ford was instead based on the problems quoted above. Thus, the mere recasting of the complaint in the instant suit to eliminate the "synergy theory" is insufficient to overcome the major and most material objections raised in Ford which are also to be found in the instant case. The following findings of the trial court in this case echo the language of Ford:
Mr. and Mrs. Thomas complained of having experienced several different alleged symptoms as a result of exposure during releases, there are many class members who allege experiencing one, two or no symptoms at all as a result of the releases. Neither Mr. and Mrs. Thomas, nor any of the other class representatives who testified at the Class Certification Hearing, have the same habits, lifestyle, medical history, medication, location and/or overall exposure as the other proposed class members. Plaintiffs have not met their burden of proving adequacy of representation, commonality and typicality in accordance *10 with Louisiana code of Civil Procedure Articles 591-592.
The trial court found that the "class members are too diverse for the class representatives to adequately protect the absent members." In denying the plaintiffs' motion to certify the class, the trial judge stated in his judgment, which included reasons for judgment, that, "the Court adopts and supports in toto the Special Master's Report and Recommendation ..." The plaintiffs argue that there are errors in the Special Master's Report sufficient to compel this Court to reverse the judgment of the lower court. However, as the trial court did not simply adopt the Special Master's Report and Recommendation as the judgment of the court, but instead issued its own written reasons for judgment, errors in the Special Master's Report, if any, cannot alone serve as a basis for reversing the judgment of the trial court. Moreover, the record itself shows that it is impossible to distinguish the instant case from Ford regarding the factors that the Supreme Court found to be most material to its decision to reverse the certification of the class in that case.
The result reached by the Special Master in the instant case was based on the following conclusions:
Most of the factors that persuaded the Supreme Court of Louisiana to reject class certification [in Ford] are present in this case:
1.) the proposed class members will have to offer different facts to establish that certain emissions, either individually or cumulatively, caused them specific damages on specific dates;
2.) the causation issue requires consideration of the widely divergent types of personal, property and business damages claimed and requires consideration of each plaintiff's unique habits, medical history, exposures, length of exposures, concentration of chemical substances, medications, medical conditions, employment and location of businesses and residences;
3.) each plaintiff will have to prove that the specific level of harm suffered surpassed the level of inconvenience tolerated under Louisiana Civil Code Art. 668;
4.) the length of time involved spans from 1989 to at least 2003;
5.) the proposed class members live in two large geographic areas;
6.) the degree of inconvenience or damage suffered will vary greatly as to individual plaintiffs;
7.) a finding of the defendant's duty not to release chemicals in excess of the permitted levels will do little to advance the issues in this case;
8.) there are other sources of identical compound chemical substances complained to have caused the harms;
9.) there is no uniformity in the claims of liability and damages.
Adam Thomas, Gwendolyn Thomas, Consuella Cromedy and Willie Cromedy gave live testimony before the Special Master as representatives of the Algiers class.
Adam Thomas testified that he lived in the area since 1972. He and his wife have run a pre-school out of his home in the Algiers area across the river from the EXXON refinery. At the time he gave his testimony to the Special Master on February 7, 2007, he stated that he suffered from high blood pressure and heart problems which were first diagnosed in 1995. His attorney questioned him about these symptoms:
Q. As far as your condition, this high blood pressure; do you know *11 whether or not it was caused by the releases, any kind of pollution that's released into your neighborhood from the ExxonMobil plant.
A. No, I don't.
Q. Has any doctor ever told you that it was because of that?
A. No.
However, this is inconsistent with testimony he gave earlier in the hearing when his attorney asked him about his blood pressure:
Q. You mentioned your blood pressure. How do you know that let me ask you this; is your blood pressure affected when you smell that sulphur smell?
A. Yes.
He was the class representative in previous EXXON litigation and testified that he was familiar with his neighborhood and things that might impact it and his neighbors as he was both politically and socially active in the area. He testified that he and his neighbors had headaches, runny eyes, runny nose and sore or dry throats allegedly attributable to EXXON discharges. He described the EXXON flare as emitting a sulfurous odor, but that he did not smell something every time the flare went off. He was asked:
Q. And what reaction do you have when you smell that smell?
A. I have a fearful reaction. I'm ready to cover up. See what it is out there.
* * *
A. Well it frightens me a lot. It shakes me up.
He further testified that he feared that he might develop a fatal cancer and that there might be "a big explosion." He also experienced the physical symptoms described previously. He explained that all of his symptoms, which would include both physical symptoms and emotional distress lasted for two to three days after a flare that affected his neighborhood.
He testified that the flares emitted an oily residue that would get on his roof, cars and lawn and had killed his flowers. He opined that he lived closest to the EXXON plants of almost any member of the purported class, only two streets away from the river across from the EXXON plant:
Q. Now, other people in your class live much farther away, blocks and in some cases miles away; don't they?
A. Yes, I imagine.
Q. Now, how their property was impacted, how much oily particle was on their property might be quite different from what was on yours; correct?
A. That's correct.
Mr. Thomas admitted that he had no idea how people blocks away might have been impacted.
Defense counsel stipulated numerosity, but not typicality and commonality.
Mr. Thomas expressed the opinion that the chemical releases of the EXXON plant had so adversely impacted his home property value that he would be unable to sell his house, but he had made no attempt to sell the property and offered no reason or evidence in support of his opinion or whether any one else might share his opinion.
Mr. Thomas's wife, Ms. Gwendolyn Thomas, also testified as a putative class representative. She testified that the flares caused what she referred to as "soot" and thick black smoke, along with a smell like rotten eggs. She testified that she did not allow the day care center children to play outside on days when the *12 EXXON plant was flaring. She complained of symptoms affecting, "My eyes, my nose, my sinus, I get dizziness, short of breath. Sometimes I can taste it in my mouth." She said that as to her general health she had high blood pressure and sinus trouble, but did not attribute them to EXXON discharges. She complained that the flaring caused her to become nervous and dizzy and that her sinuses would become "real infected." She testified that she would become "frightful" and was afraid that she would get cancer.
She further testified that regardless of which way the wind blew on a particular day, she always smelled the flares. She testified that none of the children in her day care center had ever passed out or complained of dizziness and when first asked if any had thrown up she couldn't remember, but subsequently testified that: "I guess sometimes, but not often." She concluded this topic by agreeing that different releases would affect different children differently on different days. She testified that she did not know whether other members of the class would consider the flares to be a mere inconvenience. She admitted that other people in the neighborhood who did not suffer from high blood pressure as she did would be affected differently from the way in which she was affected. Plaintiffs' counsel then posed the following questions to her:
Q. As far as the times when you react to it and you have those physical reactions to it; is it your understanding that that causes your problems?
A. Yes.
Q. Is that only an inconvenience to you?
A. Yes, it is.
On re-cross-examination, Ms. Thomas explained that her symptoms varied from flare to flare.
Ms. Consuela Cromedy, age 58, lived in the putative class Algiers geographic area for thirty-five years and had spent a number of those years working at the Rosenwald school in the area. When asked if she had "any ongoing medical condition at present," her response was: "Sinus. High blood pressure." She explained that in 1984 she had had a "serious operation on my sinus," but that she still suffered with the sinus condition. She testified that whenever there was a flare, "Well, I get fearful, nervousness." She could feel vibrations in her home. She compared the odor to raw eggs, sulphur, and sewerage. She testified that:
[I]t makes me, first with a headache, dizzy, irritate my eyes, my throat, and it makes me short of breathing.
She testified that her blood pressure went up when there were flares. She testified that the odor could last for three days. She says she experiences flare events approximately five times a year. When asked how she reacted mentally and emotionally to the flare events, she replied:
Well, I'm very nervous. I[am] fearful. Fearful that I'll go get cancer in the near future from this Mobil.
However, she did not explain why she continued to fear the imminent onset of cancer when she had been allegedly exposed to the same carcinogen for so many years without ever having contracting cancer. She testified on cross-examination that in one of the years in question that for "365 days, 24 hours a day, [she] never left the neighborhood."
At one point in her testimony she testified that other people she had spoken to had the same complaints she had, but concluded her testimony with the statement: "To be honest with you I haven't spoke[n] to no [sic] one. Okay?"
*13 Her husband, Willie Daniel Cromedy, Jr. was the next to testify. They married thirty-eight years ago, before they moved into the neighborhood thirty-five years ago. He was on disability at the time he testified because of Syncope which caused him to have fainting spells. He testified that he could see the flares from his home and that when they occurred they could last for a couple of hours or, "Sometimes less, 30 minutes." He, too, complained of the rotten egg smell, sulfurous smell, "and then right after you get, it looks like spots just all over your house, your car. Leave all oil spots. Gets on the windshield wiper when you cut them on you can't see how to drive down the street from it." He testified that it did not matter which way the wind blew, the results were always the same. Like his wife he testified that the odor lingered for more than a day after the flare. He further testified that:
I get the headaches, you know, the nose, can't hardly breathe, sore throat, and the pressure.
Mr. Cromedy was prescribed medication to deal with the effects. When asked how long after being exposed to the smell he continued to feel the effects he responded: "Continual. Continual. Ain't gonna go away." He went on to testify that he feared, "Dying from it down the road," and that, "I wonder when the big one gon [sic] hit. When the big bang might kill us, the down fall, you know." He complained that:
Lil [sic] black stuff falls all over the house, on my car. I have to wash my house down and wash my car. I have to wash my house down and wash my car.
For part of the period of time in question he would be out of the neighborhood making deliveries for his trucking company job until 1998. He testified that he was a smoker but that none of his doctors had ever told him that smoking was bad for his health.
Mr. Kenneth Edward Ford, was the last putative class representative to give live testimony before the Special Master. At the time he testified he was living in a FEMA trailer because his home in St. Bernard was devastated by hurricane Katrina. He retired on disability as an Air National Guard non-commissioned officer in 1972 because of vascular problems with his thoracic artery. He testified that his home was approximately three thousand feet from the flare. He described the odor as "obnoxious" and "the smell is like hydrocarbons," like that of rotten eggs. He said that sometimes the odor was "sweetish" and that the "sweetish" smell was alright. He testified that "we couldn't open our windows plenty times because the odor was so obnoxious." However, he did not know what long term health effects it might be having on him. Short term, he complained that his eyes would water and his nose would run and that it might also cause itching. He said once he got red in the face and, "I think I went to the hospital and they examined me." However, he did not say what the results of the hospital examination were.
Mr. Ford also complained of "a black soot, like carbon. If you smear it, it's just nasty. You can't rub it off, you've got to wash it off." He complained that sometimes it would scratch his car when he tried to rub it off because it was like sand. He also complained that he hired professional cleaners to clean his house and that the power washing discolored his bricks and loosened mortar which resulted in stains. He had to change his carpets several times because of tracking the residue into his house.
He felt that because he was retired he was probably home more than many people in the neighborhood.
*14 In addition to his problem with his thoracic artery, he also had had a lung removed five years prior to testifying as well as bladder cancer. He feared that the emissions could cause him long term health problems.
He testified that although he was suing in this case for specific dates for emissions that supposedly were different from the emissions he was suing Murphy for in Ford v. Murphy, he was suing for the cumulative effect of emissions in both cases, thereby as a practical matter making it unrealistic to try to separate out the effects of the Murphy emissions.
He testified that he felt that the EXXON emissions caused a loss of value to his home because "a lot of people don't want to live close to a refinery."
The trial judge cited Davis v. American Home Products Corporation, 02-942, pp. 13-20 (La.App. 4 Cir. 3/26/03), 844 So. 2d 242, 254-258, for the propositions that "a class action may be certified only if numerosity, typicality, adequacy of representation and commonality requirements are met; the burden of proving the existence of these three elements falls on the plaintiffs; and that the class is definable.
The trial court cited Johnson v. Orleans Parish School Board, 00-0825 (La.App. 4 Cir. 6/27/01), 790 So. 2d 734, for the proposition that adequate representation of absent class members requires that proposed class representatives prove that their claims are a cross-section of or typical of the claims of all class members. The trial court found that: "None of the class representatives proved that they suffered any of the prerequisite injuries either physical, emotional, inconvenience or property damage necessary to meet the typicality. [Sic]" We find no manifest error in this finding.
A trial court's decision regarding class certification is reviewed under a manifest error standard and an abuse of discretion standard as such a decision involves both a consideration of whether a factual basis exists to certify the class and the exercise of the trial court's discretion in deciding if certification is appropriate. Gudo v. Administrators of Tulane Educational Fund, 06-1515, pp. 3-4 (La.App. 4 Cir. 9/5/07), 966 So. 2d 1069, 1073, writ denied, 972 So. 2d 1170 (La.1/11/08).
The trial judge "must be afforded wide latitude when making factual and policy determinations as to the appropriateness of a class." Chamberlain v. Belle of Orleans, 98-1740, pp. 3-4 (La.App. 4 Cir. 4/7/99), 731 So. 2d 1033, 1035; Doerr v. Mobil Oil Corp., 01-0775, p. 8 (La.App. 4 Cir. 2/27/02), 811 So. 2d 1135, 1142. Moreover, this Court has characterized the trial court's discretion in deciding if certification is appropriate as "vast." Id.
The defendants make the statement in their brief that this case is governed by the pre-1997 version of the class action statute, La. C.C.P. art. 591-592. The 1997 amendments, however, did not result in a substantive change to Louisiana class action law, as the changes had already been incorporated into class action jurisprudence. Doerr, supra, 01-0775, p. 8, 811 So.2d at 1142; See also, Bourgeois v. A.P. Green Industries, Inc., 06-87 (La.App. 5 Cir. 7/28/06), 939 So. 2d 478.
The primary pre-1997 requirements were numerosity, adequacy of representation, and commonality. McCastle v. Rollins Envtl. Servs. Of La., Inc., 456 So. 2d 612, 616 (La.1984).
The plaintiffs offered several thousand claims forms to show numerosity. They covered a seven year time span and included many questions calling for vague, subjective answers. The testimony *15 of the purported class representatives does not support a finding of manifest error or abuse of discretion. For example, Mr. and Mrs. Thomas testified to suffering from a certain group of symptoms, but an analysis of the claims forms shows that many claimants experienced only one or two of these symptoms and some experienced none of them. Based on the record before us we cannot say that the Special Master's report which the trial court adopted was manifestly wrong in concluding that:
In this case, based upon their own testimony, none of the class representatives can adequately represent the class. Each and every class representative has a separate, unique and individual history of exposures, none can prove that they were exposed to even a majority of the releases claimed to have caused injury, none of the class members have introduced even a scintilla of medical evidence to prove that they suffered a real as opposed to a hypothetical physical injury, and none of the class representatives possess first hand knowledge or experience of the wide ranging members of this class, which includes not only residents in the vicinity of the Chalmette Refinery from January 1, 1989, but also includes every person who operated businesses in the area, attended school or worked in the area, and/or who were merely present within the geographic area specified on any of the release dates. Consequently, the class definition itself excludes even the possibility that any class representatives could adequately represent the interests of all of the individuals included in the class certification.
Of the putative class representatives, only Mr. and Mrs. Thomas owned a business in the area, and as it was a day care center operated for all practical purposes out of their home, it is unlikely to be representative of businesses in the area. Moreover, they did not testify that their business suffered in any way from the flaring events.
Additionally, the record reflects that while the plaintiffs allege property damage as a class, they failed to offer any material evidence that they or any other member of their class suffered any such damages or could adequately represent the class on that broad category of claim. They offered no testimony other than the expression of their general opinion that their property values had been adversely affected based on nothing more than their opinion.
Moreover, the Special Master noted that "the class representatives cannot provide testimony that the level of harm by each class member surpassed the level of harm tolerated under [La. C.C.] Art. 668, required to establish damages for a nuisance claim," similar to the finding made by the Supreme Court in Ford, supra, pp. 11-12 & FN. 11, 703 So.2d at 549. Different members of the putative class live at widely divergent locations dispersed over distances ranging from close by to several miles away inevitably resulting in much different levels of exposure. Different members of the putative class may have lived in the area for most or all of the time period covered by the alleged exposure to the noxious emissions, while others have lived there for only a relatively short period of time resulting in much different levels and frequencies of exposure. Furthermore, each class representative admitted that as to all of these issues of extent of exposure and what effect such exposure may have had, he or she could only testify on a personal basis and could offer no insights or evidence regarding other members of the putative class concerning such issues, thereby supporting a finding of no *16 manifest error and no abuse of the trial court's discretion in denying class certification.
There were over 200 emission events alleged to have occurred over a period of 14 years. During that period of time there are just too many variables as to how various putative class members may have been exposed or affected that need to be resolved on an individual basis to allow for a workable class. A common question is defined as one which when answered as to one class member is answered as to all of them. Davis v. American Home Products Corp., 02-0942, p. 14 (La.App. 4 Cir. 3/26/03), 844 So. 2d 242, 254. As in Ford, "the mere finding of `defendants duty' not to pollute will do little to advance the issues in this case." Id., 96-2913, p. 12, 703 So.2d at 549. "If this [case] were to proceed as a class action, [it] would quickly disintegrate into unmanageable multitude of small suits with individual issues and evidence, violating the policy of judicial efficiency which the class action is designed to serve." Brown v. New Orleans Pub. Serv., Inc., 506 So. 2d 621, 624 (La. App. 4 Cir.1987).
Likewise, plaintiffs expert, Dr. Mehlmann, did not consider variables such as the fact that many putative plaintiffs lived in the area for differing lengths of time and that there were other petrochemical plants in the area in addition to those of the defendants herein which were emitting as much or more of the allegedly noxious fumes into the area. Dr. Mehlman relied on the plaintiffs' claim forms, but could not tell from those forms who was exposed to what substances on which days, for how long or in what quantity. He admitted that it is likely that most people in the New Orleans area would have experienced the symptoms listed on the claim forms at some point during the seven-year period inquired about, even if they were not exposed to any substances released by Exxon or any other individual facility. Dr. Mehlman also admitted that the claims of plaintiffs who only checked one listed symptom would be suspect, yet he did not make an effort to exclude such persons from his analysis. Moreover, the fact that a number of putative class members checked no symptoms supports a finding that there is no commonality among the class members as to their individual claims.
Additionally, Dr. Mehlman gave testimony that shows how weak the claim to class action status is, especially as regards residents of St. Bernard Parish:
Q. You're sitting here as a scientist and you are willing to opine people in St. Bernard Parish were exposed to [sulfur dioxide] based upon the testimony of three class representatives out of the thousands of people over there? That's enough evidence for you to come to this conclusion?
A. What I have seen is the people in that transcript identify the same but, right, only three. That's all I saw.
Q. That's good enough for you?
A. No. That's all I saw. That's all I can say. The people [who] gave testimony have identical symptoms. That's all. And they happen to be from St. Bernard. I didn't realize that when I was reading. I thought they [were] all part of the same, of Algiers.
Q. Now, given that you rely on air modeling; do you know where St. Bernard is located vis-a-vis, where Algiers [is] located in relation to the claim? Are they in different directions from one another?
A. Yes. They are on the same side as the EXXON Mobil Refinery. Algiers is ... across the River.
*17 Q. So they're different. The wind would blow the [sulfur dioxide] different directions on the different times; would you agree with that?
A. On different days, yes.
Q. And you can't tell me who was exposed to what, on which days, for how long, or how much; can you?
A. No, I can not.
This Court has no basis for finding manifest error or abuse of discretion in the findings of the trial court based on the record before us.
Regarding emissions by other plants in the area, the plaintiffs, cite West v. G. & H. Seed Co., 01-1453 (La.App. 3 Cir. 8/28/02), 832 So. 2d 274, for the proposition that, "The case law holds that the fault of others, if any is an issue for damages and not liability." However, the facts in West, which involved a class of crawfish farmers who allegedly sustained damage from an insecticide, are not even remotely related to or analogous to those of the instant case. We find nothing in West that suggests that the trial court in the instant case committed manifest error or abused its discretion.
Plaintiffs' air modeling expert, Dr. David Mitchell, designed his model based on a "worst case scenario" of emission events occurring in the years 1989-2003. Basing his analysis on the National Ambient Air Quality Standard, he testified that the standard was exceeded in only two of approximately 40 releases he modeled and that if he had used OSHA standards instead, there would be no releases of sulphur dioxide exceeding permissible levels.
Significantly, Dr. Mitchell, failed to include in his modeling other sources of the same pollutants that exceeded those of the instant defendants. While there is some dispute in the record about the levels of pollutants from other plants in the area, it stands to reason that if they emitted substantial amounts of the same pollutants complained of by the plaintiffs in the instant case, it must have contributed to the overall level of pollutants in the air even if the levels emitted by those other plants were within regulatory limits.
In the final analysis, we find Ford to be controlling. We find that from a class action perspective the instant case in so many material ways contains the same obstacles to class action certification that the Ford court found to be insurmountable under the facts before it as to be more than sufficient to prevent this Court from saying that the trial court's denial of class action certification in the instant case was manifestly erroneous/clearly wrong or an abuse of discretion.
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED.
BONIN, J., dissents and assigns reasons.
BONIN, J., dissents and assigns reasons.
I respectfully dissent. As our court noted in Andry v. Murphy Oil, 97-0793, p. 2 (La.App. 4 Cir. 4/1/98), 710 So. 2d 1126, 1128-29:
A class action is no more than a procedural device; it confers no substantive rights.... The only issue to be considered by the trial court in ruling on certification, and by this Court on review, is whether the case at bar is one in which the procedural device is appropriate. In determining the propriety of a class action the court is not concerned with whether the plaintiffs have stated a cause of action or the likelihood that they ultimately will prevail on the merits. *18 It is well understood that a class action is an imperfect and imprecise method for adjudicating competing rights. However, when each individual's claim is small, disallowing class certification "pose[s] a serious threat to the loss of individual substantive rights if the class action is not allowed." Williams v. State, 350 So. 2d 131, 135 (La. 1977). The special master, and the trial court, improperly deviated from the realm of class certification and wandered into the merits of the claim.[1]
The trial court, in my view, abused its discretion in failing to consider whether any class, other than only the one proposed by the putative class representatives could be certified. La. C.C.P. art. 592(A)(3)(c) provides that "[i]n the process of class certification, ..., the court ... may enlarge, restrict, or otherwise redefine the constituency of the class or the issues to be maintained in the class action." The special master and the trial court failed to consider sufficiently whether this class action lawsuit remedied the objections raised by the Louisiana Supreme Court in Ford v. Murphy Oil, U.S.A, Inc., 96-2913 (La.9/9/97), 703 So. 2d 542. Chief Justice Calogero, in his concurring opinion in Ford supra at 551, wrote to emphasize that McCastle v. Rollins Environmental Serv. of La., 456 So. 2d 612 (La.1984) "is still good law."
Judge Peters' analysis in his dissent from the Third Circuit's holding in Bartlett v. Browning-Ferris Ind. Chem. Serv., Inc., 98-0341, p. 4 (La.App. 3 Cir. 12/9/98), 726 So. 2d 414, 416-77, applies equally to this matter:
To read Ford in such a restrictive way is to preclude certification of any class action tort suit. Citing Stevens v. Board of Trustees of Police Pension Fund 309 So. 2d 144 (La.1975), the court in Ford made it clear "that the fact that different recoveries are sought, based upon the same factual transaction and same legal relationship" is not sufficient to defeat a class action. Ford 703 So.2d at 546.
As pointed out by the majority, the decision in Ford was based on the fact that the plaintiffs were seeking recovery from four separate entities which operated four sources of pollutants. They asserted that these pollutants, individually or combined, caused the damages which were the subject of the class action request. The factors cited as controlling in denying class certification in that case are not present in this litigation....
In McCastle the supreme court allowed a class action of 4000 people against the operator of a hazardous waste facility and the hazardous waste supplier. The supreme court pointed out in McCastle that "individual questions of quantum do not preclude a class action when predominant liability issues are common to the class." Id. at 620. The court further concluded that "a pragmatic rather than formalistic review of the pleadings and the showing made herein clearly indicates that a class action would be superior to other available adjudicatory methods for effectuating substantive law, judicial efficiency and individual fairness in this case." Id. at 621. Importantly, McCastle was not overruled in Ford; rather, Ford simply refused to extend McCastle to the broad facts before it. (emphasis added)
In a Per Curiam decision on a writ grant to the Third Circuit, but following partial settlements and a report from the parties *19 that on that account class action was no longer necessary, the Supreme Court noted:
... this Court was particularly concerned that the court of appeal committed an error of law in denying class certification based primarily on plaintiffs' burden of proving damages. As we have made clear before and reiterate today, the mere fact that varying degrees of damages may result from the same factual transaction and same legal relationship or that class members must individually prove their right to recover does not preclude class certification, (emphasis supplied)
Bartlett v. Browning-Ferris Ind. Chem. Serv., Inc., 99-0494, p. 3 (La.11/12/99), 759 So. 2d 755, 756. This analysis of the proper reading of Ford is reinforced by the reasons given by Justice Johnson in her dissent:
I believe the actions of the lower courts should be reversed and this matter certified as a class action. The lower courts' reliance on Ford v. Murphy Oil... was misplaced. The refusal to certify the class in Ford was based on the fact that recovery was sought from four separate entities operating four separate sources of pollutants. The plaintiffs averred that the pollutants, both individually and in combination, were the cause of their damages. Thus, class certification was denied.
In my view, this case is distinguishable from Ford, Here we are dealing with one source of pollution rather than four, and the lower courts erred in using Ford as the basis for vacating class certification. This case is more closely akin to McCastle .... While the plaintiffs in McCastle sought varying degrees of damages, the Court stated that "individual questions of quantum do not preclude a class action when predominant liability issues are common to the class." Id. at 620. Similarly, while there is some diversity in damages in the present matter, the plaintiffs should not be precluded from going forward to determine liability.
Further, while the number of plaintiffs has decreased to approximately 270, the same dangers of inconsistent determinations and of earlier separate adjudications with prejudicial effect still exist.
Id. at 757.
This case, it seems to me, is a good faith attempt by the plaintiffs to limit the claims and the parties from their initial filing in Ford and achieve substantive justice. The Ford court specifically noted that its decertification of the class "will not keep these plaintiffs out of court ... [because] individual actions, consolidated actions, or perhaps a more limited class action are still available." Ford, 703 So. 2d 542, 549 (emphasis added).
By completely denying class certification, without even attempting to apply the provisions of La. C.C.P. art. 592(A)(3)(c), these plaintiffs are, we all know, effectively put out of court.
... [I]t is a troubling proposition that a tortfeasor can be relieved of responsibility if its conduct produces minimal harm, albeit to many people. Surely a wrong that causes a hundred dollars of harm to ten thousand people is of no less concern than a wrong that causes a million dollars of harm to an individual. To declare the former harm de minimis, and not worthy of redress is to undermine the dual concerns of tort law: accountability for the wrongdoer and compensation for the victim.
Doerr v. Mobil Oil Corp., 04-1789, p. 10 (La.App. 4 Cir. 6/14/06), 935 So. 2d 231, 238. Therefore, I respectfully dissent.
NOTES
[1] For example, the special master in conclusion of law # 8 reported: "The class definition requires a determination of the merits of the case, i.e. the ultimate issues of liability and causation." The trial court adopted the report "in toto." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2455566/ | 798 S.W.2d 772 (1990)
William R. WILHITE, Plaintiff-Appellee,
v.
BROWNSVILLE CONCRETE COMPANY, INC., Jeff Hayes and Hoyte Hayes, Defendants-Appellants.
Court of Appeals of Tennessee, Western Section, at Jackson.
July 6, 1990.
Application for Permission to Appeal Denied October 1, 1990.
John B. Bond, Brownsville, for defendants-appellants.
Harold F. Johnson, Jackson, for plaintiff-appellee.
Application for Permission to Appeal Denied by Supreme Court October 1, 1990.
CRAWFORD, Judge.
This is a suit to recover damages for the allegedly faulty construction of a swimming pool filed by plaintiff, William R. Wilhite, against Brownsville Concrete Company, Inc., Jeff Hayes and Hoyte Hayes. The seventeen page complaint, although unduly verbose with detailed description of facts which are better left to proof, in general alleges that plaintiff accepted a proposal made by defendants to construct a swimming pool for plaintiff in a good, workmanlike manner. Plaintiff avers that the defendants breached the contract, breached the express warranty to perform the contract in a good workmanlike manner, and breached an implied warranty of fitness for its intended use. The complaint seeks damages for costs incurred to correct the faulty construction, for additional expense incurred to maintain the pool because of the faulty construction and for the loss of use of the pool.
The defendants' answer joins issue on the material allegations of the complaint and further avers that the existing damage *773 to the swimming pool was caused by the intervening act of third parties.
After a full evidentiary hearing without a jury, the trial court found that the swimming pool was not properly constructed and that this caused the pool to float or come out of the ground. The court further found that the necessary cost to repair the damage by replacing the pool was $33,000.00, and plaintiff also incurred additional expense for chemicals during the years 1984, 1985 and 1986 in the amount of $1,950.00. Judgment was entered for plaintiff in the amount of $34,950.00 against the defendants Brownsville Concrete Company, Inc., Jeff Hayes and Hoyte Hayes.
Defendants have appealed and present four issues for review by this Court. At the outset, we should point out that none of the defendants-appellants have presented any issue pertaining to their individual liability to the plaintiff based on their individual relationships, contractual or otherwise, with the plaintiff. Although the trial court found the defendants jointly and severally liable, the defendants have raised no issue concerning this aspect of the case. Therefore, the defendants will be considered as one in our deliberation on the issues.
We will now consider the issues as presented by the appellants.
Issue No. 1: Whether it was error for the trial court to find that the swimming pool was defectively built by the Appellants when there was no proof shown to point to a specific defect.
Since this case was tried by the court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d).
The trial court relied primarily upon the testimony of Diana Hughes, Randy Brewer and Billy Brewer in making his determination that faulty construction on the part of the defendant caused the damage to plaintiff. We briefly review their testimony:
DIANA HUGHES
At trial, Diana Hughes, the daughter of the plaintiff, testified concerning the problems with the pool. Because of the age of her parents, Diana Hughes resided in a trailer behind their home and was responsible for the maintenance and up-keep of the pool. She testified that the pool was under construction in the fall of 1983 and that upon completion she swam in the pool in the fall of 1983, even though the water was too cold for swimming. The pool was not covered for the winter until February of 1984, because of the need to have a special covering made for it, but Hughes testified that prior to covering the pool, it had lost approximately two feet of water.
When the pool was uncovered for the 1984 swimming season commencing in May, Hughes testified that she again observed a lowered water level and also observed algae in the pool as well as several places where the coping (the horizontal tiles around the top of the pool) had broken and where the wooden spacers around the deck were protruding. Defendants repaired the coping, the decking, and replastered the rough surface inside the pool. Hughes testified that the defendants had no explanation for the water loss other than evaporation and had no explanation of why the water loss ceased when the water level got below the skimmers. In the summer of 1984, Hayes did find a broken tile within the skimmer and that behind this broken tile there was a two-inch crack. Hughes testified that Hayes replaced the tile and the water loss ceased for two to three months, but then commenced again when the same tile broke loose a second time. Hughes testified that over the 1984 swimming season, the plaintiff spent approximately $1,000 more than normal in pool chemicals as a result of the water loss.
Hughes testified that when the pool was uncovered for the 1985 swimming season, she then observed a lowered water level, broken coping, and also spaces between the decking and the coping. Water loss problems and algae continued through the summer of 1985, and Hughes testified that she *774 purchased seven to eight hundred dollars worth of pool chemicals that season.
When the pool was uncovered in 1986, the water level was lower than ever. Hughes testified that the family had less swim time in 1986 than they did in 1984 or 1985 because of algae problems and because of the uncomfortably high level of chlorine necessary to kill off the algae.
In early 1987, Mrs. Wilhite (wife of plaintiff and mother of Diana Hughes) was hospitalized. Hughes testified that plaintiff wanted the pool to be in an aesthetically pleasing condition when his wife was released from the hospital because she gained such enjoyment from it. For this reason, he contacted Jeff Hayes who came to the pool site on Friday, April 10, 1987. Hughes testified that Hayes said he would drain the pool and then check the light and the bottom drain. Hughes did not remember seeing Hayes on Saturday, but saw a ladder in the fully drained pool and observed the light hanging out of its socket.
On Sunday, Randy Brewer came to the pool site to acid wash the pool. He put the light back in its socket and, after notifying Hughes, replaced the hydrostatic valve in the bottom of the pool with a plug. At approximately 12:30 p.m., April 12, Hughes and Brewer stretched five garden hoses into the pool and began to refill it. While the water was filling the pool, Hughes observed a crack in the concrete in the side of the pool through which mud was oozing into the pool. In response to this, Hughes turned off the water to the pool. At this time, the water filled the deep end of the pool and was level with the bottom of the shallow end. That night at about 9 o'clock, Hughes heard noises which sounded like firecrackers or shotguns, and in the morning the pool had risen several inches out of the ground. Hughes testified that Jeff Hayes returned Monday afternoon when he learned that the valve had been removed and a plug installed, he said, "It's yours."
Hughes testified that the pool was not repaired that summer and that no one would agree to fix it until the Brewer company finally agreed to rebuild the pool in June of 1988. On cross examination, Hughes testified that the previous owner of the home had a pool float as this one did, but she testified that the pool had been drained and left emptied.
RANDY BREWER
Randy Brewer testified as to his involvement with this pool and was also allowed to give opinion testimony as an expert in the construction of pools. He testified that hydrostatic valves such as the one installed by Hayes function by opening when water pressure below the pool is greater than that within the pool and that they are not used by many people. He testified that he has had no problem from not using them. There was no water coming in through the hydrostatic valves when he was there cleaning the pool.
Brewer testified that he replaced the valves in the pool with plugs. He testified that after the incident in April he observed large cracks in the pool wall and observed that the water was down about two feet. He opined that the hydrostatic pressure which forced the pool to "float" was caused by leaking water as the pool was being filled.
BILLY BREWER
Billy Brewer, Randy Brewer's father, testified as to his observations of the Wilhite pool and as an expert, having been in the pool business for 26 years. He testified that in April of 1987 the Wilhite pool had risen approximately four to eight inches out of the ground. He returned to the pool in June or July of 1988 to rebuild the pool. At that time he observed a crack below the skimmer in the deep end of the pool which went from the skimmer almost to the bottom of the pool. Behind this crack he found a void on the west side of the pool which was approximately two to three feet wide and fourteen to eighteen inches deep. Additionally, when he removed the bottom of the pool he found a void of eighteen to twenty inches under the pool's bottom which contained four to five thousand gallons of water. In his opinion the water seeped out of the crack as they filled the pool and, rising through the dirt, *775 forced mud in through the crack at the void. He testified that the installation of the plug would not matter. There must have been water escaping while the pool was being filled, because if there had been water under the pool before they began to fill it, the hydrostatic pressure of that water would have forced it through the crack while it was empty.
He testified that a water drop of a foot and a half per day would have to be caused by a leak and is a very substantial water loss. He opined that the water was leaking as the pool was being refilled and caused the hydrostatic pressure to force the pool out of the ground. He further opined that the leak resulted from faulty construction.
The defendants introduced virtually no testimony contradicting the testimony of these witnesses. Under these circumstances, we cannot say that the evidence preponderates against the findings of the trial court. This issue is without merit.
The second issue presented for review is:
Issue No. 2: Whether the trial court can award damages over and above the contract price when there was no showing that damages above the contract were caused by the Appellants.
The trial court awarded the plaintiff $33,000 which was the amount plaintiff paid Brewers Pool and Landscaping Company to repair the pool. Plaintiff was also awarded $1,950 to compensate for the excess chemicals used while the pool was leaking.
Appellant contends that the trial court erred in making an award in excess of the original contract amount. The original contract was for $16,000. Additionally, the defendants were paid substantial amounts for other work including decking, fencing and a pool house yet the trial court's award of $34,950.00 exceeds the amount which the plaintiffs paid to the defendants for construction of this pool and its accessories.
The purpose of assessing damages in a breach of contract suit is to place the plaintiff, as nearly as possible, in the same position he would have had if the contract had been performed. Action Ads Inc. v. William B. Tanner Co. Inc., 592 S.W.2d 572, 575 (Tenn. App. 1979); see also Estate of Jessee v. White, 633 S.W.2d 767 (Tenn. App. 1982). If the defects in workmanship are so substantial that the performance of the contract made by the defendant is worthless, the contractor must pay the other party the cost of having the job redone. 22 Am.Jur.2d Damages § 68.
In this case, the plaintiff bargained for and is entitled to a functional swimming pool. Diana Hughes testified that she attempted to get the pool repaired, but was unable to do so. She was finally able to get Billy Brewer to undertake the job but only if the pool was replaced. Brewer testified:
... that the only way that I would do any thing to it and guarantee it is to be able to bust the deep bottom of that pool out and run new plumbing around it and cut the top off the pool where it had jacked out of the ground and put a pool inside the pool.
He testified that this was more expensive than building a new pool on a regular plot of ground would have been. No evidence was presented as to a less expensive method of repairing the pool. Because of the condition of plaintiff's property caused by the faulty construction, an award in excess of the contract price is appropriate.
The next issue presented for review is:
Issue No. 3. Whether warranties express or implied had expired in the instant case.
The argument in support of this issue consists solely of questions asked by appellant of this Court. Appellants point to no place in the record concerning proceedings involving this issue as required by Rule 6, Rules of the Court of Appeals. Moreover, appellants make no legal arguments and cite no supporting authorities. This issue will not be considered further by the Court.
The last issue presented for review is:
Issue No. 4. Whether the intervening act by Randy Brewer in installing a plug in the swimming pool caused any obligation *776 owed by appellants to appellee to end.
As we previously noted, the trial court found that faulty construction caused the damage for which plaintiff sought recovery, and from our review of the record the evidence does not preponderate against such findings.
Accordingly, the evidence does not preponderate against a finding that there was no intervening act which proximately caused the damages. This issue is without merit.
The judgment of the trial court is affirmed and this case is remanded to the trial court for such further proceedings as may be necessary. Costs of the appeal are assessed against the appellants.
TOMLIN, P.J. (W.S.), and HIGHERS, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590114/ | 972 So.2d 197 (2006)
S.R.
v.
STATE.
No. 4D05-2925.
District Court of Appeal of Florida, Fourth District.
June 14, 2006.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2586536/ | 226 P.3d 780 (2010)
168 Wash.2d 1004-1010
JACKOWSKI
v.
BORCHELT.
No. 83660-4.
Supreme Court of Washington, Department I.
February 9, 2010.
Disposition of Petition for Review Granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590214/ | 972 So. 2d 737 (2007)
Ex parte James Earl WALKER.
(In re James Earl Walker
v.
State of Alabama).
1041931.
Supreme Court of Alabama.
March 30, 2007.[*]
Rehearing Denied May 18, 2007.
*740 Charles Decker, Dothan, for petitioner.
Troy King, atty. gen., and. Michael Nunnelley, asst. atty. gen., for respondent.
STUART, Justice.
James Earl Walker was convicted of murder made capital because the murder was committed during the course of a first-degree burglary. See § 13A-5-40(a)(4), Ala.Code 1975. After a jury, by a vote of 12-0, recommended that Walker be sentenced to death, the trial court conducted its independent sentencing hearing, made specific findings of fact, and sentenced Walker to death.
The Court of Criminal Appeals affirmed Walker's conviction but remanded the case for the trial court to correct various deficiencies in its sentencing order. Walker v. State, 932 So. 2d 140 (Ala.Crim.App.2004), On return to remand, the Court of Criminal Appeals affirmed Walker's sentence of death. 932 So.2d at 160.
This Court granted certiorari review as to certain issues raised in Walker's petition concerning both the guilt phase and the sentencing phase of Walker's trial. We affirm.
Facts
The Court of Criminal Appeals provided a thorough recitation of the facts from the trial court's sentencing order, 932 So.2d at 145-46; therefore, we will provide only a summary of the evidence relevant to the issues before us.
The evidence tended to establish the following. In January 2000, Bessie Lee Thweatt, who was 87 years old, suffered multiple blunt-force injuries to her head, before she was fatally shot, at close range, in the head. The testimony indicated that Thweatt was alive during the infliction of the blunt-force-trauma injuries and that she suffered great pain before dying from the gunshot wound. Thweatt's body was found in her Houston County home, which had been ransacked.
Law-enforcement officers from the Houston County Sheriff's Department suspected Walker and Rex Allen Beckworth, residents of Etowah County, of the murder. Walker was arrested in Etowah County by Etowah County law-enforcement officers. During questioning in Etowah County by Houston County law-enforcement officers, Walker admitted to being outside Thweatt's house at the time of her murder. While Walker was being transported to Houston County from Etowah County, law-enforcement officers stopped at Thweatt's residence, and Walker gave a statement, which was videotaped, describing his version of the events on the night Thweatt was killed. According to Walker, he never entered Thweatt's house, and he ran from the area when he heard a gunshot.
*741 Discussion
We will address only the grounds raised in Walker's petition upon which certiorari review was granted. We note that in his brief to this Court, Walker expands the grounds to include additional grounds as to which we did not grant certiorari review. We will address those additional grounds only if we notice plain error.
A. Alleged violation of Batson v. Kentucky.
First, Walker contends that the trial court erred in concluding that he did not present a prima facie case of a violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and, consequently, in not requiring the State to provide race-neutral and gender-neutral reasons for its peremptory strikes. According to Walker, the trial court based its refusal to find a prima facie case of a Batson violation on the facts that Walker was a white male and three African-American females were seated on the jury.
The record reveals that the following occurred after the jury was selected:
"[Walker's counsel]: By my count, after jurors were taken off for cause, there was fifteen African-American members of the strike panel. The State has used the right of peremptory challenge to remove ten. We contend that [to be] a violation of the principles enunciated by the United States Supreme Court in Batson v. Kentucky and the Alabama Supreme Court in Ex parte Branch [, 526 So. 2d 609 (Ala.1987),] and Ex parte Thomas [, 659 So. 2d 3 (Ala.1994),] and other cases of similar import.
"THE COURT: Do you have any evidence you want to present in that regard?
"[Walker's counsel]: Nothing beyond the numerical disparity, Your Honor. "THE COURT: Let the record reflect that the defendant is a white male and that there are three African[-American] females on the jury. Any response from the State?
"[Prosecutor]: Judge all they have given you is the numbers. The Defendant is white. He has not come forward with any questionnaires that we didn't ask questions on the ones we struck. We have reasons. Just numbers is not enough. You asked for evidence.
"THE COURT: Do you have anything else?
"[Walker's counsel]: Nothing further.
"THE COURT: Okay. Generally, it has been my practice to make the State go forward. The Defendant, as I said, is a white male and there are three African-American females on this jury. The Court finds that the Defendant has failed to prove a prima facie case."
This Court has stated:
"The burden of persuasion is initially on the party alleging discriminatory use of a peremptory challenge to establish a prima facie case of discrimination. In determining whether there is a prima facie case, the court is to consider `all relevant circumstances' which could lead to an inference of discrimination."
Ex parte Branch, 526 So. 2d 609, 622 (Ala. 1987). An objection based on numbers alone, however, does not support the finding of a prima face case of discrimination and is not sufficient to shift the burden to the other party to explain its peremptory strikes. Ex parte Trawick, 698 So. 2d 162 (Ala.1997).
Here, the trial court did not err in holding that Walker did not present a prima facie case of discriminatory use of peremptory strikes by the State. Walker's objection was based totally on the number of African-Americans the State struck from the jury. When the trial court asked for facts or evidence to support the objection, Walker was unable to provide any. The trial court properly concluded that Walker *742 had not presented a prima facie case of discriminatory use of peremptory strikes.
Moreover, Walker does not establish a conflict between the trial court's holding that he did not present a prima facie case and the holding of the United States Supreme Court in Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). In Powers, the United States Supreme Court stated: "A criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same races." 499 U.S. at 402, 111 S. Ct. 1364. Walker argues that the trial court's statements on the record that Walker was white and that three African-American females were ultimately seated on the jury provides evidence indicating that the trial court based its ruling on an improper ground. We disagree. Our reading of the statements in the context of the record leads us to conclude that the trial court, in light of the fact that Walker offered no evidence to support his objection, was merely trying to establish a few facts in the record to reflect the makeup of the jury. Thus, Walker has not established a conflict between the trial court's ruling and the Supreme Court's holding in Powers.
Lastly, Walker asks this Court to review the record and conclude that plain error occurred because, he says, the record evidences that the State engaged in a discriminatory use of its peremptory strikes. Although he did not object on this basis in the trial court, he now argues that the State" failed to strike prospective male and white jurors for the same reasons it used to strike prospective female and African-American jurors. To support his argument, Walker points out what he says is evidence of disparate treatment of venire-members during the voir dire.
Plain error is
"error that is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings. Ex parte Taylor, 666 So. 2d 73 (Ala.1995). The, plain error standard applies only where a particularly egregious error occurred at trial and that error has or probably has substantially prejudiced the defendant. Taylor."
Ex parte Trawick, 698 So.2d at 167.
Moreover,
"`"[for plain error to exist in, the Batson context, the record must raise an inference that the state [or the defendant] engaged in `purposeful discrimination' in the exercise of its peremptory challenges, See Ex parte Watkins, 509 So. 2d 1074 (Ala.), cert. denied, 484 U.S. 918, 108 S. Ct. 269, 98 L. Ed. 2d 226 (1987)."'"
Smith v. State, 756 So. 2d 892, 915 (Ala. Crim.App.1998), aff'd, 756 So. 2d 957 (Ala. 2000) (quoting Rieber v. State, 663 So. 2d 985, 991 (Ala.Crim.App.1994), quoting in turn other cases).
We find no plain error in regard to this issue. When the. State exercised its peremptory strikes, it had before it both the jurors' answers to questions on voir dire and their answers to the juror questionnaire as a basis for its peremptory strikes.[1] The questionnaires were not included in the appellate record. See Rule 10(a)(6), Ala. R.App. P. However, pursuant to Rule *743 18.2(b), Ala. R.Crim. P., we requested the circuit court to forward to us the relevant juror questionnaires to allow us to determine if the record supports an inference that the State engaged in purposeful discrimination in its exercise of its peremptory strikes. See Blackmon v. State, [Ms. CR-01-2126, August 25, 2006] ___ So.2d ___, ___ (Ala.Crim.App.2005) (opinion on application for rehearing) (in which the Court of Criminal Appeals requested the circuit clerk, pursuant to Rule 18.2(b), Ala. R.Crim. P., to forward to it juror questionnaires and then conducted a plain-error review of an alleged Batson violation).
We have carefully reviewed the record and the relevant juror questionnaires to determine whether an inference can be drawn that the State engaged in purposeful discrimination against African-Americans and females.[2] There is no inference of purposeful discrimination by the State in its exercise of its peremptory strikes; therefore, no plain error exists in this regard.
B. Alleged improper jury instruction on the balancing of aggravating and mitigating circumstances in determining sentence.
Walker next contends that the trial court committed plain error in its instruction to the jury on the balancing of the aggravating and mitigating circumstances in determining his sentence. According to Walker, the trial court's instruction mirrors the instruction this Court held to be plain error in Ex parte Bryant, [Ms. 1990901, June 21, 2002] 951 So. 2d 724, 727 (Ala.2002).
In Ex parte Bryant, this Court held that the trial court committed plain error when during the penalty-phase instructions to the jury it invited the jury to recommend a sentence of death without finding the existence of any aggravating circumstance. We held that the following instruction by the trial court constituted reversible error:
"`I charge you, members of the jury; that if you do not find that an alleged aggravating circumstance was proved, that does not automatically or necessarily mean that you should sentence Mr. Bryant to death by electrocution, instead such a finding only means that you must consider other factors, more specifically mitigating circumstances, before deciding whether a sentence of life in prison or death by electrocution is present.'"
951 So.2d at 727. As this Court explained in Ex parte McNabb, 887 So. 2d 998 (Ala. 2004), it was the court's invitation in Ex parte Bryant to recommend a sentence of death without finding any aggravating circumstance that was plain error.
We have reviewed the trial court's penalty-phase instruction in this case, and we conclude that the trial court's instruction did not constitute plain error; the trial court did not invite the jury in Walker's case to recommend a sentence of death without finding any aggravating circumstance. The trial court's penalty-phase instruction here with regard to the statements of law concerning the balancing of the aggravating and mitigating circumstances is identical to the penalty-phase instruction given by the trial court in Ex *744 parte McNabb, 887 So.2d at 1000-03. As we concluded in Ex parte McNabb,
"although the court did not Specifically instruct the jury what to do if it found the mitigating and aggravating circumstances equally balanced, we cannot conclude, considering the charge in its entirety, that the error `seriously affected] the fairness, integrity or public reputation of [these] judicial proceedings,' Ex parte Davis, 718 So.2d [1166] at 1173-74 [(Ala.1998)], so as to require reversal of the sentence."
887 So.2d at 1004.
No plain error exists in Walker's trial in this regard.
C. Claims of alleged prosecutorial misconduct.
Walker contends that the prosecutor engaged in misconduct that denied him a fair trial and an accurate sentence determination. Walker did not object at trial to any of the alleged misconduct he now raises before us. Therefore, he must establish plain error.
"In Berger v. United States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314 (1935), the United States Supreme Court stated the following concerning a prosecutor's responsibility:
"`The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigorindeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
"`It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.'
"295 U.S. at 88, 55 S. Ct. 629. `"A prosecutor's statement must be viewed in the context of all of the evidence presented and in the context of the complete closing arguments to the jury."' Reeves v. State, 807 So. 2d 18, 44-45 (Ala.Crim.App.2000), cert. denied, 534 U.S. 1026, 122 S. Ct. 558, 151 L. Ed. 2d 433 (2001), quoting Roberts v. State, 735 So. 2d 1244, 1253 (Ala.Crim.App.1997). The standard for evaluating the propriety of a prosecutor's argument is whether the argument `so infected the trial with unfairness as to make the resulting conviction a denial of due process.' Darden v. Wainwright, 477 U.S. 168, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986).
"`"A prosecutor may argue in closing any evidence that was presented at trial. He may also `"present his impressions from the evidence. He may argue every matter of legitimate inference and may examine, collate, sift, and treat the evidence in his own way."' Williams v. State, 601 So. 2d 1062, 1073 (Ala.Cr.App.1991), aff'd without opinion, 662 So. 2d 929 (Ala. 1992), quoting Donahoo v. State, 505 So. 2d 1067, 1073."' *745 "Broadnax v. State, 825 So. 2d 134, 208 (Ala.Crim.App.2000), quoting Williams v. State, 627 So. 2d 994 (Ala.Crim.App. 1992), aff'd, 627 So. 2d 999 (Ala.1993)."
Turner v. State, 924 So. 2d 737, 766-67 (Ala.Crim.App.2002).
First, Walker maintains that the prosecutor improperly vouched for the credibility of a witness for the State. The State presented testimony from Timothy Byrd, a former cell mate of Walker's, who testified that Walker admitted to him that he shot Thweatt. During Byrd's testimony, the State and Walker elicited testimony from Byrd' that he had repeatedly petitioned the court and the district attorney for leniency in his sentences. The prosecutor, when questioning Byrd on redirect examination and later on cross-examination when Byrd was called as a witness for the defense, asked questions attempting to establish that the prosecutor's office did not at any time support a lenient sentence for Byrd. Additionally, the prosecutor elicited testimony from Byrd that indicated that by testifying Byrd had placed his safety in danger if he was sent back to prison. Walker consistently asked questions attacking Byrd's credibility and tending to establish the inference that Byrd was biased in favor of the State and had received a lesser sentence in exchange for his testimony. During closing argument the prosecutor stated:
"We called Tim Byrd. . . . You don't believe the District Attorney; I knew about the prior conviction. You don't believe I know he wrote me a letter? You don't believe your DA who you are looking at, that you elected. . . . But didn't make no deals."
Additionally, the prosecutor commented that Byrd testified against Walker because "Where is nothing more evil and wicked in this community than [Walker] and Beckworth."
The law concerning a prosecutor's vouching for the credibility of a witness is well settled.
"A distinction must be made between an argument by the prosecutor personally vouching for a witness, thereby bolstering the credibility of the witness, and an argument concerning the credibility of a witness based upon the testimony presented at trial. `[P]rosecutors must avoid making personal guarantees as to the credibility of the state's witnesses.' Ex parte Parker, 610 So. 2d 1181 (Ala.1992). See Ex parte Waldrop, 459 Sold 959, 961 (Ala.1984), cert. denied, 471 U.S. 1030, 105 S. Ct. 2050, 85 L. Ed. 2d 323 (1985).
"`"Attempts to bolster a witness by vouching for his credibility are normally improper and error." . . . The test for improper vouching is whether the jury could reasonably believe that the prosecutor was indicating a personal belief in the witness' credibility. . . . This test may be satisfied in two ways. First, the prosecution may place the prestige of the government behind the witness, by making explicit personal assurances of the witness' veracity. . . . Secondly, a prosecutor may implicitly vouch for the witness' veracity by indicating that information not presented to the jury supports the testimony.'
"United States v. Sims, 719 F.2d 375, 377 (11th Cir.1983), cert. denied, 465 U.S. 1034, 104 S. Ct. 1304, 79 L. Ed. 2d 703 (1984)."
DeBruce v. State, 651 So. 2d 599, 610-11 (Ala.Crim.App.1993), aff'd, 651 So. 2d 624 (Ala.1994).
Reading the prosecutor's comments in context and considering them in light of the entire record, we do not find plain error. Even if we were to conclude that the prosecutor vouched for the veracity of *746 Byrd's testimony or placed the weight of the State behind Byrd's testimony and that in doing so erred, we cannot conclude that the statements when read in light of the entirety of the record affected the fairness of Walker's trial. See Turner, supra. Therefore, the record does not establish plain error.[3]
Walker further contends that the prosecutor improperly expressed his opinion that Walker deserved to be found guilty of capital murder and to be sentenced to death. Walker directs this Court to the following statements made by the prosecutor during closing arguments:
"The State has an interest in this case. The law has passed certain circumstances where the State can prosecute people who commit the most evil, wicked, heinous type crimes in this community and this is one.
". . . .
"This is the worst case. Children, elderly people need protection. This is the worst of the worst. Do not make a mistake on this case."
Additionally, Walker provides a "grocery list" of alleged misconduct during the prosecutor's closing argument, including that the prosecutor improperly: argued that Walker lacked self control; asked the jury to send a "message" to the community; compared Walker's rights to the rights of the victim; urged the jury to consider Thweatt's age and position, in the community when determining Walker's sentence; and injected religion into the trial.
As the Court of Criminal Appeals has held:
"`It is not enough that a prosecutor's comment in closing arguments was undesirable or even universally condemned; the question instead is whether the comment "so infected the trial' with unfairness as to make the resulting conviction a denial of due process." Burton [v. State], 651 So.2d [641,] 651 [(Ala.Cr.App.1993), aff'd, 651 So. 2d 659 (Ala.1994)], quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986).
"` . . . [A]s we have previously stated, a prosecutor's comment must be viewed as delivered in the heat of debate, and, as such, is usually valued by the jury at its true worth. "`[W]e must not lose sight of the fact that a trial is a legal battle, a combat in a sense, and not a parlor social affair. The solicitor is yet under duty to prosecute with earnestness and vigor to strike hard blows, but not foul ones.' Berger v. United States, [295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314 (1935) ]." Taylor [v. State], 666 So.2d [36,] 64 [(Ala.Cr.App.1994)], quoting Arant v. State, 232 Ala. 275, 280, 167 So. 540, 544 (1936).'
"Melson v. State, 775 So. 2d 857, 885 (Ala.Crim.App.1999), aff'd, 775 So. 2d 904 (Ala.2000).
". . . Retribution is a proper subject of prosecutorial argument. Perkins v. State, 808 So. 2d 1041 (Ala.Crim.App. 1999); McWilliams v. State, 640 So. 2d 982, 1001 (Ala.Crim.App.1991), aff'd in pertinent part, rem'd, 640 So. 2d 1015 (Ala.1993). See also Price v. State, 725 So. 2d 1003, 1033 (Ala.Crim.App. 1997) (there is no impropriety in a prosecutor's appeal to the jury for justice); Kuenzel v. State, 577 So. 2d 474, 498 (Ala.Crim.App.1990) (retribution is a valid consideration in sentencing) (quoting Johnson v. Wainwright, 778 F.2d 623, *747 630 (11th Cir.1985)), aff'd, 577 So. 2d 531 (Ala.1991)."
Smith v. State, [Ms. CR-97-1258, December 22, 2000] ___ So.2d ___, ___ (Ala. Crim.App.2000), rev'd in part on other grounds, [Ms. 1010267, March 14, 2003]' ___ So.2d ___ (Ala.2003).
We have reviewed in their entirety the prosecutor's arguments' Walker says improperly expressed the opinion that Walker deserved to be found guilty." [U]rging the jury to render a verdict in such a manner as to punish the crime, protect the public from similar offenses, and deter others from committing similar offenses is not improper argument." Sockwell v. State, 675 So. 2d 4, 36 (Ala. Crim.App.1993). Many of the comments were replies-in-kind to Walker's arguments and legitimate inferences from the record. Additionally, the comments were delivered in the heat of debate. No plain error exists.
Walker also contends that during the guilt phase of his trial, the prosecutor improperly argued facts not in evidence, demonstrated how the attack on Thweatt occurred, and improperly informed the jury that Walker was known to a law-enforcement officer before the offense for which he was being tried occurred. After reviewing the testimony and the arguments, we conclude that no plain error occurred in this regard. Although some of the prosecutor's statements were questionable, the prosecutor's argument did not "`so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process.'" Turner, 924 So.2d at 767 (quoting Darden v. Wainwright, 477 U.S. 168, 169, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986)).
Next, Walker contends that the prosecutor improperly presented victim-impact evidence and argument during the guilt phase of his trial. During his opening argument, the prosecutor provided some factual information about Thweatt, including her age, her family history, her activities in the community, and her character. Additionally, the State presented testimony from one of Thweatt's daughters and a friend.
In Ex parte Rieber, 663 So. 2d 999, 1006 (Ala.1995), this Court held:
"It is presumed that jurors do not leave their common sense at the courthouse door. It would elevate form over substance for us to hold, based on the record before us, that [the defendant] did not receive a fair trial simply because the jurors were told what they probably had already suspectedthat [the victim] was not a `human island,' but a unique individual whose murder had inevitably had a profound impact on her children, spouse, parents, friends, or dependents (paraphrasing a portion of Justice Souter's opinion concurring in the judgment in Payne v. Tennessee, 501 U.S. 808, 838, 111 S. Ct. 2597, 2615, 115 L. Ed. 2d 720 (1991))."
Although portions of the argument and testimony during the guilt phase of Walker's trial may have been inappropriate, we unequivocally conclude that the testimony and the argument had no prejudicial impact on Walker's trial. Cf. Calhoun v. State, 932 So. 2d 923, 968-69 (Ala.Crim. App.2005), and the cases cited therein, holding that the improper admission of victim-impact evidence during the guilt phase did not constitute reversible error.
Finally, Walker contends that the cumulative effect of the alleged instances of prosecutorial misconduct deprived him of due process and a fair trial. Because Walker has not demonstrated that his claims of prosecutorial misconduct are any stronger when the instances of misconduct are considered cumulatively, we find no error. See Ex parte Slaton, 680 So. 2d 909, 918 (Ala.1996).
*748 D. Alleged improper admission into evidence of Walker's statement.
Walker contends that the trial court committed reversible error when it admitted the videotaped statement he made at Thweatt's house. According to Walker, because the record does not establish that the State had probable cause to arrest him and the State did not produce evidence of probable cause at the suppression hearing, his arrest was unlawful and his videotaped statement made subsequent to his arrest was inadmissible as the fruit of the poisonous tree.
The record indicates that on June 22, 23, and 27, 2000, while Walker was being detained by the Etowah County Sheriff's Department, Houston County law-enforcement officers questioned Walker about Thweatt's murder. The record also indicates that on June 28, 2000, the Etowah County Sheriff's Department released Walker into the custody of Houston. County law-enforcement officers, who transported Walker from Etowah County to the Houston County jail. While Walker was being transported, the Houston County law-enforcement officers and Walker stopped at the scene of the murder, and Walker made a videotaped statement detailing facts about the murder. Walker was indicted on September 1, 2000, for capital murder for the killing of Thweatt. The record does not indicate that Walker requested a preliminary hearing between June 28, 2000, and September 1, 2000.
On October 28, 2002, Walker filed a "motion to dismiss or remand the indictment." In his motion, Walker alleged various defects in the indictment, but he did not allege that the indictment was not supported, by probable cause. The trial court denied the motion without conducting a hearing.
Additionally, on October 28, 2002, Walker filed a motion to suppress his statement made to the Houston County law-enforcement officers because, he said, among other grounds, it was obtained subsequent to an arrest not supported by probable cause. Specifically, he stated that "[he] was seized and interrogated on less than probable cause, in violation of [his] Fourth and Fourteenth Amendment rights." Walker's motion to suppress did not contain any facts supporting his allegation, nor did he attach an affidavit containing supporting facts.
On February 19, 2003, the trial court conducted a hearing on Walker's motion to suppress. The State presented evidence concerning the voluntariness of Walker's statement but did not present evidence concerning probable cause to support Walker's arrest. At the hearing, Walker did not pursue his allegation that his arrest was not supported by probable cause. Although his counsel actively participated in the hearing and cross-examined the State's witnesses, Walker's counsel did not argue to the trial court that Walker's arrest was not supported by probable cause. Additionally, he did not ask the trial court to reconsider its denial of his motion to suppress in light of his allegation that his arrest was unlawful; he did not object at trial on this ground when his statement was admitted; he did not present this objection in his motion for a new trial; and he did not present this objection to the Court of Criminal Appeals. Thus, the record on its face establishes that at the suppression hearing, at trial, and on appeal to the Court of Criminal Appeals, Walker, by his silence, abandoned this allegation and waived his objection to the admission of his statement on this ground. See Burks v. State, 600 So. 2d 374, 381 (Ala. Crim.App.1991) ("It appears that the issue of probable cause for arrest was never raised or litigated at trial and is not preserved for review by this Court.").
*749 Walker's waiver of the alleged error, however, does not preclude our review because Walker was indicted for capital murder and was sentenced to death, see Rule 39(a)(2)(D), Ala. R.App. P. Walker's waiver, however, weighs heavily against a finding of plain error.
"`The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985), the plain-error doctrine applies only if the error is "particularly egregious" and if it "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." See Ex parte Price, 725 So. 2d 1063 (Ala.1998), cert. denied, 526 U.S. 1133, 119 S. Ct. 1809, 143 L. Ed. 2d 1012 (1999); Burgess v. State, 723 So. 2d 742 (Ala.Cr. App.1997), aff'd, 723 So. 2d 770 (Ala. 1998), cert. denied, 526 U.S. 1052, 119 S. Ct. 1360, 143 L. Ed. 2d 521 (1999); Johnson v. State, 620 So. 2d 679, 701 (Ala.Cr.App.1992), rev'd on other grounds, 620 So. 2d 709 (Ala.1993), on remand, 620 So. 2d 714 (Ala.Cr.App.), cert. denied, 510 U.S. 905, 114 S. Ct. 285, 126 L. Ed. 2d 235 (1993).'
"Hall v. State, 820 So. 2d 113, 121-22 (Ala.Crim.App.1999), aff'd, 820 So. 2d 152 (Ala.2001), cert. denied, 535 U.S. 1080, 122 S. Ct. 1966, 152 L. Ed. 2d 1025 (2002).
"`"The narrowness of the plain error rule is a reflection of the importance, indeed necessity, of the contemporaneous objection rule to which it is an exception. . . .
"`"The contemporaneous objection rule . . . promotes the salutary interest of making the trial the main event. Failure to enforce it `tends to detract from the perception of the trial of a criminal case . . . as a decisive and portentous event.' Wainwright v. Sykes, 433 U.S. 72, 90 (1977). Moreover, requiring timely objections allows the trial courts to develop a full record on the issue, consider the matter, and correct any error before substantial judicial resources are wasted on appeal and then in an unnecessary retrial. See United States v. Sorondo, 845 F.2d 945, 948-49 (11th Cir.1988). A full record and, a prior decision in the district court are essential ingredients to our substantive review of the issuesthey flesh out an issue in a way the parties' briefs may not.
"`"`In the absence of plain error . . . it is not our place as an appellate court to second guess the litigants before us and grant them relief they did not request, pursuant to legal theories they did not outline, based on facts they did not relate.' Adler v. Duval County School Bd., 112 F.3d 1475, 1481 n. 12 (11th Cir.1997). Because the contemporaneous objection rule is essential to the integrity and efficiency of our judicial process, we have stressed that `the plain error test is difficult to meet.' United States v. King, 73 F.3d 1564, 1572 (11th Cir.1996); accord, e.g., United States v. Sorondo, 845 F.2d at 948-49; United States v. Chaney, 662 F.2d 1148, 1152 n. 4 (5th Cir. Unit B 1981)."
"`United States v. Pielago, 135 F.3d 703, 709 (11th Cir.1998).
"`"While the plain error doctrine lessens the blow of a rigid application of the contemporaneous objection requirement, it is to be used sparingly, since the unwarranted extension of the exacting definition *750 of plain error would skew the rule's careful balancing of the need to encourage all trial participants to seek a fair and accurate trial the first time around against the insistence that obvious injustice be promptly redressed. Reviewing courts are not to use the plain error doctrine to consider trial court errors not meriting appellate review absent timely objection."
"`5 Am.Jur.2d Appellate Review § 767, p. 437 (1995). See also Ex parte Woodall, 730 So. 2d 652, 657 (Ala.1998) (the plain-error exception is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result") (internal quotes and citations omitted [in Thomas]).
"`One of the factors for the reviewing court to consider in its determination of whether an alleged error constitutes plain error is "whether a proper and timely objection at trial would have cured the error or would have enabled the trial court to prevent injustice." 5 Am.Jur.2d, supra, at § 774, p. 443-45 (footnotes omitted). "[T]he doctrine [of plain error] is less likely to be applied where the error could have been readily corrected by an objection at trial, or where such an objection may have led the government to introduce additional evidence on the issue." Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 27.5(d), p. 1160 (2nd ed.1992). See, e.g., United States v. Hayes, 589 F.2d 811, 825 (5th Cir.) ("[The plain-error rule] will not be used to allow counsel for the defendant to gamble first on acquittal and then, upon conviction, to raise on appeal any matters which could have been easily remedied at trial."), cert. denied, 444 U.S. 847, 100 S. Ct. 93, 62 L. Ed. 2d 60 (1979). See also Jones v. United States, 527 U.S. 373, 386, 119 S. Ct. 2090, 144 L. Ed. 2d 370 (1999) (preservation-of-error requirements "enable a trial court to correct any instructional mistakes before the jury retires and in that way help to avoid the burdens of an unnecessary retrial"). . . . '
"Thomas v. State, 824 So. 2d 1, 14-15 (Ala.Crim.App.1999)."
Clark v. State, 896 So. 2d 584, 622-24 (Ala.Crim.App.2000) (final bracketed language added).
Under the principles of the plain-error doctrine set forth in Clark, the fact that Walker, in his motion to suppress, made a bare allegation that his arrest was not supported by probable cause and then failed to pursue his objection to the statement on that basis at the suppression hearing, at trial, and in subsequent pleadings weighs heavily against a finding of plain error.
In light of the facts in this case, we reject the assertion that once Walker made this allegation in his motion to suppress, he had no additional burden in presenting this issue to the trial court at the suppression hearing. Walker's allegation in his motion contained no supporting facts to establish that Walker had been arrested without probable cause. Therefore, it was an allegation based on speculation and conjecture. The trial court conducted a hearing, at which Walker could have pursued this legal theory, objected to the State's alleged lack of evidence of probable cause to arrest, presented evidence to support his allegation, and argued that the lack of evidence required that his statement be suppressed. Walker, however, remained silent; he did not pursue this issue in the trial court; and he did not allow the trial court the opportunity to prevent the alleged injustice. See Adams v. State, 585 So. 2d 161, 164 (Ala.1991) ("Matters not objected to at trial cannot be considered for *751 the first time on appeal, since review on appeal applies only to rulings by the trial court."). Cf. Coulliette v. State, 857 So. 2d 793, 795 (Ala.2003) (holding that because a specific argument raised on appeal was not presented at suppression hearing, "`[t]he motion [to suppress] did not give the trial court notice of the specific issues [the defendant] . . . raise[d] in his [appellate] brief. . . . Therefore, the trial court did not have the opportunity to rectify these alleged errors. . . . [The defendant's] motion was not sufficient to preserve the issues presented by [him] in his brief.'" (quoting Acree v. State, 673 So. 2d 855, 856 (Ala. Crim.App.1995))). Walker's silence and abandonment of this ground in the trial court essentially allowed Walker to "`gamble first on acquittal and then, upon conviction, to raise on appeal [an issue] which could have been easily remedied at trial.'" Clark, 896 So.2d at 624 (quoting United States v. Hayes, 589 F.2d 811, 825 (5th Cir.1979)). This fact weighs heavily against Walker.
In defining plain error, this Court has adopted principles established by the United States Supreme Court in applying the federal plain-error rule. In Ex parte Womack, 435 So. 2d 766, 769 (Ala.1983), this Court, following those principles, stated: "`"Plain error" only arises if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.'" In United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993), the United States Supreme Court held that for an error to constitute plain error the error must be "plain" and must affect the defendant's "substantial rights." The United States Supreme Court explained:
"[The plain-error rule] defines a single category of forfeited-but-reversible error. Although it is possible to read the Rule in the disjunctive, as creating two separate categories`plain errors' and `defects affecting substantial rights' that reading is surely wrong. See [United States v.] Young, 470 U.S. [1], at 15, n. 12 [(1985)] (declining to adopt disjunctive reading). As we explained in Young, the phrase `error or defect' is more simply read as `error.' Ibid. The forfeited error `may be noticed' only if it is `plain' and `affect[s] substantial rights.' More precisely, a court of appeals may correct the error (either vacating for a new trial, or reversing outright) only if it meets these criteria. . . .
"The first limitation on appellate authority under [the plain-error rule] is that there indeed be an `error.' Deviation from a legal rule is `error' unless the rule has been waived. For example, a defendant who knowingly and voluntarily pleads guilty in conformity with the requirements of Rule 11[, Fed. R.Crim.P.,] cannot have his conviction vacated by court of appeals on the grounds that he ought to have had a trial. Because the right to trial is waivable, and because the defendant who enters a valid guilty plea waives that right, his conviction without a trial is not `error.'
"Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the `intentional relinquishment or abandonment of a known right.' . . . Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake. . . . Mere forfeiture, as opposed to waiver, does not extinguish an `error' under [the plain-error rule]. Although in theory it could be argued that `[i]f the question was not presented to the trial court no error was committed by the trial court, hence there is nothing to review,' *752 . . . this is not the theory that [the plain-error rule] adopts. If a legal rule was violated during the district court proceedings, and if the defendant did not waive the rule, then there has been an `error' within the meaning of [the plain-error rule] despite the absence of a timely objection.
"The second limitation on appellate authority under [the plain-error rule] is that the error be `plain.' `Plain' is synonymous with `clear' or, equivalently, `obvious.'
"The third and final limitation on appellate authority under [the plain-error rule] is that the plain error `affec[t] substantial rights.' This is the same language employed in [the harmless-error rule], and in most cases it means that the error must have been prejudicial: It must have affected the outcome of the . . . court proceedings. . . . When the defendant has made a timely objection to an error and [the harmless-error rule] applies, a court of appeals normally engages in a specific analysis of the district court recorda so-called `harmless error' inquiryto determine whether the error was prejudicial. [The plain-error rule] normally requires the same kind of inquiry, with one important difference: It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice. In most cases, a court of appeals cannot correct the forfeited error unless the defendant shows that the error was prejudicial. See Young, supra, 470 U.S., at 17, n. 14 (`[F]ederal courts have consistently interpreted the plain-error doctrine as requiring an appellate court to find that the claimed error . . . had [a] prejudicial impact on the jury's deliberations'). This burden shifting is dictated by a subtle but important difference in language between the two parts of Rule 52: While [the harmless-error rule] precludes error correction only if the error `does not affect substantial rights' (emphasis added), [the plain-error rule] authorizes no remedy unless the error does `affec[t] substantial rights.'"
507 U.S. at 731-35, 113 S. Ct. 1770.
Thus, to find plain error, this Court must conclude that the trial court erred in admitting Walker's videotaped statement because the statement was made subsequent to an arrest not supported by probable cause, that the error is obvious on the face of the record, and that the error affected his substantial rights.
In George v. State, 717 So. 2d 827, 837 (Ala.Crim.App.1996), rev'd on other grounds, 717 So. 2d 844 (Ala.1996), the Court of Criminal Appeals confronted facts similar to those in this case, stating:
"The appellant contends that the trial court erred when it received into evidence certain items seized as a result of the appellant's arrest without first requiring the state to prove the legality of the appellant's arrest. The appellant did not challenge the validity of his arrest at trial. Thus, we must evaluate this contention under the plain error doctrine. Rule 45A, Ala. R.App. P.; Haney [v. State, 603 So. 2d 368 (Ala. Crim.App.1991)].
"Both the indictment and the arrest warrant are contained in the record. `"On the question of probable cause, it is well established that the indictment itself, together with proof that the defendant is the one named in it, is prima facie evidence of probable cause."' Roynica v. State, 54 Ala.App. 436, 441, 309 So. 2d 475, 478-79 (1974), cert. denied, 293 Ala. 772, 309 So. 2d 485 (Ala.), cert. denied, 423 U.S. 858, 96 S. Ct. 111, 46 L. Ed. 2d 85 (1975), quoting United States v. Mayer, 22 F.2d 827 (D.C.1927). There is no evidence in the record to support a finding that the appellant's *753 arrest was in any way unlawful. The trial court did not err."
Based on the record before us, we cannot conclude that the trial court erred in admitting Walker's videotaped statement into evidence. Although the record does not contain a copy of the arrest warrant as did the record in George, it does, contain a copy of the indictment and evidence indicating that Walker is the person named in the indictment. Thus, at the time the trial court conducted the hearing on Walker's motion to suppress, the indictment provided prima facie evidence of probable cause that Walker had committed the offense charged. Although the probable cause supporting the indictment against Walker does not establish probable cause to support Walker's arrest, see Rios v. United States, 364 U.S. 253, 80 S. Ct. 1431, 4 L. Ed. 2d 1688 (1960), the issuance of the indictment established that there was evidence of probable cause to support the charge against Walker. Consequently, Walker had an obligation to present the trial court with more than a mere allegation that there was no probable cause to support his arrest to warrant further inquiry and suppression of the statement. Cf. Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969) (recognizing that the initial burden is upon the party seeking suppression of the evidence to go forward with specific facts demonstrating that the evidence is tainted). Indeed, nothing in the record suggests that Walker's arrest was not supported by probable cause or that the evidence Walker sought to suppress was gotten illegally. In light of these facts and in light of Walker's failure to pursue his contention at the hearing, we cannot conclude that the trial court erred in admitting Walker's videotaped statement without requiring the State to present additional evidence of probable cause.
Additionally, the alleged error is not plain because plain error must be obvious on the face of the record. A silent record, that is a record that on its face contains no evidence to support the alleged error, does not establish an obvious error. Our precedent holds that the record must at least present an inference of error before an appellate court will hold that reversible error occurred. For example, in Ex parte Watkins, 509 So. 2d 1074 (Ala. 1987), this Court conducted a plain-error review of an alleged violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) (addressing a constitutional violation with regard to discrimination in jury selection). We stated:
"Because this issue is raised for the first time on appeal, the defendant has requested that we review the record under our plain error rule, Rule 39(k), Ala. R.App. P., and remand for further proceedings, as we did in [Ex parte] Jackson, [516 So. 2d 768 (Ala.1986)]. However, we have carefully reviewed the record in this respect and we cannot find any plain error. Although the record does show that the defendant is black and the victim was white, it does not show that the state exercised any of its peremptory challenges to remove prospective black jurors from the venire. The record as a whole simply does not raise an inference that the state was engaged in the practice of purposeful discrimination. Under the plain error rule this Court will `notice any plain error or defect in the proceeding under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial rights of the petitioner.' (Emphasis added.) Rule 39(k), supra. The defendant cannot successfully argue that error is plain in the record *754 when there is no indication in the record that the act upon which error is predicated ever occurred (i.e., the state's use of its peremptory challenges to exclude blacks). In both Jackson and [Ex parte] Godbolt[, 546 So. 2d 991 (Ala. 1987),] the records were sufficient to show that prima facie cases of purposeful discrimination could be made by the defendants; therefore, those cases were remanded for determinations on the issue under the guidelines set out in Batson."
509 So.2d at 1076-77 (second emphasis added). Thus, the Watkins Court established that when nothing in the record supports the bare allegation that a constitutional violation occurred, a court cannot find plain error. See also White v. State, 587 So. 2d 1218 (Ala.Crim.App.1990), aff'd, 587 So. 2d 1236 (Ala.1991) (holding that a Batson claim could not be addressed on appeal when the record did not even raise the inference of unconstitutional jury selection). Cf. Brooks v. State, 929 So. 2d 491 (Ala.Crim.App.2005) (holding that an ambiguous or silent record will not support a claim of ineffective assistance of counsel).
In another analogous situation, this Court held that a bare allegation in a motion was sufficient to notice error and warrant further review only because the record affirmatively reflected the alleged error. In Ex parte Jefferson, 749 So. 2d 406 (Ala.1999), this Court addressed Jefferson's ineffective-assistance-of-counsel claim, made in his motion for a new trial. Jefferson pleaded guilty to possession of a controlled substance. He filed a motion for a new trial, arguing that his counsel had been ineffective. His motion did not set forth any facts supporting his claim. The Court of Criminal Appeals held that because the motion for a new trial raised only a general claim of ineffective assistance of counsel, the claim was not properly presented to the trial court or preserved for appellate review. In his petition for a writ of certiorari to this Court, Jefferson contended that facts in the record supported his motion and, therefore, that he was not required to make a more specific assertion. See Hill v. State, 675 So. 2d 484 (Ala.Crim.App.1995) (holding that when the grounds stated in the motion for a new trial are evident in the record a hearing is warranted even though the motion is not supported by affidavits or other extrinsic evidence). Jefferson argued that the record on its face established that his counsel was ineffective for failing to investigate whether the substance found in his possession was a controlled substance and allowing him to plead guilty to possession of a controlled substance, because the toxicology report, which was in the record, indicated that the substance found in his possession was not a controlled substance. This Court held that because the record on appeal affirmatively reflected that Jefferson's trial counsel's performance had been deficient, there was no need for a more specific allegation in his motion; the issue was properly preserved for appellate review; and the Court of Criminal Appeals erred in not remanding the case for a hearing on Jefferson's ineffective-assistance-of-counsel claim.
Indeed, the Court of Criminal Appeals applied the principles set forth in Watkins and Jefferson to a plain-error review conducted in Turner v. State, 924 So. 2d 737 (Ala.Crim.App.2002), in which a capital-murder defendant argued that the trial court committed plain error when it admitted into evidence his post-arrest statement to law enforcement because, he said, the statement was the fruit of the poisonous tree. According to Turner, his statement was a consequence of his allegedly illegal arrest. Because Turner had not challenged the legality of his arrest or the admission of his statement at trial, the Court of Criminal Appeals reviewed the record for plain error. The court noted *755 that because Turner did not object at trial, the record did not set forth the facts surrounding his arrest, and nothing in the record offered any "suggestion of illegality." Therefore, the court held that because the record on its face did not support a finding that Turner's arrest was not supported by probable cause, the court could not find plain error with regard to the admission of Turner's statement made subsequent to the arrest. 924 So.2d at 757-58. Essentially, the Court of Criminal Appeals held that because the alleged error was not "obvious" on the face of the record, it did not rise to the level of plain error.
The alleged error Walker asserts is not obvious and, therefore, cannot be plain error. The record before us, like the records in Watkins and Turner, does not suggest any illegality with regard to Walker's arrest. Additionally, unlike the record in Jefferson, which affirmatively supported the alleged error, nothing in this record affirmatively suggests that Walker was arrested on less than probable cause. In light of the sparsity of the record with regard to the facts surrounding Walker's arrest, Walker's alleged error is not obvious on the face of the record and, therefore, does not rise to the level of plain error. Cf. Ex parte Meeks, 434 So. 2d 844 (Ala.1983) (providing an example of an obvious error when the suppression hearing contained testimony directed toward probable cause to arrest the defendant, but the testimony did not establish probable cause).
Likewise, we do not find plain error because the record does not establish that the alleged error adversely affected Walker's substantial rights. See Olano, supra. For us to hold that the videotaped statement was improperly admitted and that its improper admission affected or probably affected Walker's trial, the record had to establish that Walker's arrest was not supported by probable cause. Walker's contention of plain error in this regard is supported only by speculation from a silent record, and speculation will not support a finding of prejudice. Additionally, because the record does not suggest any illegality with regard to Walker's arrest, we cannot conclude the alleged error seriously affected the fairness, integrity, or public reputation of this proceeding. See Ex parte Price, 725 So. 2d 1063 (Ala.1998). Indeed, the inability to establish prejudicethe miscarriage of justiceis the reason that claims involving lack of probable cause to support an arrest that are not litigated at trial are often presented as claims of ineffective assistance of counsel. See Hunt v. State, 940 So. 2d 1041 (Ala.Crim.App.2005).
No plain error exists with regard to the admission of Walker's videotaped statement.
E. Alleged error in trial court's finding that the offense was "especially heinous, atrocious, or cruel compared to other capital offenses."
Last, Walker contends that the trial court erred in finding the existence of the aggravating circumstance that "the capital offense was especially heinous, atrocious, or cruel compared to other capital offenses." See 13A-5-49(8), Ala.Code 1975. According to Walker, the trial court relied on the jury's verdict and not on the evidence to reach its conclusion that the offense was especially heinous, atrocious, or cruel. A reading of the trial court's order in its entirety, however, clearly establishes that the trial court relied on the evidence in finding the existence of this aggravating circumstance. The trial court specifically noted:
"[W]ith respect to the second aggravating circumstance, Dr. Parades testified that an 87-year-old woman was brutally beaten prior to being shot in the head at close range. He established that these *756 injuries were painful and preceded death. This type of cruelty was unnecessary given the age and physical infirmities experienced by the victim."
The trial court conducted an independent review of the evidence before concluding that this aggravating circumstance existed. Walker's contention is not supported by the record.
Walker further argues that the evidence does not establish beyond a reasonable doubt
"that the victim suffered `physical violence beyond that necessary to cause death' of which the victim was `conscious and aware,' that the victim `appreciabl[y] suffer[ed]' or experienced `psychological terror' such that the application of the circumstance is appropriate."
(Walker's petition at 98.) Walker directs this Court to Lawhorn v. State, 581 So. 2d 1159, 1174-75 (Ala.Crim.App.1990), in which the. Court of Criminal Appeals noted that
"Alabama has restricted its `heinous, atrocious, or cruel' circumstance to application only in a crime `of such nature that it is "conscienceless or pitiless" and "unnecessarily torturous to the victim,"' Ex parte Whisenhant, 555 So. 2d 235, 244 (Ala.1989), cert. denied, 496 U.S. 943, 110 S. Ct. 3230, 110 L. Ed. 2d 676 (1990) (quoting Ex parte Kyzer, 399 So. 2d 330, 334 (Ala.1981))."
We, however, reject Walker's cursory summarization of the evidence and conclude that the evidence supports a finding that the offense was "conscienceless or pitiless" and "unnecessarily torturous to the victim." The record establishes that Thweatt was an 87-year-old, five-feet-one-inch, 112-pound female, who suffered nine lacerations resulting from blunt-force trauma to the head before suffering a fatal gunshot wound at close range to her face. Dr. Alfredo Parades, the forensic pathologist who examined Thweatt's body, testified that the laceration over the left side of the cheekbone and corner of the eye was also associated with multiple fractures of the orbit and cheekbones. Dr. Parades stated unequivocally that the blunt-force-trauma injuries were inflicted while Walker was alive. Additionally, Dr. Parades opined that Thweatt's wounds indicated that they were not inflicted at once, but over a period of time, and that she was alive during the beating. Without question, the evidence established that the assault upon Thweatt was beyond that necessary to cause death.
Moreover, the record establishes that Thweatt suffered great pain throughout the assault. Dr. Parades opined:
"The magnitude of the pain I cannot speak for it. But, I do think she had to have a lot of pain. All of these injuries were independent of each other. There was no confluent injury. Like the one above the left eyebrow was close [to another injury to her face] but it doesn't mean that they were created by one blow. To me it was two separate blows, so she must have been in some pain for all of the injuries to develop and be produced."
Dr. Parades consistently maintained that Thweatt had been in pain as a result of the injuries inflicted and that nothing in the condition of her body indicated that she had slipped into unconsciousness at any time before she was fatally shot.
Furthermore, the record establishes that Thweatt experienced fear before the fatal gunshot wound. Evidence was presented indicating that Thweatt attempted to evade the attack by closing a door, but the door had been kicked off its hinges. Additionally, the evidence that she was beaten before she was shot and that she was alive until the fatal gunshot wound suggests that she experienced fear. Ex *757 parte Rieber, 663 So. 2d 999, 1003 (Ala. 1995).
Viewing the evidence in its entirety, the trial court could have concluded from the evidence, the State presented that the murder of Thweatt that occurred during the course of a burglary was beyond a reasonable doubt "especially heinous, atrocious, or cruel compared to other, capital offenses."
Conclusion
Based on the foregoing, the judgment of the Court of Criminal. Appeals is affirmed.
AFFIRMED.
SEE, SMITH, and BOLIN, JJ., concur. MURDOCK, J., concurs in the result.
LYONS, WOODALL, and PARKER, JJ., dissent.
PARKER, J., files statement of nonrecusal.
COBB, C.J., recuses herself.
MURDOCK, Justice (concurring in the result).
I write separately to address the question of plain error as it relates to the admission at trial of the videotaped statement made by Walker after he was taken into custody by Houston County officials.
Regardless of whatever other requirements generally must be met in order to establish plain error, in relation to the issue whether the videotaped statement was obtained incident to an arrest that was unlawful because it was without probable cause, logically one of three things must be true if we are to say that the trial court. "plainly erred" by admitting that statement into evidence at trial. It must be shown either (1) that the trial court had determined (or that it was undisputed) that the arrest was indeed made without probable cause, (2) that, although the trial court had not affirmatively made such a determination, the fact that the arrest was made without probable cause was "plain" from the record, or (3) that (a) it was "plain" that the State had an obligation at trial to put on evidence proving that there was probable cause for Walker's arrest, because it was plain that Walker maintained that there was not, but the State did not do so, and (b) it was "plain" that the record was insufficient to establish probable cause or some other lawful basis for the arrest. In this case, however, none of these predicates exist. First, the trial court did not determine that Walker's arrest was without probable cause. Second, the record does not "plainly" indicate that the arrest was made without probable cause.
As to the third predicate, unlike other evidentiary showings that must always be made by the State before certain types of evidence can be admitted, the State had an obligation at trial to put on evidence proving that Walker's arrest was made with probable cause only if Walker maintained the position that his arrest was unlawful. Accordingly, plain error would exist if Walker plainly had maintained that position (thereby plainly obligating the State to put on evidence to the contrary), but the record nevertheless plainly was insufficient to establish a lawful arrest and the trial court proceeded to admit the statement and allow the jury to consider it. It is my conclusion that, even if Walker plainly maintained that position (a proposition disputed by the main opinion), it was not plain, and would not have been plain to the trial court, that the record was insufficient to establish a lawful arrest and subsequent detention. The trial court therefore did not plainly err by admitting into evidence a statement made by Walker incident to that arrest and detention.
The record reflects that Walker was arrested by the Hokes Bluff police in Etowah County on June 20, 2000. A Hokes *758 Bluff police officer testified at trial that, before his arrest of Walker, a television program aired in the Etowah County area purporting to link Walker and his stepbrother, Rex Allen Beckworth, to Thweatt's murder. The officer (who also testified that he had viewed the portion of the program concerning Walker and his stepbrother) explained that he subsequently received a tip from a confidential informant that Walker and his stepbrother could be found in a particular mobile home located in Hokes Bluff. The officer testified that, after arriving at the mobile home, he identified himself in a loud voice as a Hokes Bluff police officer. According to the officer's testimony, when a woman came to the door and asked what the officer wanted, he responded: "[W]e were told there are some people here that we have warrants for. We would like to look inside." After the woman allowed the officer into the home, Walker's stepbrother (who also was eventually convicted of Thweatt's murder) fled the mobile home through another door. Walker was captured while hiding behind a piece of furniture.
Moreover, at an August 2003 hearing on a motion in limine,[4] Walker's counsel admitted to the trial court that "there were outstanding warrants on Mr. Walker" at the time of his arrest in Etowah County and that he was "on the run because he was wanted in . . . other alleged crimes" of burglary and breaking and entering a motor vehicle in Houston County. See United States v. Green, 111 F.3d 515, 522 (7th Cir.1997) (holding that evidence obtained from a search made subsequent to an illegal stop was admissible when, before the search, the police officer discovered that there was an outstanding arrest warrant for the defendant, and the defendant was thereupon arrested pursuant to that warrant); see also, e.g., Myers v. State, 395 Md. 261, 295, 909 A.2d 1048, 1068 (2006) (reviewing other cases to the same effect).
In light of the foregoing, I cannot conclude that it was plain, or that it should have been plain to the trial court, that the record did not sufficiently establish the lawfulness of Walker's arrest and continued detention leading up to the making of the statement at issue.
LYONS, Justice (dissenting).
I share Justice Woodall's concerns regarding the failure of the main opinion to recognize the State's burden of showing an arrest supported by probable cause in light of Walker's assertion in his motion to suppress of lack of probable cause for his arrest. Likewise, I agree with Justice Woodall's rejection of the reliance in the main opinion upon the fact of a subsequent indictment as prima facie evidence of probable cause for an antecedent arrest. As the court in Radvansky v. City of Olmsted Falls, 395 F.3d 291, 307 n. 13 (6th Cir. 2005), recently noted:
"[N]either the Supreme Court, nor this court, has ever held that a subsequent grand jury indictment can establish probable cause for an earlier arrest. See Rios v. United States, 364 U.S. 253, 261, 80 S. Ct. 1431, 4 L. Ed. 2d 1688 (1960) (evaluating probable cause based on the circumstances at the time of arrest despite the fact that the defendant was later indicted by a federal grand jury); Giordenello v. United States, 357 U.S. 480, 487, 78 S. Ct. 1245, 2 L. Ed. 2d 1503 (1958) (holding that in the absence of a prior indictment, probable cause for arrest is determined by the facts in the sworn complaint); United States v. *759 Bowker, 372 F.3d 365, 374 (6th Cir.2004) (analyzing probable cause to arrest based on evidence before the warrant-issuing magistrate judge even though the defendant was later indicted by a grand jury); United States v. Bartholomew, 310 F.3d 912, 919 (6th Cir.2002), cert. denied, 537 U.S. 1177, 123 S. Ct. 1005, 154 L. Ed. 2d 923 (2003) (assessing the existence of probable cause to arrest a later-indicted defendant based on the facts that police knew at the time of arrest); see also Smith v. Thornburg, 136 F.3d 1070, 1077 (6th Cir.1998) (concluding that police had probable cause to arrest the suspect despite the fact that he was not indicted later by a grand jury). What we have previously held implicitly, we now state explicitlyafter-the-fact grand jury involvement cannot serve to validate a prior arrest. See Garmon v. Lumpkin County, 878 F.2d 1406, 1409 (11th Cir.1989) CA subsequent indictment does not retroactively provide probable cause for an arrest that has already taken place.')."
(Some emphasis original; some emphasis added.)
I therefore respectfully dissent.
WOODALL, Justice (dissenting).
In my opinion, this Court should recognize as plain error the trial court's admission into evidence of a videotape containing statements by Walker. The recognition of such plain error would result in the reversal of the judgment of the Court of Criminal Appeals and in a remand for a new trial. Therefore, I respectfully dissent.
This case involves the senseless and horrible murder of Bessie Lee Thweatt. As the lead opinion acknowledges, James Earl Walker was arrested in Etowah County after "[l]aw-enforcement officers from the Houston County Sheriffs Department suspected Walker and Rex Allen Beckworth, residents of Etowah County, of the murder." 972 So.2d at 740 (emphasis added). During questioning in Etowah County by Houston County law-enforcement officers, Walker admitted to being outside Thweatt's house at the time of her murder. While Walker was being transported to Houston County, law-enforcement officers stopped at Thweatt's residence, where Walker made a videotaped statement describing his version of the events on the night Thweatt was killed. Walker, who was arrested in June 2000, was not indicted for the capital murder of Thweatt until September 1, 2000.
Walker filed a motion to suppress the statements he had given to the law-enforcement officers. The motion to suppress contained several grounds, and stated:
"James Earl Walker respectfully moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Sections 1, 5, 6, 7, 8, 9, 11, 13, 15 and 16 of Article I of the Alabama Constitution, and applicable state law, to suppress any statements that he allegedly made to any law enforcement officers in connection with this case as evidence against him in the prosecution's case-in-chief, as rebuttal evidence or as impeachment evidence.
"1. James Earl Walker is charged with capital murder.
"2. The State has furnished counsel for Mr. Walker with statements he allegedly gave to the police in connection with this case.
"3. At the time of his questioning, Mr. Walker had become the focus of the investigation of the death of the alleged victim in this case.
"4. Mr. Walker did not give the statements voluntarily and intelligently.
*760 "5. Statements allegedly given by suspects to the police are prima facie involuntary in Alabama.
"6. The defendant was seized and interrogated on less than probable cause, in violation of his Fourth and Fourteenth Amendment rights. Dunaway v. New York, 442 U.S. 200 (1979). Accordingly, his statement was obtained after an illegal seizure and must be suppressed, along with all other fruits of the illegal seizure. Wong Sun v. United States, 371 U.S. 471, 488 (1963).
"7. The defendant did not voluntarily answer questions or voluntarily make a statement, but was instead coerced into responding to the police interrogation. Bram v. United States, 168 U.S. 532 (1897); Mincey v. Arizona, 437 U.S. 385 (1978). The circumstances surrounding the interrogation were coercive. The totality of the circumstances shows that the statements were involuntary and taken in violation of federal and state constitutional guarantees.
"8. The state has failed to prove that the defendant's statements were voluntary. Lego v. Twomey, 404 U.S. 477 (1972).
"9. The defendant was not adequately advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). He did not knowingly and intelligently waive his rights, in violation of Edwards v. Arizona, 451 U.S. 477 (1981).
"10. For the foregoing reasons, his alleged statements were obtained in violation of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and of the corresponding provisions of the Alabama Constitution, and must be suppressed."
(Headings omitted; emphasis added.)
In his motion to suppress, Walker clearly alleged, in pertinent part, that his statements should be suppressed on the ground that they were obtained as the result of an arrest not supported by probable cause. Once Walker made these allegations, the State had the burden of proving probable cause to make, the arrest. Ex parte Meeks, 434 So. 2d 844, 845-46 (Ala.1983) (when a defendant makes "a motion to suppress . . . based on the ground that his arrest was without probable cause and that the evidence the State expected to use was obtained as a result of the illegal arrest," the State has the "burden of proving probable cause to make an arrest"). "When a police officer arrests without a warrant, and the defendant objects to the introduction of evidence claimed to be incident to such an arrest, the burden is on the State to show that the arrest was lawful." Duncan v. State, 278 Ala. 145, 161, 176 So. 2d 840, 855 (1965). The lead opinion's holding that Walker had some initial burden to demonstrate the absence of probable cause for his arrest is clearly contrary to well-established Alabama law. The record in this case reveals that the State made absolutely no attempt to carry its burden of proving probable cause to arrest Walker.
To carry its burden of proving probable cause, the State must bring to the trial court's attention the facts upon which the arresting officer acted.
"When the constitutional validity of an arrest is challenged, it is the function of a court to determine whether the facts available to the officers at the moment of arrest would `warrant a man of reasonable caution in the belief' that an offense has been committed. If the court is not informed of the facts upon which the arresting officers acted, it cannot properly discharge that function."
Beck v. Ohio, 379 U.S. 89, 96, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964) (citation omitted).
The trial court held a hearing on Walker's motion to suppress. Although it had *761 the burden of showing that Walker's arrest was supported by probable cause, the State introduced absolutely no evidence concerning the circumstances of his arrest. Instead, all the State's evidence related to Walker's allegations that his statements were involuntary and that he had not knowingly and intelligently waived his rights before he made the statements. The trial court later denied Walker's motion to suppress in a written order. The trial court concluded that the State had met its burden to prove that Walker's statements were voluntary, stating that the "statements were freely and voluntarily given after being given Miranda rights." In its order, however, the trial court did not address Walker's contention that he had been arrested without probable cause, and that, therefore, his statements should be suppressed. At trial, the State offered Walker's videotaped statement, which the trial court admitted into evidence over defense counsel's objection.
It would seem obvious that the trial court erred in admitting the videotaped statement into evidence. After all, at the suppression hearing, the State completely defaulted in its obligation to establish the constitutional validity of Walker's arrest. The arresting officer did not testify, and the State offered no evidence of the facts upon which he acted. However, the State argues that "there is considerable evidence throughout the record suggesting that a warrant existed for Walker's arrest, and that probable cause existed." State's brief, at 25-26 (emphasis added). It is true that, in reviewing "a motion to suppress a defendant's statement, fan appellate court is] not limited merely to that evidence presented at the suppression hearing, but may also consider the testimony given before the jury." Henry v. State, 468 So. 2d 896, 899 (Ala.Crim.App. 1984). However, my review of the record reveals no such "considerable evidence" of the existence of a warrant or probable cause. Also, although the State admits that Walker's suppression claim appears to be "potentially meritorious," the State alleges that the claim relies "on severe misrepresentations of the record." State's brief, at 14 n. 6. However, my review of the record reveals no such misrepresentations.
Officer Ron Jones of the Hokes Bluff Police Department, the arresting officer, testified at trial. Jones testified only that he found Walker based upon information provided to him by a confidential informant. Officer Jones gave no testimony relating, directly or indirectly, to the issue of probable cause. Obviously, the State did not elicit from Officer Jones evidence sufficient to establish the constitutional validity of Walker's arrest.
In arguing that the State had probable cause to arrest Walker, the State also relies upon the trial testimony of Angela Poster, Walker's sister. According to the State, Foster "spoke to police soon after the murder, telling them that her brother and Beckworth had been acting strangely, including asking her to show that she was not wearing a police wire, and that she saw part of a .22 rifle in the trunk of her brother's car." State's brief, at 26. Walker argues that "[t]hese facts are hardly sufficient to muster a case for suspicion of any wrongdoing, let alone probable cause for the murder of Mrs. Thweatt." Walker's reply brief, at 15. I agree.
The State contends that Walker was arrested pursuant to a lawful warrant. However, the State admits that "the arrest warrant is not in the record." State's brief, at 25. My review of the trial testimony indicates that a capital-murder warrant for Walker's arrest was issued sometime after his arrest by Officer Jones. The State has not called to this Court's attention any evidence in the record indicating that a lawful warrant for Walker's *762 arrest was issued before his arrest and was relied upon as the basis for the arrest.
Based upon the record before this Court, it is clear to me that Walker was arrested without probable cause and without a lawful warrant. Consequently,
"well-established precedent requires suppression of the [videotaped statement] unless that [statement] was `an act of free will [sufficient] to purge the primary taint of the unlawful invasion.' Wong Sun v. United States, 371 U.S. 471, 486 (1963). Demonstrating such purgation is, of course, a function of circumstantial evidence, with the burden of persuasion on the State."
Kaupp v. Texas, 538 U.S. 626, 632-33, 123 S. Ct. 1843, 155 L. Ed. 2d 814 (2003). Significantly, the State does not argue that it can carry its burden of persuasion regarding the purgation of the primary taint of Walker's unlawful arrest. Consequently, this Court should assume that the videotaped statement bears a sufficiently close relationship to the illegal arrest so as to require the suppression of the statement as the indirect fruit of the unlawful arrest. See New York v. Harris, 495 U.S. 14, 19, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990). Thus, this Court should conclude that the trial court erred in denying Walker's motion to suppress his statement and in subsequently admitting that statement into evidence over his objection.
In Ex parte Bryant, 951 So. 2d 724 (Ala. 2002), this Court addressed the application of the plain-error rule in capital cases, stating:
"`"`Plain error' arises only if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings."' Ex parte Womack, 435 So. 2d 766, 769 (Ala.1983) (quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981)). See also Ex parte Woodall, 730 So. 2d 652 (Ala.1998). `"In other words, the plain-error exception to the contemporaneous objection rule is to be `used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.'"' Ex parte Land, 678 So. 2d 224, 232 (Ala. 1996) (quoting United States v. Young, 470 U.S. 1, 15 (1985)) (quoting in turn United States v. Frady, 456 U.S. 152, 163 n. 14[, 102 S. Ct. 1584, 71 L. Ed. 2d 816] (1982)). `To rise to the level of plain error, the claimed error must not only seriously affect a defendant's "substantial rights," but it must also have an unfair prejudicial impact on the jury's deliberations.' Hyde v. State, 778 So. 2d 199, 209 (Ala.Crim.App.1998), aff d, 778 So. 2d 237 (Ala.2000), cert. denied, 532 U.S. 907[, 121 S. Ct. 1233, 149 L. Ed. 2d 142] (2001). This Court may take appropriate action when the error has or probably has adversely affected the substantial rights of the appellant.' Rule 45A, Ala. R.App, P."
951 So.2d at 727 (emphasis added).
As stated in Ala. R.App. P. 39(a)(2)(D), the scope of our certiorari review in a death-penalty case permits this Court "to notice any plain error or defect in the proceeding under review, whether or not brought to the attention of . . . the Court of Criminal Appeals . . ., and to take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial rights of the petitioner." (Emphasis added.)
The error in this case is obvious; the State completely defaulted in its obligation to show probable cause for Walker's arrest. Also, it is clear that the error "has or probably has adversely affected [Walker's] substantial rights." Here, we are dealing with the fundamental "safeguards against unreasonable arrests in the fourth amendment to the Constitution of the *763 United States and Article I, Section 5, of our state constitution." Ex parte Hamm, 564 So. 2d 469, 472 (Ala.1990). These rights are of such importance that the State had the burden of proving that Walker was not arrested in violation of his constitutional rights, and it failed to do so.
It is also clear that the admission of the videotaped statement had an unfair prejudicial impact on the jury's deliberations. On the videotaped statement, Walker admitted that he had been at the scene of the crime, although he denied entering Thweatt's residence. Also, he claimed that he had run from the scene when he heard a gunshot. The district attorney obviously felt that the videotape strengthened the. State's case, because he referred to it 14 times during his guilt-phase closing arguments. Indeed, in its brief to this Court, the State does not deny that the videotaped statement was significant to the presentation of its case.
Under the circumstances of this case, this Court should find plain error, because "a miscarriage of justice would otherwise result." United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982). Consequently, I believe that the judgment of the Court of Criminal Appeals should be reversed, and the case should be remanded for further proceedings consistent with this dissent.
PARKER, J., concurs.
PARKER, Justice (statement of nonrecusal).
James Walker has filed a motion requesting that I recuse myself from this Court's consideration of his petition for a writ of certiorari. He argues that a guest editorial written by me and published in the Birmingham News on January 1, 2006,[5] indicates my "unwillingness to be bound by the rulings of the United. States Supreme Court" and therefore demonstrates that I am unwilling to be a "neutral and detached judge" in his case.
I first note that my guest editorial in the Birmingham News dealt with a specific case, Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), and with a specific issuethe reliance of a majority of the United States Supreme Court upon foreign law in holding unconstitutional the execution of juvenile offenders. Based upon the Roper decision, this Court, in Ex parte Adams, 955 So. 2d 1106 (Ala.2005), invalidated Adams's death sentence because he was a juvenile at the time he committed the murder. I had recused myself from participating in the Adams case because, in a previous position as an assistant attorney general, I had assisted in prosecuting the State's case against Adams. I therefore expressed my views in the guest editorial after the Adams case had been decided and after carefully checking to be certain no further appeals, motions, or petitions were pending before this Court in the case.
Nothing in Walker's motion suggests that he was a juvenile at the time of the murder for which he was convicted and sentenced to death. Nothing in Walker's motion indicates that his appeal is in any way based upon foreign law or upon American cases interpreting the United States Constitution based on foreign law. Therefore, he has presented no reason to conclude that I am unable to sit as a "neutral and detached judge" in his case.
Walker observes that as a Justice of this Court I have taken an oath to support the Constitution of the United States and the Constitution of the State of Alabama. In this observation he is absolutely correct. *764 But it is a leap of logic to conclude, from the fact that I have taken an oath to support the United States Constitution, that I am thereby bound to support every judicial gloss any court has ever given the Constitution. In fact, if a conflict exists between the plain words of the Constitution as understood by its Framers and an erroneous court opinion that is based upon foreign law, my oath requires me to follow the Constitution, not the opinion of a court.
In my guest editorial, I expressed my dismay at the Roper decision because "[t]he justices based their ruling not on the original intent or actual language of the U.S. Constitution, but on foreign law, including United Nations treaties." I noted that "one of the U.N. treaties invoked by the U.S. Supreme Court as a basis for its Roper decision is a treaty the United States has refused to sign" and that "[b]y insisting that American states submit to this unratified treaty, the liberals on the U.S. Supreme Court not only unconstitutionally invalidated laws in 20 states but, to do so, also usurped the treaty-making authority of both the President and the U.S. Senate."
Had space permitted, I could have gone further in my guest editorial and noted that the Roper Court received and specifically cited amici curiae briefs from the European Union and from the Human Rights Committee of the Bar of England and Wales, 543 U.S. at 576, 125 S. Ct. 1183. With this background, and noting that Roper was a 5-4 decision and that two Justices had been appointed who had not been on the United States Supreme Court when Roper was decided, I wrote that this Court should have declined to follow Roper and given the United States Supreme Court, and especially its new Chief Justice and Associate Justice, an opportunity to reconsider and overrule Roper.
The irony is that the Roper case came to the United States Supreme Court because the Missouri Supreme Court in State ex rel. Simmons v. Roper, 112 S.W.3d 397 (Mo.2003), refused to follow United States Supreme Court precedent in Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989).
No one has yet explained to my satisfaction why it is proper for the Missouri Supreme Court to rule that juvenile executions are not constitutional even though the United States Supreme Court had held in Stanford that they are constitutional, but it is somehow improper for me to suggest that the Alabama Supreme Court should have ruled that juvenile executions are constitutional even though the United States Supreme Court has held in Roper that they are not constitutional. Both are proper means of giving the United States Supreme Court an opportunity to reconsider a controversial and divided previous decision.
Based upon this narrowly written guest editorial, Walker claims that I have "publicly announced that [I] will not apply binding federal constitutional law with which [I] personally disagree[]." As the above explanation and the attached guest editorial itself clearly demonstrate, I made no such announcement.
Walker says his petition for the writ of certiorari is based in part upon United States Supreme Court decisions. Roper v. Simmons is not among these decisions, and none of the Supreme Court decisions cited by Walker rely upon foreign law.
For example, Walker's petition argues that the prosecutor illegally exercised his peremptory strikes in a racially discriminatory manner. In support of this contention, he relies upon Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991), and J.E.B. v. Alabama, 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994). The Powers decision does not rely upon foreign law, though it does contain a reference *765 to the French observer Alexis de Tocqueville's Democracy in America, 499 U.S. at 406-07, 111 S. Ct. 1364. J.E.B. does not rely upon foreign law, though it does contain a brief reference to William Blackstone's Commentaries, a source relied upon by the Framers in shaping American law, 511 U.S. at .132, 114 S. Ct. 1419.
Walker argues in his petition that his videotaped statement was obtained in violation of the requirements of the Fourth and Fifth Amendments to the United States Constitution and that it therefore should have been suppressed. In support of this argument he relies upon Taylor v. Alabama, 457 U.S. 687, 102 S. Ct. 2664, 73 L. Ed. 2d 314 (1982). Taylor contains no reference to foreign law.
Walker argues in his petition that his death sentence violates the prohibition against cruel and unusual punishment found in the Eighth Amendment to the United States Constitution. In support of this argument he relies upon Mills v. Maryland, 486 U.S. 367, 384, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988); Eddings v. Oklahoma, 455 U.S. 104, 102 "S.Ct. 869, 71 L. Ed. 2d 1 (1982); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976); and Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972). None of these cases involves the foreign-law concerns raised in my guest editorial.
For example, Mills v. Maryland contains no reference at all to foreign law. Eddings v. Oklahoma contains a brief reference to English common law and states that the Framers of our Constitution and Bill of Rights attempted to soften the rigor of England's mandatory death sentences. 455 U.S. at 111, 102 S. Ct. 869. This brief reference is unrelated to the concerns I expressed in my guest editorial. Similarly, Woodson v. North Carolina notes that at the time our Bill of Rights was adopted, England prescribed the death penalty for over 200 crimes, and the Framers sought to limit the types of cases in which capital punishment could be imposed. 428 U.S. at 289, 96 S. Ct. 2978.
The per curiam opinion in Furman v. Georgia likewise contains no reference to foreign law. References to foreign sources do appear in the concurring opinions of Justices Douglas, Brennan, and Marshall, but those references do not constitute reliance upon foreign law. Justice Douglas notes in his concurring opinion that in ancient Hindu law a Brahman (a member of the upper caste) was exempt from capital punishment and that punishment generally increased in severity as social status diminished. 408 U.S. at 255, 92 S. Ct. 2726. But Justice Douglas did not rely upon Hindu law; rather, he cited the Code of Manu negatively to illustrate his view that because in the United States wealthy persons are less likely to be executed than poor persons, the United States follows in practice what the Code of Manu made explicit. Justice Douglas also cited the Bloody Assizes of 17th century England as the cruel form of capital punishment our Framers were reacting against. He noted that England authorized the death penalty for many more types of offenses than did America and that in the early 1800s England authorized capital punishment for theft of more than five shillings but repealed that provision in 1827. 408 U.S. at 246 n. 9, 92 S. Ct. 2726.
Likewise, in Furman Justice Brennan in his concurring opinion observed that "this country never embraced the more violent and repulsive methods employed by England," 408 U.S. at 296, 92 S. Ct. 2726, and that "[w]hen this country was founded, memories of the Stuart horrors were fresh and severe corporal punishments were common." 408 U.S. at 305, 92 S. Ct. 2726.
*766 Also in Furman, Justice Marshall in his concurring opinion cited the Philippine Bill of Rights but noted that it was "borrowed from the Eighth Amendment to the U.S. Constitution and had the same meaning." 408 U.S. at 325 n. 21, 92 S. Ct. 2726. He claimed the Babylonian Code of Hammurabi as source for the lex talionis principle of "an eye for an eye, a tooth for a tooth." 408 U.S. at 333 n. 41, 92 S. Ct. 2726. In several instances he cited the English Royal Commission on Capital Punishment (1949-1953), as well as other English and Canadian sources and a United Nations committee, as to the effectiveness of capital punishment as a deterrent to crime. 408 U.S. at 342 n. 84, 347-51, 353, 92 S. Ct. 2726.
None of the above references constitutes a reliance upon foreign law. I do not object to evidence from foreign sources, provided it is competent and relevant to the issue at hand in an American court. And I consider it entirely appropriate to cite the historic practices of other nations as evidence of the Framers' perceptions and intent. The Framers derived their concepts of government from a wide variety of sources, including the Bible, Black-stone, Montesquieu, Locke, Cicero, Cato, Solon, and others. The Federalist Papers are replete with illustrations from the history of other nations that help to explain why the Framers adopted certain ideas that had worked in other nations, and, more frequently, why they rejected practices that had failed elsewhere. It is entirely proper to use such sources when they shed light on the meaning of the Constitution as intended by its Framers.
I do not object to the use of foreign sources from the time of our nation's founding and earlier to help clarify the meaning of our Constitution. But as stated in my guest editorial, I do object to the activist judiciary's reliance upon contemporary foreign sources to force the American people to change their laws and institutions to conform to the changing laws and opinions of other countries.
Nothing in my guest editorial, and none of the caselaw cited by Walker, gives me any reason to believe I cannot consider his petition fairly and impartially.
A motion to recuse is a serious matter, because it involves a tension between two judicial duties: (1) a duty to decide cases; and (2) a duty to recuse where bias or an appearance of bias exists. As Justice See observed in his statement of nonrecusal in Dunlop Tire Corp. v. Allen, 725 So. 2d 960 (Ala.1998): "The Constitution of the United States and the Constitution of Alabama of 1901 impose on judges the duty to decide cases." 725 So.2d at 976. Clearly, the duty to decide cases is the norm; the duty to recuse is the exception.
Alabama Code 1975, § 12-2-1, provides that this Court "shall consist of a chief justice and eight associate justices. . . ." This means that, with rare exceptions, litigants before this Court are entitled to have their cases heard and considered by as full a complement of Justices as is possible. When a Justice recuses himself from a case, the litigants and the public are forced to submit to deliberation by less than a full panel of. Justices, and the vote of, and valuable input from, the recused Justice is lost. The people of the State of Alabama have elected me to decide cases like this one, and I would be shirking my constitutional duty if I were to recuse myself from this case absent some compelling reasons to do so. If judges and Justices were to make a practice of recusing themselves without compelling reasons, they would encourage litigants to engage in forum-shopping and filing motions for recusal in an attempt to shape judicial panels to their own liking. See Dunlop Tire Corp. v. Allen, 725 So.2d at 977; Ham v. *767 State, 540 So. 2d 805, 807 (Ala.Crim.App. 1988).
After careful consideration, I have concluded that no compelling reasons for my recusal exist in this case. As the Court of Criminal Appeals observed in Carruth v. State, 927 So. 2d 866, 873 (Ala.Crim.App. 2005):
"`All judges are presumed to be impartial and unbiased,' Woodall v. State, 730 So. 2d 627, 638 (Ala.Crim.App.1997), aff'd in pertinent part, rev'd on other grounds, 730 So. 2d 652 (Ala.1998), and `[t]he burden i[s] on the party making a motion to recuse to establish that the trial judge is biased or prejudiced against the defendant.' Stallworth v. State, 868 So. 2d 1128, 1140 (Ala.Crim. App.2001)."
Canon 3.C(1), Alabama Canons of Judicial Ethics, provides, in pertinent part:
"C. Disqualification
"(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
"(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding. . . . "
In Ex parte Duncan, 638 So. 2d 1332 (Ala.1994), this Court explained:
"Under Canon 3(C)(1), Alabama Canons of Judicial Ethics, recusal is required when `facts are shown which make it reasonable for members of the public or a party, or counsel opposed to question the impartiality of the judge.' Acromag-Viking v. Blalock, 420 So. 2d 60, 61 (Ala.1982). Specifically, the Canon 3(C) test is: `Would a person of ordinary prudence in the judge's position knowing all of the facts known to the judge find that there is a reasonable basis for questioning the judge's impartiality?' Matter of Sheffield, 465 So. 2d 350, 356 (Ala.1984)."
638 So.2d at 1334.
As this Court said in 1989, "Any disqualifying prejudice or bias as to a party must be of a personal nature and must stem from an extrajudicial source." Ex parte Melof, 553 So. 2d 554, 557 (Ala.1989). Walker has presented no evidence whatsoever to suggest that I have any personal bias against him, and in fact I have none.
In Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct, 2528, 153 L. Ed. 2d 694 (2002), the United States Supreme Court invalidated certain restrictions on the expression of opinions by judges and judicial candidates. Justice Scalia, the author of the plurality opinion, opined that the term "impartiality" may have at least three possible interpretations:
"One meaning of `impartiality' in the judicial contextand of course its root meaningis lack of bias for or against either party to the proceeding. Impartiality in this sense assures equal application of the law. That is, it guarantees a party that the judge who hears his case will apply the law to him in the same way he applies it to any other party. This is the traditional sense in which the term is used. . . .
". . . .
"It is perhaps possible to use the term "impartiality' in the judicial context (though this is certainly not a common usage) to mean lack of preconception in favor of or against a particular legal view. This sort of impartiality would be concerned, not with guaranteeing litigants equal application of the law, but rather with guaranteeing them an equal chance to persuade the court on the legal points in their case. Impartiality in this sense may well be an interest served by the announce clause [which *768 prohibited a candidate for judicial office in Minnesota from announcing a position on a disputed legal or political issue], but it is not a compelling state interest, as strict scrutiny requires. . . .
"A third possible meaning of `impartiality' (again not a common one) might be described as open-mindedness. This quality in a judge demands, not that he have no preconceptions on legal issues, but that he be willing to consider views that oppose his preconceptions, and remain open to persuasion, when the issues arise in a pending case."
536 U.S. at 775-78, 122 S. Ct. 2528 (emphasis in original). Only in the first sense, that of a lack of personal bias for or against a party, could the state's interest. in ensuring impartiality be considered compelling so as to justify restrictions on freedom of expression.
Likewise, then Justice Rehnquist observed in Laird v. Tatum, 409 U.S. 824, 835, 93 S. Ct. 7, 34 L. Ed. 2d 50 (1972), in denying a motion seeking his recusal:
"Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It Would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous legal careers. Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias."
In no way has Walker even suggested, let alone proven, that I have any bias against him personally, and as previously stated, I have none. Nor does his assertion that I have stated an opinion about a legal and constitutional issue establish that I am unable to consider his case with an open mind.
Furthermore, the prevalence of judicial activism makes it even more important that judges state their legal and political views so the voters can make informed decisions when they cast their ballots. This might be less true if judges strictly practiced judicial restraint. But as Stephen J. Ware stated in Money, Politics and Judicial Decisions: A Case Study of Arbitration Law in Alabama, 30 Cap. U.L.Rev. 583, 594 (2002), it is a "myth that courts are apolitical and do not make policy. The Legal Realists exploded that myth and showed that judges do make policy. This is especially true of judges on the states' highest courts." Like the citizens in 30 other states, Alabamians have chosen to elect their judges and Justices. They therefore have a right and a duty to learn what judicial candidates believe about legal and constitutional issues. If judges are prohibited from expressing opinions on such issues, it becomes extremely difficult for the voters to make informed decisions.
I observe, further, that judges and Justices regularly express opinions on legal issues in the cases they decide. The fact that a judge or Justice has written an opinion on a case and a higher court then decides the case differently from the way that judge or Justice wrote that opinion does not mean that judge or Justice is thereafter disqualified from deciding similar cases. If I had participated in the Adams case and had issued a dissenting opinion expressing exactly the same views I expressed in the guest editorial, I would not be subject to recusal in a later case dealing with the same issue. The only difference is that in the Adams case I expressed my views in a guest editorial rather than in a dissenting opinion. I fail *769 to see why that distinction makes any difference as to my duty to recuse myself.
This is a death-penalty case. Believing as I do that all human life is created in God's image and is therefore of infinite value, I take this case very seriously and will give Walker's arguments my most careful consideration.
Because no compelling reasons for my recusal exist, as Justice Brown wrote in her statement of nonrecusal in Brackin v. Trimmier Law Firm, 897 So. 2d 207, 230 (Ala.2004), "I have determined that I am not disqualified from deciding the appeal . . . and that it is my constitutional duty to decide this case. I, therefore, decline to recuse myself."
APPENDIX
Alabama justices surrender to judicial activism
By Tom Parker
(as printed in the Birmingham News, January 1, 2006)
In 1997, a vicious thug entered the home of a pregnant Alabama woman. He raped and repeatedly stabbed her, then fled, leaving her to die in a house with three other children. Police acted swiftly and caught the attacker, Renaldo Adams, literally red-handed with blood. After a fair trial, Adams was convicted of rape and murder and given the death penalty. It took the jury less than 30 minutes to recommend his execution.
As an assistant attorney general under then Attorney General (now U.S. Sen.) Jeff Sessions, I helped prosecute Adams and was satisfied the Alabama jury chose the punishment that best fit his crime. Consequently, I was shocked to learn the Alabama Supreme Court just freed Adams from Death Row.
Although I am now a justice of the Alabama Supreme Court, I had to recuse from any involvement in Adams' case because I helped prosecute him. Because I believe the court's decision illustrates a serious problem with our judicial system, however, I write to explain what I regard as a failure to defend our Constitution and laws against activist federal judges.
You see, my fellow Alabama justices freed Adams from Death Row not because of any error of our courts but because they chose to passively accommodaterather than actively resistthe unconstitutional opinion of five liberal justices on the U.S. Supreme Court.
Those liberal justices declared last spring in the case of Roper v. Simmons that "evolving standards of decency" now make it "unconstitutional" to execute murderers who were minors at the time of their crime. The justices based their ruling not on the original intent or actual language of the U.S. Constitution, but on foreign law, including United Nations treaties.
Ironically, one of the U.N. treaties invoked by the U.S. Supreme Court as a basis for its Roper decision is a treaty the United States has refused to sign. By insisting that American states submit to this unratified treaty, the liberals on the U.S. Supreme Court not only unconstitutionally invalidated laws in 20 states but, to do so, also usurped the treaty-making authority of both the president and the U.S. Senate.
I am not surprised the liberal activists on the U.S. Supreme Court go to such lengths to usurp more political power. I am also not surprised they use such ridiculous reasoning to try to force foreign legal fads on America. After all, this is the same, court that has declared state displays of the Ten Commandments to be unconstitutional.
But I am surprised, and dismayed, that my colleagues on the Alabama Supreme *770 Court not only gave in to this unconstitutional activism without a word of protest but also became accomplices to it by citing Roper as the basis for their decision to free Adams from Death Row.
The proper response to such blatant judicial tyranny would have been for the Alabama Supreme Court to decline to follow Roper in the Adams case. By keeping Adams on Death Row, our Supreme Court would have defended both the U.S. Constitution and Alabama law (thereby upholding their judicial oaths of office) and, at the same time, provided an occasion for the U.S. Supreme Court, with at least two new members, to reconsider the Roper decision.
After all, Roper itself was established as new U.S. Supreme Court "precedent" only because the Missouri Supreme Court refused to follow prior precedent. The U.S. Supreme Court used the appeal resulting from the Missouri decision to overturn its previous precedent and declined to rebuke the state court for disregarding the prior precedent.
State supreme courts may decline to follow bad U.S. Supreme Court precedents because those decisions bind only the parties to the particular case. Judges around the country normally follow precedents in similar cases because they know that if those cases go before the court again they are likely to receive the same verdict. But state supreme court judges should not follow obviously wrong decisions simply because they are "precedents."
After all, a judge takes an oath to support the Constitutionnot to automatically follow activist justices who believe their own devolving standards of decency trump the text of the Constitution. Thus, faithful adherence to the judicial oath requires resistance to such activism, and a changing U.S. Supreme Court membership makes such resistance more likely to bear good fruit.
The Adams case presented the Alabama Supreme Court with the perfect opportunity to give the new U.S. Supreme Court the occasion to overturn the unconstitutional Roper precedent. If our court had voted to uphold Adams' death penalty, he would have appealed the decision to the U.S. Supreme Court. Because the U.S. Supreme Court can accept only a handful of the petitions it receives, the court may not have heard the case at all, and Adams would have been executed as he deserves. However, if the new John Roberts-led court had taken the case, it could very well have overturned Roper.
But even if, in the worst-case scenario, the Roberts court had taken the Adams case but failed to overturn Roper, the Alabama Supreme Court would have been none the worse for standing up against judicial activism.
After all, the liberals on the U.S. Supreme Court already look down on the pro-family policies, Southern heritage, evangelical Christianity and other blessings of our great state. We Alabamians will never be able to sufficiently appease such establishment liberals, so we should stop trying and instead stand up for what we believe without apology.
Conservative judges today are on the front lines of the war against political correctness and judicial tyranny. Happily, Alabama's Supreme Court has a reputation of being one of the most conservative in the nation.
However, it does no good to possess conservative credentials if you surrender them before joining the battle.
Tom Parker, a graduate of Dartmouth College and Vanderbilt Law School, is an *771 associate justice of the Alabama Supreme Court.
NOTES
[*] Note from the reporter of decisions: The Court of Criminal Appeals' opinion in this case was released for publication in the official reports on July 28, 2005, following the Court of Criminal Appeals denial of rehearing on March 11, 2005, and the issuance of its certificate of judgment on March 30, 2005. On September 8, 2005, the Court of Criminal Appeals set aside the certificate of judgment issued on March 30, 2005, and placed the case on rehearing ex mero motu. On that same date, September 8, 2005, that court entered the following notation in its docket sheet: "Application for Rehearing Overruled." The opinion of the Court of Criminal Appeals is published at 932 So. 2d 140.
[1] With regard to the juror questionnaire; the trial court instructed:
"Please answer the questions as best you are able, and be sure to sign your name to the questionnaire. This is just as important as the questions that are asked of you by the Court and by the attorneys.
". . . And, additionallyone of the reasons we're going to do this questionnaire early and today is that these attorneys will pour over that information tonight. . . . "
[2] Walker specifically directs this Court's attention to the State's use of its peremptory challenges against four African-American females. According to Walker, the record does not provide nondiscriminatory reasons for the State's, peremptory strikes of these prospective jurors. Our review of the juror questionnaires, however, indicates that the State had nondiscriminatory reasons for the strikes because these prospective jurors either had relatives who had been convicted of a crime or had relatives who had been murdered and the prosecution of the accused was pending. See Ex parte McNair, 653 So. 2d 353 (Ala.1994), and Ex parte Drinkard, 777 So. 2d 295 (Ala. 2000).
[3] In his discussion of this issue, Walker includes a "grocery list" of alleged prosecutorial conduct with regard to Byrd and his testimony. We have read Byrd's testimony and the arguments in their entirety, and we find no reversible error.
[4] In addition to the motion to suppress discussed in the main opinion, Walker filed a motion in limine.
[5] Walker attached a copy of the guest editorial as an exhibit to his motion to recuse. I have included a copy of the editorial as an appendix to this statement of nonrecusal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590244/ | 972 So. 2d 24 (2008)
Randy LEONARD, Appellant
v.
STATE of Mississippi, Appellee.
No. 2006-KA-02160-COA.
Court of Appeals of Mississippi.
January 8, 2008.
*26 Randy Leonard, pro se.
George T. Holmes, Leslie S. Lee, Jackson, attorneys for appellant.
Office of the Attorney General, by Deirdre McCrory, attorneys for appellee.
Before LEE, P.J., IRVING and ROBERTS, JJ.
ROBERTS, J., for the Court.
SUMMARY OF THE CASE
¶ 1. A jury sitting before the Winston County Circuit Court found Randy Leonard guilty of sexual battery. The circuit court sentenced Leonard to fifteen years in the custody of the Mississippi Department of Corrections with five years to serve and ten years of post-release supervision. The Mississippi Office of Indigent Appeals filed a brief pursuant to Lindsey v. State, 939 So. 2d 743 (Miss.2005) and reported that, after a good faith effort to find arguable error, it could find none. Leonard filed a pro se brief and, to paraphrase, submits that the circuit court erred when it (1) tried him without jurisdiction, (2) allowed the prosecution to amend the indictment to reflect the correct date of the offense, (3) overruled his motion to dismiss, (4) overruled his motion for JNOV, (5) violated his rights to a speedy trial, and (6) impaneled a jury comprised of more women than men. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. Before we proceed with the facts of this case, it is necessary to discuss the relationships between the various people involved. Leonard was found guilty of sexually battering sixteen-year-old Jane at the home he shared with Jane's aunt, Donna, in Louisville, Mississippi.[1] Donna's mother, Linda, also lived with Donna and Leonard. Linda's other daughter, Belinda, is Jane's mother.
¶ 3. On August 12, 2005, Jane spent the night with Linda, Donna, and Leonard. Jane slept on the couch that night. According to Jane, around 4:00 a.m., Leonard woke her up when he put his finger in her vagina. Leonard denied that allegation. According to Leonard, he got up around 11:00 p.m. or 12:00 when "one of [his] partners named Charles" visited. Leonard claimed that Jane was undressed and asleep on the couch. Leonard maintained that he only "picked [Jane's] leg up and put it on the couch and covered her up with a big towel."
¶ 4. In any event, Jane left early the next morning and did not tell anyone what happened. She later went to another *27 grandparent's house. Belinda stopped by Leonard's house to borrow a skirt for a funeral. After the funeral, Belinda went back to Leonard's house before she went to pick up Jane. Leonard asked Belinda to drive him to the store. Belinda agreed.
¶ 5. At some point during their drive, Leonard told Belinda that Jane mistakenly thought he tried to touch her inappropriately. When they arrived at Jane's grandmother's house, Jane let her mother inside. However, she slammed the door in Leonard's face. Shortly afterwards, Jane relayed her version of events to Belinda. When Belinda told Donna about Jane's accusation, Donna kicked Leonard out of the house. Donna later asked Leonard to return.
¶ 6. Greg Clark, an investigator with the Louisville Police Department, took statements from Jane and Belinda. When Leonard was picked up for questioning, Leonard waived his right to remain silent and gave a statement in which he reiterated his version of events.
¶ 7. On October 25, 2005, the Winston County Grand Jury returned an indictment against Leonard and charged him with sexual battery. Leonard pleaded not guilty and proceeded to trial. Ultimately, the jury found Leonard guilty of sexual battery. Consequently, the circuit court sentenced Leonard to fifteen years in the custody of the Mississippi Department of Corrections with five years to serve and ten years of post-release supervision. Leonard appeals.
¶ 8. The Mississippi Office of Indigent Appeals prepared a brief on Leonard's behalf. However, the Office of Indigent Appeals stated:
Counsel for the Appellant hereby represents to the Court pursuant to Lindsey v. State, 939 So. 2d 743 (MS 2005), that counsel has diligently searched the procedural and factual history of this criminal action and scoured the record searching for any arguable issues which could be presented to the court on Mr. Leonard's behalf in good faith for appellate review, and upon conclusion, has found none.
Leonard prepared a pro se brief in which he appears to raise five issues: (1) the circuit court lacked jurisdiction to try and sentence him "according to 97-3-95(1)(a) [citation to the record] Discovery Violation," (2) the circuit court erred when it allowed the prosecution to amend the indictment, (3) the circuit court erred when it overruled his motion to dismiss and/or his motion for JNOV, (4) the circuit court violated his right to a speedy trial, and (5) he suffered prejudice because there were more women than men on the jury.
¶ 9. Leonard did not include an argument incident to any of those issues. Leonard included an argument portion with his brief, but he did not address those five issues. Instead, he suggested that he is entitled to bail pending appeal. We can offer no relief in that regard, as Leonard's appeal is now presently before us.
¶ 10. After Leonard filed his pro se brief, the Office of Indigent appeals filed a supplemental brief. The Office of Indigent Appeals did not discuss Leonard's first issue, stated as "THE TRIAL COURT erred because it was without jurisdiction to try to impose sentence according to 97-3-95(1)(a) [record citation] Discovery Violation." Instead, the Office of Indigent Appeals stated, "Counsel cannot locate anything in the record to discuss any discovery violation." However, the Office of Indigent Appeals submitted arguments for Leonard's other four issues. We will begin our analysis of Leonard's remaining four issues, renumbered for clarity.
*28 ANALYSIS
I. WHETHER THE CIRCUIT COURT ERRED WHEN IT ALLOWED THE PROSECUTION TO AMEND THE INDICTMENT AFTER TRIAL.
¶ 11. The original indictment reflected the date of the offense as August 13, 2005. Prior to Leonard's trial, the prosecution moved to amend the indictment to reflect the date of the offense as of August 14, 2005. Leonard objected. The circuit court did not rule on the prosecution's motion at that time. Instead, the circuit court took the matter under advisement. However, the circuit court ultimately granted the prosecution's motion to amend the indictment. Even so, the circuit court did not enter an order amending the indictment. Leonard seems to claim the circuit court erred when it granted the prosecution's motion to amend the indictment. The Office of Indigent Appeals suggests there are three questions within this issue: (1) "whether the state was entitled to amend the indictment," (2) "whether the amendment was `effective due to a lack of an order being entered,'" and (3) "if the amendment was not effective and there is a variance between the date of the offense in the indictment and the date of the offense from the trial evidence, whether such variance is fatal?"
1. Whether the trial court erred when it allowed the prosecution to amend the indictment.
¶ 12. "The question of whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by an appellate court." Davis v. State, 866 So. 2d 1107, 1110(¶ 11) (Miss.Ct.App.2003). Trial courts may amend indictments only to correct defects of form. Spears v. State, 942 So. 2d 772, 774(¶ 6) (Miss.2006). In contrast, defects of substance must be corrected by the grand jury. Id. The relevant question is whether amending the indictment to correct the date of the offense amounts to a defect of form or of substance. Resolution of that question depends on the facts of the case and the context of a defendant's theory of the case. "[A] change in the indictment is permissible if it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant's case." Id.
¶ 13. We cannot find that the circuit court erred when it granted the prosecution's motion to amend the indictment to correct the date of the offense. According to URCCC Rule 7.06(5), "An indictment shall . . . include . . . [T]he date and, if applicable, the time at which the offense was alleged to have been committed." URCCC Rule 7.06(5) goes on to state, "Failure to state the correct date shall not render the indictment insufficient[.]" The amendment did not materially alter any fact that was the essence of the offense on the face of the indictment as it originally stood. Further, the amendment did not materially alter Leonard's defense so as to prejudice his case. See, e.g., Davis, 866 So.2d at 1111(¶ 12) (holding that a change in the date of the offenses did not affect the viability of the defendant's defense, that the date was not the essence of the crimes, and, as such, the amendment to the indictment was "not fatal.") Leonard did not raise an alibi defense. Instead, Leonard's defense was based on the premise that he did not touch Jane inappropriately. The date reflected in the indictment had no bearing on Leonard's assertion.
2. Whether the amendment was ineffective due to the lack of an order amending the indictment.
¶ 14. According to Mississippi statutory law, "[t]he order of the court for amendment *29 of the indictment, record, or proceedings provided in Section 99-17-13 shall be entered on the minutes, and shall specify precisely the amendment, and shall be a part of the record." Miss.Code Ann. § 99-17-15 (Rev.2007) (emphasis added). The Mississippi Supreme Court addressed a similar situation in Reed v. State, 506 So. 2d 277, 279 (Miss.1987). In Reed, the prosecution was allowed to amend an indictment, but there was no valid order entered on the record that authorized that amendment. Id. at 279.
¶ 15. The Reed Court noted that, "The State is required to make sure that such an order appears in the record and the defense is required to object to the absence of such order if it wishes to preserve this point for appeal." Id. (citing Sturgis v. State, 379 So. 2d 534, 536 (Miss.1980)). According to Reed, because the defense attempted to object but was cut short by the trial judge, the prosecution did not ask the trial court to add an order authorizing the amendment, and did not add the order itself, the attempted amendment was ineffective. Id.
¶ 16. In Sturgis, the Mississippi Supreme Court stated:
where the defendant objects to the state's motion to amend and the objection is overruled and the amendment is allowed by the court but no order allowing the amendment is placed on the minutes of the court, a variance between the indictment as originally drawn and the proof is fatal, even though the district attorney made the amendment on the face of the indictment.
Sturgis, 379 So.2d at 536 (citing Shurley v. State, 90 Miss. 415, 43 So. 299 (1907)).
¶ 17. Here, Leonard's attorney objected to the prosecution's motion to amend the indictment and the prosecution did not see to it that the circuit court entered an order allowing the amendment of the indictment. Pursuant to Sturgis, the issue is now whether the variance in the indictment and the proof is fatal to Leonard's case.
3. Whether the variance between the indictment and the proof is fatal to the prosecution's case against Leonard.
¶ 18. According to Section 99-7-5 of the Mississippi Code (Rev.2007):
An indictment for any offense shall not be insufficient for omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense, nor for stating the time imperfectly, nor for stating the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened, nor for the want of a proper or perfect venue.
Further, and as we recognized above, "Failure to state the correct date shall not render the indictment insufficient[.]" URCCC Rule 7.06(5). The question is whether the variance in the indictment and the proof is a variance of form or substance. See Mahfouz v. State, 303 So. 2d 461, 462 (Miss.1974). We reach the same conclusion we reached above. The variance in the indictment and the proof is one of form only. It did not prejudice Leonard's defense. or his theory of the case. Accordingly, we find no merit to this issue.
II. WHETHER THE VERDICT IS AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
¶ 19. Posttrial, Leonard filed a "motion for new trial or in the alternative jnov." Leonard did not state a basis for his motion. Instead, Leonard argued, "The Court erred in overruling the Defendant's motion for a directed verdict made at the conclusion of the State's case and renewed *30 at the conclusion of the Defendant's case." Leonard also argued, "The verdict of the jury is contrary to the law and to the overwhelming weight of the evidence in this case." Finally, Leonard claimed, "The interest of justice requires that this Court grant the Defendant a new trial." Leonard did not expand or elaborate during the hearing on his unsuccessful posttrial motions. Aggrieved, Leonard appeals and challenges both the sufficiency and the weight of the evidence.
1. Sufficiency of the evidence.
¶ 20. A motion for JNOV challenges the legal sufficiency of the evidence. McClain v. State, 625 So. 2d 774, 778 (Miss. 1993). In appeals from an overruled motion for JNOV, we review the evidence in the light most favorable to the prosecution. Id. We must accept the credible evidence consistent with guilt as true, and we give the prosecution the benefit of all favorable inferences that may be reasonably drawn from the evidence. Beckum v. State, 917 So. 2d 808, 813(¶ 11) (Miss.Ct.App.2005). "We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty." Id.
¶ 21. Leonard merely presents a generic and conclusory argument. Though he states that the evidence was insufficient to sustain his conviction, he does not elaborate as to why he considers the evidence insufficient. It is not enough that a defendant move for JNOV on the basis that the prosecution failed to demonstrate a prima facie case. Davis, 866 So.2d at 1113(¶ 21). Such a defendant must specifically state just how the prosecution failed to present a prima facie case. Id. Without such specificity, we will not find the circuit court erred when it overruled such a motion. Id. Lack of specificity notwithstanding, Leonard's argument is meritless. Jane testified that Leonard placed his finger inside her vagina and that he did so against her will.
2. Weight of the evidence.
¶ 22. A motion for a new trial challenges the weight of the evidence. Beckum, 917 So.2d at 813(¶ 14). The circuit court has substantial discretion in ruling on a motion for a new trial. Id. The circuit court should grant the motion only if it would result in an unconscionable injustice if the verdict were allowed to stand. Id.
¶ 23. As we review the circuit court's decision to overrule a motion for a new trial, we must consider the evidence in the light most favorable to the verdict. Id. We are to be mindful that it is the jury's responsibility to resolve matters regarding the weight of the evidence and the credibility of witnesses. Id. We may only reverse the circuit court if it abused its discretion when it overruled the defendant's motion for a new trial. Id.
¶ 24. Again, we must note that Leonard failed to specify the basis for his contention. Leonard argued, "The verdict of the jury is contrary to the law and to the overwhelming weight of the evidence in this case." Leonard also claimed, "The interest of justice requires that this Court grant the Defendant a new trial." A motion for a new trial must be specific. Id. at (¶ 15). This is unquestionably a vague and general statement. Leonard failed to distinguish any particular deficiency in the proof. Leonard also failed to assert just how the verdict is or was contrary to the overwhelming weight of the evidence. Accordingly, this issue is procedurally barred. Id. Procedural bar notwithstanding, Leonard's argument lacks *31 merit. Jane testified that Leonard placed his finger in her vagina against her will. As mentioned, it is the province of the jury to determine the weight and credibility of the evidence, and the jury believed Jane over Leonard.
III. WHETHER THE CIRCUIT COURT VIOLATED LEONARD'S RIGHT TO A SPEEDY TRIAL?
¶ 25. In his pro se brief, Leonard seems to complain that the circuit court violated his right to a speedy trial. Leonard never raised this issue before the circuit court. As such, this issue is procedurally barred. Scott v. State, 829 So. 2d 688, 691(¶ 5) (Miss.Ct.App.2002).
IV. WHETHER THE CIRCUIT COURT ERRED WHEN IT ALLOWED LEONARD TO BE TRIED BY A JURY COMPRISED OF MORE WOMEN THAN MEN.
¶ 26. The jury that convicted Leonard consisted of nine women and three men. Leonard seems to claim the circuit court erred when it allowed him to be tried by a jury of more women than men. Leonard did not raise this issue at trial. Therefore, he is procedurally barred from raising this issue on appeal. Spicer v. State, 921 So.2d 292(¶ 62) (Miss.2006). Procedural bar notwithstanding, "proportional representation of [members of cognizable groups] on a jury is not required." Harris v. State, 576 So. 2d 1262, 1264 (Miss.1991).
¶ 27. THE JUDGMENT OF THE WINSTON COUNTY CIRCUIT COURT OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS TO SERVE AND TEN YEARS OF POST-RELEASE SUPERVISION, THE FIRST FIVE OF WHICH ARE TO BE SUPERVISED PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WINSTON COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR.
NOTES
[1] We use fictitious names to protect the victim's identity. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590249/ | 972 So. 2d 328 (2007)
Christle and August M. BERTONIERE
v.
JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO. 2, d/b/a East Jefferson General Hospital, Stewart A. Nutting, M.D., James D. Conway, M.D., S. Bleich, M.D., and ABC Insurance Company.
No. 07-CA-301.
Court of Appeal of Louisiana, Fifth Circuit.
October 30, 2007.
*329 Kevin D. Shearman, Attorney at law, Metairie, Louisiana, for Plaintiff/Appellant.
J. Marc Vezina, Kelli M. Khalaf, Attorneys at Law, Gretna, Louisiana, for Defendant/Appellee.
Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
WALTER J. ROTHSCHILD, Judge.
In this medical malpractice action, plaintiffs appeal from a judgment granting in part an exception of prescription brought by the Louisiana Patient's Compensation Fund. For the reasons stated *330 herein, we affirm the trial court's judgment.
Facts and Procedural History
On January 9, 1997, Christle and August M. Bertoniere filed a petition for damages against Jefferson Parish Hospital Service District No. 2, d/b/a East Jefferson General Hospital, Dr. Stewart A. Nutting, Dr. James D. Conway, Dr. S. Bleich and an unnamed insurance company alleging negligence on the part of the named physicians.[1] In this petition, plaintiffs allege that on December 31, 1995, August Bertoniere presented to the East Jefferson emergency room complaining of chest pain. He was examined by Dr. Michael Federline, and after ordering an EKG, Dr. Federline discharged Mr. Bertoniere with a diagnosis of left shoulder pain.
The following day, Mr. Bertoniere appeared again at the emergency room complaining of recurrent chest pain. Dr. Federline ordered another EKG. Mr. Bertoniere was diagnosed at this time as having sustained an "acute inferior wall myocardial infarction" and he was admitted to the hospital and seen by his internist, Dr. James Conway. The petition further alleges that Mr. Bertoniere underwent bypass surgery which was performed by Dr. Stewart Nutting on January 5, 1996. He was referred to Dr. Bleich for consult and follow-up. According to the petition, Mr. Bertoniere was discharged by Dr. Conway "to home health care and family" on January 8, 1996.
Mr. Bertoniere was brought back to the emergency room on January 9, 1996 after his wife found him "slightly incoherent with garbled speech and a blank expression." Mrs. Bertoniere was told by Dr. Nutting that her husband had suffered a "cerebral vascular accident due to an embolus" and he remained in the hospital until January 19, 1996. Since that date, he has remained in a semi-vegetative state.
In their original petition, plaintiffs allege Mr. Bertoniere was discharged to home health care with incorrect medication orders. They allege that Drs. Nutting, Conway and Bleich breached the standard of care in failing to give adequate orders for proper maintenance of hemostasis and/or anticoagulation therapy prior to discharge. Plaintiffs also allege that East Jefferson was negligent in failing to properly record and communicate the physicians' orders prior to discharge of Mr. Bertoniere.
Defendants responded to this petition with exceptions of prematurity on the basis that plaintiffs had not brought their claim to a medical review panel prior to the filing of this suit. The trial court granted the exceptions, and dismissed plaintiffs' suit without prejudice. Thereafter, plaintiffs filed a request for review and complaint with the Louisiana Patient's Compensation Fund Oversight Board and an opinion of the panel was issued on September 9, 1998.
Plaintiffs subsequently amended their petition to include as defendant the home health nurse and the agency which cared for Mr. Bertoniere after his hospital discharge. By a second amending and supplemental petition filed on November 30, 1998, plaintiffs included all defendants named in the original petition, and further named as defendants Dr. Michael Federline and the home health nurse and agency which cared for Mr. Bertoniere after his hospital discharge. In this petition, plaintiffs alleged that the EKG ordered by Dr. Federline in the emergency room on December 31, 1995 indicated a myocardial *331 infarction in progress and that Mr. Bertoniere should have been immediately admitted to the hospital and treated.
On January 24, 2001, the home health care agency was dismissed by summary judgment without opposition of plaintiffs.
On joint motion of dismissal filed on September 3, 2003 and signed by the trial court on September 25, 2003, plaintiffs' claims against Dr. Stewart Nutting and Dr. Michael Federline were dismissed with prejudice based on settlements obtained, reserving their status as nominal parties for the purposes of plaintiffs seeking additional compensation from the Louisiana Patient's Compensation Fund.
In February of 2004, the plaintiffs also filed a motion to dismiss East Jefferson General Hospital based on a settlement obtained, and this party was dismissed with prejudice reserving plaintiffs' rights to proceed against the remaining defendants and the Louisiana Patient's Compensation Fund.
Further, by summary judgment signed by the trial court on February 11, 2004, plaintiffs' claims against Dr. Stanley Bleich and Dr. James Conway were dismissed.
Plaintiffs subsequently filed into these proceedings a petition demanding payment from the Louisiana Patient's Compensation Fund ("PCF") pursuant to La. R.S. 40:1299.44(C). The Patient's Compensation Fund responded with an exception of prescription arguing that plaintiffs' medical malpractice claims were not timely filed.
By judgment rendered on June 13, 2006, the trial court maintained in part and overruled in part the exception of prescription as follows:
A) As to defendant Dr. Stewart A. Nutting, the exception of prescription is OVERRULED at exceptor's costs; and
B) As to defendant Dr. Michael Federline, the exception is MAINTAINED dismissing all petitioners' claims against Dr. Federline with prejudice at petitioners' costs.
In its reasons for judgment, the trial court found that the medical malpractice claims were filed by plaintiffs in this case on January 8, 1997, based on the letter sent by the PCF to plaintiffs on January 22, 1997 acknowledging receipt of their claims. The trial court further found that prescription began as to Dr. Nutting when plaintiff became aware of the damage incurred, i.e., his stroke on January 9, 1997. Thus, the trial court concluded the claim against Dr. Nutting was timely filed. As to Dr. Federline, the trial court found that the malpractice occurred when the EKG was allegedly misread on December 31, 1995 and that plaintiffs had knowledge of this error on January 1, 1996 when Mr. Bertoiniere returned to the hospital and was diagnosed with a heart attack. The court concluded that the malpractice against Dr. Federline was prescribed, as it was filed on January 8, 1997, one year plus seven days from the discovery of Dr. Federline's action in failing to diagnose a heart attack.
Plaintiffs now appeal from this ruling arguing that prescription runs not from the date of the wrongful act, but from the damage incurred. Plaintiffs contend the damage incurred by the patient in this case was the stroke he suffered on January 9, 1996, and his malpractice claim filed on January 8, 1997 is therefore timely.
Law and Analysis
The prescriptive period for medical malpractice actions is contained in La. R.S. 9:5628(A) and provides as follows:
No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, *332 dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.
A reading of La. R.S. 9:5628 shows that the statute sets forth two prescriptive limits within which to bring a medical malpractice action, namely one year from the date of the alleged act or one year from the date of discovery with a three year limitation from the date of the alleged act, omission or neglect. Campo v. Correa, 01-2707 (La.6/21/02), 828 So. 2d 502, 509; Hebert v. Doctors Memorial Hosp., 486 So. 2d 717 (La.1986).
Ordinarily, the movant bears the burden of proof on trial of the peremptory exception, including the objection of prescription. SS v. State, Dept. of Social Services, 02-831 (La.12/4/02), 831 So. 2d 926, 931. It is only where a petition reveals on its face that prescription has run that the burden shifts to the plaintiff to show that his action has not prescribed. SS v. State, 831 So.2d at 931. The burden remains with the movant where the plaintiff's pleadings make "a prima facie showing" that the suit was filed within the delays set forth in La. R.S. 9:5628. Campo v. Correa, 01-2707 (La.6/21/02), 828 So. 2d 502, 509. A petition should not be found prescribed on its face if it is brought within one year of the date of discovery and facts alleged with particularity in the petition show that the patient was unaware of malpractice prior to the alleged date of discovery, and the delay in filing suit was not due to willful, negligent, or unreasonable action of the patient. Id.
Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. A prescriptive period will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start running of prescription. Nevertheless, a plaintiff's mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. Even if a malpractice victim is aware that an undesirable condition has developed after the medical treatment, prescription will not run as long as it was reasonable for the plaintiff not to recognize that the condition might be treatment related. The ultimate issue is the reasonableness of the patient's action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendant's conduct. Campo v. Correa, 01-2707 (La.6/21/02), 828 So. 2d 502, 510-11 (citations omitted.)
In the present case, plaintiffs name Dr. Federline as a defendant in their second *333 supplemental and amending petition and allege as follows:
On or about December 31, 1995, August M. Bertoniere, a 52 year old male, appeared about 7:00 a.m., Sunday, at the Emergency Room of East Jefferson General Hospital ("East Jeff") with complaints of chest pains. He was examined by Michael Federline, M.D., who ordered an EKG, which was interpreted as normal, and discharged petitioner with a diagnosis of "Musculoskeletal pain, left shoulder pain". In truth and in fact, the EKG revealed a coronary blockage indicating a myocardial infarction in progress and that Mr. Bertoniere should have been immediately admitted to the hospital and treated.
In plaintiffs' original petition, plaintiffs allege that Mr. Bertoniere returned to the emergency room with complaints of recurrent chest pains on January 1, 1996, and that an EKG performed on this date was abnormal and indicated he had suffered a myocardial infarction or a heart attack. He further alleges in this petition that Mr. Bertoniere suffered a stroke on January 9, 1996 based on a failure to give adequate orders upon his discharge.
Plaintiffs' petition does not specifically allege when the negligence of Dr. Federline in interpreting the EKG result was discovered. However, the facts as alleged in the petition indicate that plaintiffs were made aware on January 1, 1996 that Mr. Bertoniere had suffered a heart attack. This information was sufficient to put plaintiffs on notice that Dr. Federline's interpretation of the EKG performed on the previous date was inaccurate, or at least excite their attention and put them on guard and call for inquiry. Thus, the allegations of plaintiffs' petition indicates that plaintiffs knew or should have known of Dr. Federline's alleged negligence on January 1, 1996 when they were informed he sustained a heart attack.
Plaintiffs' medical malpractice claim was filed on January 8, 1997 and the original petition for damages was filed on January 9, 1997. As plaintiffs' petition shows that more than one year elapsed from plaintiffs' knowledge of Dr. Federline's negligence, the petition indicates the claims have prescribed on its face, and plaintiff has the burden of proof to show that the action has not prescribed. Our review of the record fails to indicate that plaintiffs have met this burden.
Plaintiffs argued in the trial court and on appeal that prescription begins to run from the date damages are incurred, rather from the date of the wrongful act. They contend that damages were sustained in this case is the date Mr. Bertoniere suffered a stroke, January 9, 1996. Accordingly, they contend that the claim for damages was filed within the one year prescriptive period proscribed by La. R.S. 9:5628 and is therefore timely.
However, although we do not dispute that prescription begins to runs from the date damages are sustained as provided in La. C.C. art. 3492, we fail to find any factual support in the record for plaintiffs' contention that the stroke sustained by Mr. Bertoniere constitutes the damages sustained by Dr. Federline's negligence. Rather, the record indicates that the alleged wrongful act of Dr. Federline occurred in the emergency room on December 31, 1995. The damage incurred as a result of this alleged wrongful act was the heart attack which was diagnosed and communicated to plaintiffs on January 1, 1996. The stroke which was suffered by Mr. Bertoinere on January 9, 1996 was not incurred as a result of any wrongful act on the part of Dr. Federline. Nothing in the record suggests that Dr. Federline's actions or inactions on December 31, 1995 in *334 any way contributed to the stroke which Mr. Bertoniere eventually sustained.
Further, we fail to find that prescription was suspended by the theory of continuing-torts. The allegations against Dr. Federline are independent, separate and distinct from the allegations asserted against the other named physicians. The alleged misinterpretation of the EKG is not inextricably tied to Dr. Nutting's subsequent cardiology treatment. Thus, these are two separate allegations of malpractice which result in two separate prescription dates. Dr. Federline's negligence constituted a "single breach of duty" and is therefore not subject to the theory of continuing-tort. See, Medical Review Panel for Claim of Moses, In re, 00-2643 (La.5/25/01), 788 So. 2d 1173, 1187.
Further, when Mr. Bertoniere was diagnosed with a heart attack on January 1, 1996, plaintiffs were put on notice or at least were called to inquiry as to whether Dr. Federline may have misinterpreted the results of the EKG which had been performed the previous day. We agree with the determination of the trial court that a reasonable person would have been put on immediate inquiry on January 1, 1996 when Mr. Bertoniere returned to the emergency room and was diagnosed with a heart attack.
Accordingly, for the reasons assigned herein, we find that the trial court correctly determined that the prescriptive period for the alleged negligence of Dr. Michael Federline began on January 1, 1996 when plaintiffs knew or should have known of the alleged wrongful acts. Pursuant to the one year prescriptive period for medical malpractice actions contained in La. R.S. 9:5628, we find that plaintiffs' claims asserted on January 8, 1997 have prescribed as to Dr. Federline. The judgment of the trial court is therefore affirmed at plaintiffs' costs.
AFFIRMED.
NOTES
[1] The record also indicates that plaintiffs notified the Louisiana Patient's Compensation Fund of its claim against these physicians by letter dated January 9, 1997, although the acknowledgement of this letter also shows that the claim was filed on January 9, 1997. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1548727/ | 25 F.2d 387 (1928)
UNITED STATES INDUSTRIAL CHEMICAL CO., Inc., et al.
v.
THEROZ CO.
No. 2607.
Circuit Court of Appeals, Fourth Circuit.
April 10, 1928.
Frederic P. Warfield, Lawrence Bristol, and Charles E. Hughes, all of New York City (Hersey Egginton and G. Willard Rich, both of New York City, on the brief), for appellants and cross-appellees.
Livingston Gifford, of New York City (Gifford & Scull and Newton A. Burgess, all of New York City, on the brief), for appellee and cross-appellant.
Before WADDILL, PARKER, and NORTHCOTT, Circuit Judges.
PARKER, Circuit Judge.
The Theroz Company, as assignee of letters patent Nos. 1,262,267 and 1,262,268, issued to Jacob Schaub, and 1,313,878, issued to Henry M. Brigham, brought this suit against the United *388 States Industrial Chemical Company, Inc., and the Sterno Corporation, for infringement of these patents. The defendants pleaded anticipation and lack of invention, and denied infringement. The District Court held the two Schaub patents valid and infringed, and referred the case to a master for an accounting. The Brigham patent was held void, on the ground that it was anticipated by the Schaub patents. All parties have appealed.
The patents in suit cover an artificial fuel, the principal constituents of which are alcohol and nitrocellulose, and also the process by which it is made. This fuel is one of the products popularly known as solid alcohol, and is produced by dissolving nitrocellulose in commercial methyl alcohol, which contains acetone, thickening the resulting colloid by the addition of commercial ethyl alcohol, which contains water, and then coagulating or jellifying it by the injection of tiny streamlets of water, or of commercial ethyl alcohol containing water. The difference between the two Schaub patents is that No. 1,262,267 prescribes the use of ethyl alcohol as a thickener and as a coagulant, whereas in No. 1,262,268 water is used as a coagulant and no ethyl alcohol whatever is used.
The Brigham patent, which was obtained some time after the Schaub patents by the attorney who represented Schaub, prescribes the use of dehydrated ethyl alcohol and acetone as a solvent of the nitrocellulose, and of water or a mixture of water and commercial ethyl alcohol as a coagulant. Manifestly the only difference between this method and that of the Schaub patents consists in the use of dehydrated ethyl alcohol and acetone, instead of commercial methyl alcohol, as a solvent; but, as this was merely the substitution of known equivalents well-recognized as such in the art, there was no novelty in the Brigham patent, and the learned District Judge properly held it void for that reason. Crouch v. Roemer, 103 U. S. 797, 799, 26 L. Ed. 426; Smith v. Nichols, 21 Wall. (88 U. S.) 112, 119.[1] The cross-appeal deals only with the validity of this patent, and need not be further considered.
The first question for our consideration on the appeal proper is the validity of the Schaub patents, which defendants assail as being void for lack of novelty and invention generally, and specifically because of anticipation. This involves, of course, a consideration of the prior art, the knowledge, achievements, and progress of which are accurately and painstakingly set forth in the opinion of the District Judge (14 F.[2d] 629), and need not be repeated here. It is sufficient to say that the prior art in the solid alcohol industry disclosed two classes of products: (1) A spongy soap, containing alcohol in its pores; and (2) a mixture of alcohol, ether, and nitrocellulose, formed by dissolving the nitrocellulose in alcohol and ether, and solidifying the colloid thus formed by evaporating a part of the ether.
Belonging to the first class of products was the "Sterno" or "canned heat" manufactured and sold by the defendant Sterno Corporation during the years 1914 to 1920, and until that corporation began to infringe the patents of complainant. This soap product, however, was subject to a number of objections. The soap would melt during combustion, and the alcohol would spread, producing extended flames, which were offensive and dangerous. After combustion, there would be an objectionable residue. And, if the product were kept for any considerable length of time, dessication would take place, resulting in loss of weight and combustibility. To obviate these objections the ether-evaporation process was tried, but was never successful. It involved a considerable fire hazard and was entirely too expensive, because of the loss of ether, which was evaporated to bring about solidification of the remainder of the mixture. The product itself was objectionable, as it gave off the odor of ether while burning, and contained enough ether with the alcohol to make it not entirely free from danger. As stated, this ether evaporation process was never successful; and, although defendants purchased the Poulton patent covering the process, they never attempted to make use of it, but continued to manufacture the unsatisfactory soap product until the adoption of the infringing process involved in this suit.
It is manifest, we think, that the inventions of Schaub were not anticipated, either by the soap product or by the product of the ether-evaporation process. His product differs from the soap product, in that, instead of the fusible and noncombustible soap, it has a framework of nitrocellulose, which is combustible and leaves no residue. It differs from the product of the ether-evaporation process, in that it contains no ether and gives off no ordor of ether when burning. The process of manufacture, which is also covered by the patents, differs radically from the processes used in manufacturing the other products. The difference between it and the process used in producing the soap product is so obvious as not to require comment. The ether-evaporation process is also radically different. Although in this process methyl alcohol containing acetone is used as a *389 solvent of the nitrocellulose, ether is also an essential ingredient of the mixture; and coagulation is secured, not by the addition of water, or of commercial ethyl alcohol containing water, but by evaporation of the ether, which, as stated above, is a dangerous, expensive, and commercially impractical method. Schaub's product and the process by which it is produced, therefore, is not merely an improvement over prior products and methods, but both the product and the process are radically different from and greatly superior to anything theretofore known in the industry.
Defendants rely also upon the process of the Haddon British patent of 1907 as an anticipation of the inventions covered by the Schaub patents; but this contention in manifestly unsound. Although the process of the Haddon patent involved dissolving nitrocellulose in methyl alcohol, and coagulating the colloid thus formed by the use of water or ethyl alcohol containing water, it was used, not to produce a fuel in which the alcohol would be retained in the pores of a nitrocellulose structure, but to produce a strand of artificial silk from which all alcohol would be eliminated. The problem with which it dealt was the direct antithesis of that in the solid alcohol industry. What was desired there was to obtain a filament or thread of nitrocellulose, from which all liquid which had been used in its dissolution should be eliminated. Here the problem was to coagulate the nitrocellulose as a framework in such a way as to retain as much liquid as possible.
It was not a new discovery in either invention that nitrocellulose could be dissolved in commercial methyl alcohol containing acetone. Nor was it new that nitrocellulose thus dissolved could be coagulated by the use of water, or of ethyl alcohol containing water. What was new in the Haddon patent was the silk-like thread produced from nitrocellulose and the process by which it was produced. What is new in the Schaub patents is the artificial fuel having a nitrocellulose framework, which contains in its pores and pockets nothing but alcohol (plus only the minute quantity of water contained in commercial alcohol), and the process by which this artificial fuel is produced. The only similarity in the processes is that they depend upon the same natural laws and the same qualities of the ingredients used; but, of course, this does not render one an anticipation of the other. No one is given a patent on natural laws or on the chemical properties of matter. The products of the patents are entirely different. The processes are entirely different. And complete knowledge of all the disclosures of the Haddon patent would not have suggested the product or the process of the Schaub patents.
Passing from the contentions as to anticipation, we come to the broader contentions of lack of novelty and invention upon which defendants chiefly rely. Here defendants make two contentions: (1) That Schaub obtained a patent on information given him by employees of the Du Pont Company embodying knowledge familiar to the industry; and (2) that the patents embrace merely the operation of well-understood natural laws and matters which were of common knowledge in the art.
The first of these contentions was examined very minutely by the learned District Judge, who arrived at the conclusion that the Schaub patents were not based upon information furnished by the Du Pont employees, but upon experiments conducted by Schaub and discoveries made in the course of these experiments. See 14 F.(2d) at 633 and 634. We have considered the evidence carefully and we find ourselves in accord with his conclusion regarding the matter. Aside from the testimony of Schaub as to his experiments and discoveries and the corroborating evidence offered to sustain him, it appears that the Du Pont Company itself was at the time engaged in an attempt to produce a commercially practical solid alcohol, and was experimenting on a method for producing same which it subsequently abandoned as a failure. This would seem to effectually negative the theory that a successful method for accomplishing the desired result was a matter of common knowledge to its employees.
There was considerable conflict in the testimony, or in the inferences to be drawn therefrom, as to what assistance was rendered Schaub by these Du Pont employees, who were sent to assist him in experiments which he was making with a nitrocellulose solution purchased from the Du Pont Company; but the trial judge saw and heard the witnesses, and his findings on the evidence ought not be disturbed, unless we are satisfied that he misapprehended the evidence or went against the clear weight thereof. U. S. v. United Shoe Machinery Co., 247 U. S. 32, 41, 38 S. Ct. 473, 62 L. Ed. 968; Adamson v. Gilliland, 242 U. S. 350, 137 S. Ct. 169, 61 L. Ed. 356; Wolf Mineral Process Corporation v. Minerals Separation North American Corporation (C. C. A. 4th) 18 F. (2d) 483; International Organization, United *390 Mine Workers of America, v. Red Jacket Consolidated Coal & Coke Co. (C. C. A. 4th) 18 F.(2d) 839.
Defendants make much in their brief of Schaub's ignorance with respect to the fact that it is the acetone contained in commercial methyl alcohol which is the solvent of nitrocellulose and that it is the water contained in commercial ethyl alcohol which is the coagulant. But we are not impressed with this argument. Schaub was experimenting with alcohol of the commercial grades; and if, through such experiments, he discovered a way to attain the result which he was seeking, and correctly described it in his application for a patent, it makes no difference whether or not he understood the chemical theory or the natural laws underlying the process. A partial enumeration of the great inventions and discoveries which have involved the use of forces and elements not understood by the inventors themselves would unduly lengthen this opinion. And if it be true that Schaub stumbled upon an important invention without understanding the reasons for what he had accomplished, it will not have been the first time that truth has been withheld from the wise and learned and revealed to the humble seeker. What was said by Mr. Justice McKenna, speaking for the Supreme Court in Diamond Rubber Co. v. Consol. Tire Co., 220 U. S. 428, 435, 436, 31 S. Ct. 444, 447 (55 L. Ed. 527), is a sufficient answer to this position of defendants. Said he:
"A patentee may be baldly empirical, seeing nothing beyond his experiments and the result; yet, if he has added a new and valuable article to the world's utilities, he is entitled to the rank and protection of an inventor. And how can it take from his merit that he may not know all of the forces which he has brought into operation? It is certainly not necessary that he understand or be able to state the scientific principles underlying his invention, and it is immaterial whether he can stand a successful examination as to the speculative ideas involved [citing cases]. He must, indeed, make such disclosure and description of his invention that it may be put into practice. In this he must be clear. He must not put forth a puzzle for invention or experiment to solve, but the description is sufficient if those skilled in the art can understand it. This satisfies the law, which only requires as a condition of its protection that the world be given something new and that the world be taught how to use it. It is no concern of the world whether the principle upon which the new construction acts be obvious or obscure, so that it inheres in the new construction."
We come, then, to the contention that the Schaub patents are void for lack of invention, because they embrace merely matters which were of common knowledge in the art and which involve merely the application of well-understood natural laws. This contention is based upon the fact that it was well known that nitrocellulose could be dissolved in commercial methyl alcohol containing acetone, and that water or ethyl alcohol containing water was a coagulant of the nitrocellulose contained in such a solution. But the answer to this contention is that it was not known that by injecting water, or ethyl alcohol containing water, in a number of minute streamlets into the colloid formed of nitrocellulose dissolved in alcohol, the colloid could be coagulated in such a way that the alcohol would be contained in the pores and pockets of a nitrocellulose framework or structure. This was what Schaub accomplished, and herein lies his invention. His patents, of course, do not give him the right to monopolize the mere dissolving of nitrocellulose by the use of acetone, or of methyl alcohol containing acetone. Neither do they give him a monopoly upon the coagulation of the colloid thus formed by water, or ethyl alcohol containing water. These were the things which were known in the prior art. What they do give him a monopoly on is the process of making a solid alcohol fuel by the process which he invented; that is to say, by taking a colloid in which nitrocellulose had been dissolved by the use of methyl alcohol containing acetone and coagulating it by injecting tiny streamlets of water, or of ethyl alcohol containing water, in such a way that they will permeate every portion of the colloid and produce a porous nitrocellulose framework in which the alcohol will be contained.
It is said the injection of the water in the manner prescribed by the Schaub patents, or as is done by defendants, is an obvious and simple matter, and does not entitle Schaub to a patent. It may appear obvious and simple now that Schaub has taught the world how to do it; but the question is, Was it simple or obvious before it was done? Thousands of dollars had been spent and countless experiments had been performed in fruitless endeavors to accomplish the result which Schaub accomplished; and if the method which he adopted was simple and obvious, it seems that the defendants would have adopted it, instead of continuing to manufacture the admittedly inferior soap *391 product, and instead of buying a patent involving the use of the dangerous and expensive ether-evaporation process. The answer, of course, is that the process of the Schaub patents was not obvious; and, to quote again from the opinion of the Supreme Court in the case of Diamond Rubber Co. v. Consolidated Tire Co., 220 U. S. 428, 434, 435, 31 S. Ct. 444, 447 (55 L. Ed. 527):
"Its simplicity should not blind us as to its character. Many things, and the patent law abounds in illustrations, seem obvious after they have been done, and, `in the light of the accomplished result,' it is often a matter of wonder how they so long `eluded the search of the discoverer and set at defiance the speculations of inventive genius.' Pearl v. Ocean Mills, Fed. Cas. No. 10,876, 11 Off. Gaz. 2. Knowledge after the event is always easy, and problems once solved present no difficulties, indeed, may be represented as never having had any, and expert witnesses may be brought forward to show that the new thing which seemed to have eluded the search of the world was always ready at hand and easy to be seen by a merely skillful attention."
The process of Schaub involves more than the adoption of an ordinary spraying process for mixing water with the colloid. There was nothing novel, of course, in spraying water. It was novel, however, to spray or inject water, or ethyl alcohol containing water, in tiny streamlets into a colloid composed of nitrocellulose dissolved in methyl alcohol in the peculiar manner necessary to produce a coagulation which would give a nitrocellulose framework in the pores and pockets of which the alcohol would be contained. In other words, the dissolving of nitrocellulose by the use of methyl alcohol was old. The coagulation of nitrocellulose so dissolved by water or ethyl alcohol containing water was old. The use of a spray in other processes was, of course, old. But the use of the three together in a process for producing a fuel in which alcohol would be contained in the pores and pockets of the coagulated nitrocellulose framework was new, and the product resulting from the use of the process was also new.
The problem which Schaub had to solve was to produce an artificial fuel, which would retain all the liquids as well as solids used in its production, and which would be completely consumed in combustion. Nitrocellulose was the obvious solid, and alcohol was the obvious liquid, to use in such a fuel, if they could be combined; but up to that time it had not been discovered how to combine them in a solid, except by the impractical ether-evaporation process. Schaub succeeded in evolving a process in which the use of ether was eliminated, and all of the solids and liquids used were retained in the final product, which was completely combustible. His process was not simple, but involved a number of distinct operations. First, the nitrocellulose, which was to serve as a framework of the product, was to be dissolved in methyl alcohol, which was one of the liquids desired. The resulting colloid was to be thickened by the addition of ethyl alcohol, another of the liquids desired. The colloid was then to be coagulated by the injection of tiny streamlets of water, or ethyl alcohol containing water. The importance of this last step in the process is apparent, when it is remembered that the effect of the coagulant is to solidify almost immediately that part of the colloid with which it first comes in contact, and thus surround itself with a solid wall and thereby limit its effect. To overcome this tendency it was necessary that the coagulant be carried into every part of the colloid simultaneously, and this was accomplished by the use of the tiny tubes or pipes injecting the coagulant in a flowing column of the colloid. To say that Schaub has accomplished nothing is absurd. He has given the world a new product, by devising a process which had never been employed prior to the time that he employed it. To see that, in the discovery of this new fuel and the process by which it may be produced, he has invented something new and useful, requires only that we apply the "acid test of common sense" suggested in the brief of defendants.
The principles of law applicable are elementary and are well stated, with citation of the supporting authorities, in 20 R. C. L. pp. 1125, 1126, as follows:
"A combination is a composition of elements, some of which may be old and others new, or all old or all new. It is, however, the combination that is the invention, and is as much a unit in contemplation of law as a single or noncomposite instrument. The authorities establish the following propositions respecting the patentability of devices or processes of this character: (1) That a combination is patentable if it produces new and useful results, though all its constituents were well known and in common use before it was made, provided the results are a product of the combination, and not a mere aggregate of several results, each the product of one of the combined elements. (2) If it produces a different force, effect, or result in the combined forces or processes from *392 that given by their separate parts, and a new result is given by their union. (3) If it either forms a new machine of distinct character or formation, or produces a result which is not the mere aggregate of separate contributions, but is due to the joint and cooperating action of all the elements. (4) When the several elements of which it is composed produce by their joint action either a new and useful result, or an old result in a cheaper or otherwise more advantageous way."
The patentability of Schaub's invention is supported by every criterion here laid down. First, it produces a new and useful result, and this result is a product of the combination, and not the mere aggregate of several results; second, it produces a different result in the combined forces or processes from that given by their separate parts, and a new result is given by their union; third, it produces a result which is not the mere aggregate of separate contributions, but is due to the joint and co-operating action of all the elements; and, fourth, the several elements of which the potential product is composed produce by their joint action a new and useful result.
We have considered defendants' contention as to the insufficiency of the claims of the Schaub patents to protect the process of complainants; but we think that these contentions are without merit. The specifications and the terms used in the claims are sufficiently definite to guide those skilled in the art and to enable them to produce the patented article, and this is all that is required. Eames v. Andrews, 122 U. S. 40, 55, 7 S. Ct. 1073, 30 L. Ed. 1064; Minerals Separation Co. v. Hyde, 242 U. S. 261, 271, 37 S. Ct. 82, 61 L. Ed. 286; Eibel Process Co. v. Paper Co., 261 U. S. 45, 65, 43 S. Ct. 322, 67 L. Ed. 523. Schaub made a useful discovery which substantially advanced the art and his patents are to be liberally construed. Eibel Process Co. v. Paper Co., supra; Winans v. Denmead, 15 How. 341, 14 L. Ed. 717.
Coming, then, to the question of infringement, we think there can be no doubt that both as to product and process the Schaub patents are infringed by the product and process of defendants. Indeed the fact that defendants have followed Schaub's process so slavishly is further proof, if further proof were needed, of the element of invention contained therein. Schaub dissolves nitrocellulose in commercial methyl alcohol containing acetone and adds ethyl alcohol. Defendants dissolve the nitrocellulose in dehydrated ethyl alcohol to which methyl alcohol containing acetone or acetone itself is added. As it is well known that acetone is the solvent of nitrocellulose, defendants are merely using known equivalents, even in the matter of the dissolution of the nitrocellulose. See Fuller v. Yentzer, 94 U. S. 288, 297, 24 L. Ed. 103. As a coagulant, Schaub injects water or ethyl alcohol containing water.
Defendants, having already added dehydrated ethyl alcohol, i. e., ethyl alcohol without water, inject only the water. Schaub, in order to bring the coagulant into contact with every part of the colloid, so that it will thoroughly and quickly permeate it, injects the coagulant through tiny pipes projected into a flowing column of the colloid, so that every part of the column may be reached by the tiny streamlets of the coagulant flowing in the same direction with the column. Defendants do not use the tiny pipes, but squirt the coagulant under pressure in tiny streamlets into small cans of the colloid. This process in nature and result is substantially the same as that used by Schaub. The fact that, after attempting to buy the Schaub patents from complainant and failing to do so, defendants, in adopting the infringing method, could think of no way of mixing water with the colloid, so as to produce the desired result, except a method which is substantially the same as that used by Schaub, is proof, not only of infringement, but also that the mixing of water with the colloid, so as to produce the kind of coagulation desired, was not such a simple matter as defendants would have it appear.
Defendants insist that they are not guilty of infringement, because they say that the nitrocellulose which they use is dissolved by the ethyl alcohol, and that methyl alcohol is used merely as a denaturant because of governmental requirement. Without deciding whether they would or would not be guilty of infringement, if it should appear that the nitrocellulose used by them was in fact dissolved by the ethyl alcohol alone, and that the methyl alcohol was added merely as a denaturant, we agree with the judge below that they have not shown this. It appears, on the contrary, that they have added acetone to their dissolving solution in quantities above the amount required by the government for denaturing purposes, and the analysis of their product clearly shows the use of methyl alcohol and acetone in proportions too great to be explained on the theory of their use as denaturants alone.
A number of minor contentions were *393 made by defendants, all of which we have carefully examined but find to be without merit. There was no error, and the decree of the District Court is affirmed.
Affirmed.
NOTES
[1] 22 L. Ed. 566. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590320/ | 972 So.2d 11 (2008)
Julia W. LANGE, David L. Lange, James S. Whitaker, Jr. and James S. Whitaker, Sr., by and through the Executrix of the Estate, Joyce Whitaker, Appellants
v.
CITY OF BATESVILLE, Appellee.
No. 2007-CA-00533-COA.
Court of Appeals of Mississippi.
January 8, 2008.
*13 Edward P. Connell, Charles M. Merkel, Clarksdale, attorneys for appellants.
Benjamin E. Griffith, Cleveland, Michael Stephen Carr, Brookhaven, attorneys for appellee.
Before LEE, P.J., IRVING and ROBERTS, JJ.
ROBERTS, J., for the Court.
SUMMARY OF THE CASE
¶ 1. The appellants (the Whitakers) and Panola County entered into an agreement under which the appellants agreed to give the county 70,000 cubic yards of dirt to be used for future construction in exchange for a "public road" the county would build on the appellants' land. After the county realized it was financially unable to complete the project, the City of Batesville *14 (the City) agreed to take over the project and the agreement with the appellants. Confusion over the specifics of the road arose, and the Whitakers began their legal battle with a bill of exceptions that ultimately led to their current complaint for breach of contract filed with the Circuit Court of Panola County. The City subsequently filed a motion for summary judgment, which the trial court granted. This appeal followed.
FACTS AND PROCEDURAL HISTORY
¶ 2. With the current appeal, the parties find themselves before this Court for the second time. See Lange v. City of Batesville, 832 So.2d 1236 (Miss.Ct.App.2002) (Lange I). As a majority of the underlying facts relevant to the current review were previously stated in sufficient detail in Lange I we now restate those facts verbatim.
Panola County developed plans for construction of an arena on property east of Interstate 55 and south of Highway 6 East in Batesville, Mississippi. The County's architect, the Warrior Group, LTD, prepared drawings for what was called the "Arena Project." Those drawings included both the layout of the buildings to be constructed as well as parking lots and a five-lane road leading from the project and intersecting with Highway 6. Also included was a topographical map detailing the extent to which certain portions of the property would be leveled.
On July 31, 1996, Panola County entered into an agreement for a temporary easement [the Agreement] with [the Whitakers]. The Whitakers granted to Panola County "a temporary right of entry and temporary easement" to a certain parcel of property which was to the east of the Arena Project property. The Whitaker property and the Arena Project property shared a common boundary. The temporary easement allowed Panola County to enter the Whitaker property for the purpose of removing 70,000 cubic yards of dirt. The project ultimately required 100,000 cubic yards of dirt. Once the removal was complete, the easement and right of entry would terminate.
Several conditions were placed upon the grant of the easement. The condition which is the subject of this litigation reads as follows:
The Grantee [County] has plans to build an expo center and is about to embark upon Phase I thereof. If the Grantee commences Phase 2 of such project within two (2) years of the date hereof, then the Grantors [the Whitakers] agree to dedicate to the county such part of the above described 5.47 acres as may be needed for a public road. If Phase 2 is not commenced within two (2) years but the County has evidenced good faith to commence same within a reasonable period of time, then the Grantors agree to extend the aforesaid two (2) year period for a reasonable time.
The County also agreed to transfer to the Whitakers a .11 acre parcel of property to the east of the road, but only if a road was built.
The County later determined that it did not have the financial resources to continue with the Arena Project. The County began negotiations for transferring ownership to and completing the project by the City of Batesville. The County, in a letter dated August 3, 1998, requested that the negotiations include a promise by the City to honor the agreement it had entered with the Whitakers concerning the possible construction of a public road.
*15 The County and City signed an agreement on June 16, 1999. The City agreed to complete only Phase I of the Arena Project. The agreement specifically stated that Phase I consisted solely "of the construction of a Stall barn and Multi-Plex Arena." The agreement referred to the plans drawn by the Warrior Group, LTD. The City specifically refused to agree to the construction of any other parts of the project shown on those plans. The City also specifically agreed to "honor the Agreement for Temporary Easement between the County and James S. Whitaker et al [sic] dated July 31, 1996. . . ." A copy of the temporary easement was attached to the agreement.
While the Arena Project was proceeding, a new hospital was constructed on property located west of it. Also proposed was the construction of [a] Wal-Mart SuperCenter between Interstate 55 and the new hospital. For clarity, we note that the Whitaker property was to the east of the Arena Project, while both the hospital and the Wal-Mart store were to the west. All these projects were south of the major west-east road, which was Highway 6.
At a February 18, 2000 meeting of the Board of Alderman for the City, discussion turned to the Arena Project. The minutes note that the "need and placement of roads in the area was also discussed." The minutes note that "Whitaker Road is to be a five lane road." Presumably, this is a reference to the five-lane public road shown on the plans prepared by the Warrior Group, LTD, and the public road that was to be constructed should Phase 2 of the Arena Project commence.
At a May 2, 2000 meeting, the minutes show that the assistant city attorney was authorized by the Board "to draw up appropriate documents to move forward on the agreement between the County and Mr. Whitaker that the City has agreed to honor." A memorandum provided to the Whitakers requested that they sign and have notarized a deed to the City "in fulfillment of [the] agreement with the County." On May 23, 2000, the Whitakers executed a deed donating to the City 4.81 acres of property for the proposed road. The deed did not include specifications for the road such as how many lanes the road might be or when its construction would be completed.
At a September 5, 2000 meeting, the Board decided to delay determining the layout of the roads in the Arena Project area. However, the Board stated that as to the arena, "the main road will be the east most road agreed to in the original agreement between the county and land owners. . . ." The minutes were later amended to specify that the eastern-most road would be the main road if there were two entrances to the property. The Board also authorized a traffic study for the hospital and civic arena area.
At a September 19, 2000 meeting, the minutes show that James "Doc" Whitaker and John Hyneman were present. Mr. Hyneman had donated to the County a portion of his property for construction of the new hospital. Wal-Mart wished to locate its proposed SuperCenter on the remainder of the property owned by Mr. Hyneman near the hospital. The minutes note that both Whitaker and Hyneman "stated their opinions as to the location of the main [road] to this area." The administrator of the hospital also provided the Board with his preference for location of the main entrance to the area from Highway 6. The Board was informed that the existing *16 entrance was "not adequate for the hospital traffic."
At the October 3, 2000 meeting, the Board discussed in executive session "the location of a large retail outlet near the new hospital." When the Board returned to its public meeting, a motion was adopted that the city engineer be ordered to "draw a road design leaving the current entrance off Highway 6 and the frontage road as is and showing construction of an entrance and road at the east side of the city's property with a road `T-ing' off this `new' entrance and road and running westerly to tie into the hospital road network and thereafter to submit this design layout to the business prospect desiring to construct a retail outlet northwesterly of the new hospital for its consideration." This option would provide a road on the Whitaker property.
Two weeks later, on October 17, 2000, the Board again discussed the issue of road design in the area of the Arena Project. The assistant city attorney stated that Wal-Mart did not approve the road design proposed during the last meeting. The Board decided to adopt "the road configuration as proposed by Wal-Mart in the letters of its attorney. . . ." The construction of this road configuration was made contingent upon the following: (1) obtaining title to two parcels of land, (2) the removal of a building through which the road would pass, (3) funding, and (4) "matters involving the bidding and construction process." The minutes of this meeting note that James "Doc" Whitaker and his attorney were present and objected to Wal-Mart's proposal.
The Whitakers appealed this decision by filing a bill of exceptions. The Whitakers argued that the action of the Board in adopting the Wal-Mart proposal was an "arbitrary and capricious decision of the City of Batesville to alter or ignore its often-stated and often-confirmed obligation to build the `main' or primary road on the strip of land donated, for that purpose, to the City in May of 2000." The Whitakers alleged that the City's decision devalued their property and adversely impacted negotiations entered into with other parties about the sale or development of their property. The Whitakers also alleged that their constitutional rights had been violated.
The circuit court found that "the decision of the Batesville Board of Alderman changing the route and location of the primary road to serve a newly constructed community hospital and other commercial developments was not arbitrary and capricious and should be affirmed."
Lange, 832 So.2d at (¶¶ 2-15) (footnote omitted).
¶ 3. During their first appeal to this Court, the Whitakers argued that the City breached the contract between them by agreeing to build what would become House-Carlson Road "at the direction of a competing developer and a major retailer." Id. at (¶¶ 13, 17). They requested the City commence building a road consistent with the May 23, 2000 deed or, in the alternative, damages. Id. We held that the issue of breach was not ripe for review, and "until there is a breach, we may not properly determine exactly what obligations the City has as to the specifics of a road." Id. at (¶ 22).
¶ 4. In April 2001, the Whitakers filed suit in the Northern District of Mississippi, but the action was stayed pending this Court's determination of Lange I. Subsequent to Lange I, the City filed a motion for summary judgment. In the interim, the City completed construction of Whitaker Road in January 2004. In April 2005, *17 the district court granted the City's motion based upon the doctrines of collateral estoppel and Rooker-Feldman. Specifically, the district court ruled that the issue of whether the Whitakers were entitled to the "main" road was foreclosed by Lange I. The district court further explained that other issues raised by the Whitakers, one of which was a taking claim, were so intertwined with this Court's decision in Lange I that they were also precluded from federal court consideration by the Rooker-Feldman doctrine. Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Ct. of App. v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).
¶ 5. On appeal of the district court's ruling, the Fifth Circuit Court of Appeals affirmed the district court's holding based upon collateral estoppel, but vacated the trial court's decision to dismiss a taking claim raised by the Whitakers based upon Rooker-Feldman. Nevertheless, the Fifth Circuit dismissed the claim without prejudice as it determined it was not ripe for review. Following the Fifth Circuit's dismissal, the Whitakers initiated the current cause of action in the Circuit Court of Panola County on January 19, 2006, asserting breach of contract. The City subsequently filed a motion for summary judgment, which was granted by the trial court. The Whitakers now appeal and raise the following issues:
I. WHETHER THE TRIAL COURT ERRED BY FAILING TO CONSIDER PAROL EVIDENCE.
II. WHETHER THE TRIAL COURT ERRED IN HOLDING THAT THE WHITAKERS' BEACH OF CONTRACT CLAIMS WERE BARRED BY THE DOCTRINE OF COLLATERAL ESTOPPEL.
III. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT THE WHITAKERS WERE NOT ENTITLED TO DAMAGES.
STANDARD OF REVIEW
¶ 6. The standard of review employed by an appellate court on review of disposition of a case on summary judgment is clear.
In reviewing a trial court's grant or denial of summary judgment, our well-established standard of review is de novo. Hubbard v. Wansley, 954 So.2d 951, 956 [(¶ 9)] (Miss.2007). That being said, summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Miss. R. Civ. P. 56(c). Additionally, "[t]he evidence must be viewed in the light most favorable to the party against whom the motion has been made." Green v. Allendale Planting Co., 954 So.2d 1032, 1037 [(¶ 8)] (Miss.2007) (quoting Price v. Purdue Pharma Co., 920 So.2d 479, 483 [(¶ 10)] (Miss.2006)). "The moving party has the burden of demonstrating that [no] genuine issue of material fact[s] exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact." Id. (quoting Howard v. City of Biloxi, 943 So.2d 751, 754 [(¶ 4)] (Miss.Ct.App.2006)).
One South, Inc. v. Hollowell, 963 So.2d 1156(¶ 6) (Miss.2007).
ANALYSIS
I. WHETHER THE TRIAL COURT ERRED BY FAILING TO CONSIDER PAROL EVIDENCE.
¶ 7. The trial court opined that parol evidence should not have been considered when determining the meaning of "public *18 road" as used by the parties. Based partly on Martin v. Newell, 198 Miss. 809, 23 So.2d 796 (1945), the court reasoned that because a board of supervisors or aldermen can only act through its minutes, evidence outside its minutes could not be used to determine its obligations. On appeal, the Whitakers argue the trial court erred in ruling as such for three separate reasons. They argue the phrase is ambiguous, that the agreement is incomplete because it does not recite the specifics of the "public road" to be built and, finally, that the parol evidence rule is not applicable to a determination of the true consideration to a contract. We will address each sub-issue separately.
A. Whether the phrase "public road" is ambiguous as used by the parties.
¶ 8. The Whitakers first argue that extrinsic evidence should have been considered by the lower court because the phrase "public road" is ambiguous, requiring examination of evidence outside the purview of the parol evidence rule. In support, Lange cites Kerl v. Smith, 96 Miss. 827, 51 So. 3 (1910), a case in which parol evidence was considered to determine the meaning of the word "timber," and Hattiesburg Plumbing Co. v. Carmichael & Co., 80 Miss. 66, 31 So. 536 (1901), where the supreme court found the term "artesian" ambiguous requiring extrinsic evidence to glean its meaning as used in the contract. As these cases show, it is firmly established that when the language of a contract is ambiguous parol evidence may be admitted to clarify the meaning of the ambiguity. Aron v. Panola-Quitman Grain Corp., 490 So.2d 891, 892-93 (Miss. 1986). However, contracts in which one of the parties is a board of supervisors or other public board are treated differently.
¶ 9. As firmly established as the parol evidence rule is, and its exception for ambiguities, it is also firmly rooted in this state's judicial precedent that "public boards speak only through their minutes and their actions are evidenced solely by entries on their minutes." Thompson v. Jones County Cmty. Hosp., 352 So.2d 795, 796 (Miss.1977); Burdsal v. Marshall County, 937 So.2d 45(¶ 8) (Miss.Ct.App. 2006). One reason for the evidentiary exclusivity of a board's minutes was stated as such:
We also think it was error for the court to permit individual members of the board of supervisors to testify what the board did, and what the board understood, and what the board had authorized to be done in the premises. A board of supervisors can act only as a body, and its act must be evidenced by an entry on its minutes. The minutes of the board of supervisors are the sole and exclusive evidence of what the board did. The individuals composing the board cannot act for the county, nor officially in reference to the county's business, except as authorized by law, and the minutes of the board of supervisors must be the repository and the evidence of their official acts.
Thompson, 352 So.2d at 796 (quoting Smith v. Board of Supervisors, 124 Miss. 36, 41, 86 So. 707, 709 (1920) (emphasis added)).
¶ 10. Additionally, the Thompson court further expounded on the basis for the rule as follows:
When official authority is conferred upon a board or commission consisting of three or more members, the authority so conferred must be exercised by a legal quorum, and, as a general rule, the decisions to be executed or the contracts to be awarded by the board must be determined or decided upon only in or at *19 a lawfully convened session, and the proceedings must be entered upon the minutes, of the board or commission. The reasons for the requirements aforesaid are: (1) That when authority is conferred upon a board, the public is entitled to the judgment of the board after an examination of a proposal and a discussion of it among the members to the end that the result reached will represent the wisdom of the majority rather than the opinion or preference of some individual member; and (2) that the decision or order when made shall not be subject to the uncertainties of the recollection of individual witnesses of what transpired, but that the action taken will be evidenced by a written memorial entered upon the minutes at the time, and to which all the public may have access to see what was actually done.
Thompson, 352 So.2d at 796 (quoting Lee County v. James, 178 Miss. 554, 558-559, 174 So. 76, 77 (1937)) (emphasis added). However, that a board may only speak through its minutes does not equate to the notion that the entirety of a contract must be reproduced within a board's minutes. See Thompson, 352 So.2d at 797. Plans, specifications and other papers specifically referred to by the board in its minutes have been held to constitute a part of the contract. Id. Similarly, the contract "may be enforced if enough of the terms and conditions of the contract are contained in the minutes for [a] determination of the liabilities and obligations of the contracting parties without the necessity of resorting to other evidence." Thompson, 352 So.2d at 797 (emphasis added). However, the individual or group contracting with a board carries the responsibility to ensure the contract is properly recorded. Id.
¶ 11. The Whitakers fail to cite any precedent, and we can similarly find none, for the proposition that the parol evidence rule can be defeated, ambiguity or not, when dealing with a contract of a municipality. That is, that the ambiguity exception to the parol evidence rule trumps the doctrine of exclusivity of a board's minutes. Without such, we hold that application of the parol evidence rule's exception for ambiguity would sit in direct contradiction to the precedent cited supra, and has no application to contracts entered into by a public board. It would allow individuals the ability to state what they believed "the board did, and what the board understood, and what the board had authorized to be done" when the only evidence of what the board did, what the board understood, and what the board had authorized to be done must come from its minutes.
¶ 12. Additionally, any ambiguity in an agreement must be construed against the drafters. AmSouth Bank v. Quimby, 963 So.2d 1145, 1152(¶ 19) (Miss. 2007). "If the minutes do not reflect what is required [by the contract], the private party can insist that a correction be entered." JLG Concrete Prods. Co. v. City of Grenada, 722 So.2d 1283, 1287 (Miss.Ct. App.1998). While the issues of JLG Concrete did not include the interpretation of a possible ambiguity, the statement supra is nonetheless instructive on a private party's responsibility in regard to protecting his or her interests when contracting with a municipality, and, by logical implication, the consequences of failing to ensure that the minutes appropriately reflect what the private party believes is required by the contract. Therefore, if evidence of a board's actions is limited to its minutes any ambiguity in those minutes must be construed against the private party as its shouldered the responsibility to see that the contract was recorded to its specifications. Additionally, any interpretation of an ambiguity must be done without the aid of parol evidence. This issue is without merit.
*20 B. Whether the agreement is incomplete.
¶ 13. The Whitakers next argue that the agreement is incomplete because it does not give specifics of the "public road" that was to be built. In support, they cite to Quick & Grice v. Ashley, 227 Miss. 273, 86 So.2d 40 (1956). In Ashley, Ashley entered into a contract with Quick & Grice to construct a well on Ashley's property. Id., 227 Miss. at 276, 86 So.2d at 41. After two unsuccessful attempts to complete an operable well Ashley brought suit. Id., 227 Miss. at 277-278, 86 So.2d at 41-42. In allowing testimony on the specifications and warranties promised by Quick and Grice, the supreme court stated,
[t]he original order did not state whether it was to be a water well, an oil well, a gas well, or a sulphur well. It called for a rod pump and the appellant used a jet pump. There were also changes between the original order and the finished well as to the type of fixtures which were used in connection with the well.
Id., 227 Miss. at 279, 86 So.2d at 42. As will be explained in issue III, the City was obligated to build a five-lane public road that would serve as the main, east-most road leading to the arena. While the agreement and subsequent discussions by the board of aldermen, as evinced by its minutes, obviously did not go into great detail on the specifics of Whitaker Road, they did describe the road with sufficient detail so as to remove the contract from consideration as incomplete, and with comparison with the contract in Ashley. Therefore, this issue is without merit.
C. Whether parol evidence should have been admitted to clarify the consideration contemplated in the Agreement.
¶ 14. The Whitakers' last argument, that parol evidence should have been allowed, focuses on the consideration involved in the agreement. They argue that because the agreement states "for and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration" extrinsic evidence is allowed to show what the true consideration for the agreement was, and cite State Highway Dep't v. Duckworth, 178 Miss. 35, 172 So. 148 (1937) in support. However, this argument is also thwarted by the fact that boards may only speak through their minutes. Id., 178 Miss. at 43, 172 So. at 150.
¶ 15. In Duckworth, Duckworth entered into an agreement with the State Highway Department (SHD) that would allow the SHD to enter the Duckworths' land in order to construct a portion of Highway 49. Id., 178 Miss. at 39, 172 So. at 148. The deed executed between the Duckworths and the state granting the state access to the land stated, in pertinent part, "[f]or and in consideration of Two Hundred Sixty-eight & 25/100 ($268.25) dollars and other valuable consideration." Id., 178 Miss. at 40, 172 So. at 149. However, a subsequent requisition, ordered on the minutes of the board, and auditor's voucher stated the $ 268.25 was "in full settlement of claims and accounts." Id., 178 Miss. at 41, 172 So. at 149. The Duckworths claimed they had an oral agreement with the SHD that approaches would be built and maintained to enable the Duckworths to be able to cross from one side of their land to the other. Id. The trial court subsequently allowed them to present parol evidence that the approaches were the "other valuable consideration" contemplated in the deed's language. Id., 178 Miss. at 39-41, 172 So. at 148-149.
¶ 16. On appeal, the Duckworths supported the trial court's ruling by arguing that, while parol evidence was not admissible to contradict the recitals of a contract, *21 it is admissible to show the true consideration. Id., 178 Miss. at 43, 172 So. at 150. The supreme court reversed the lower court on two separate grounds. Id., 178 Miss. at 43-44, 172 So. at 150. First, the supreme court stated the Duckworths' argument was not applicable to the case as the "full settlement" language included in the voucher and requisition constituted full settlement when the Duckworths accepted payment. Id., 178 Miss. at 43, 172 So. at 150. Second, the court stated:
It is familiar law that boards can only bind the public by contracts entered on their minutes, and that the members, individually, of such a board as the Highway Commission, could not authorize an agent to bind it unless an order therefor was entered upon its minutes authorizing the giving of such authority, or unless the order constituting a contract recited the making thereof, and its approval by the Highway Commission. We think this principle is well established.
It was therefore error to admit oral proof of an agreement antecedent to, or contemporaneous with, the execution of the deed, and there was no authority, under the facts of this record, for the rendition of the judgment . . . against the Highway [Commission][.]
Id. (citations omitted). Therefore, as with evidence explaining ambiguity, evidence outside a board's minutes offered to explain the consideration of an agreement with a public board is not admissible. This issue is without merit.
II. WHETHER THE TRIAL COURT ERRED IN HOLDING THAT THE WHITAKERS' BEACH OF CONTRACT CLAIMS WERE BARRED BY THE DOCTRINE OF COLLATERAL ESTOPPEL.
¶ 17. Under the "FACTS" section of their complaint filed with the Circuit Court of Panola County, the Whitakers alleged that Whitaker Road "differs from what they were originally promised as it is not a main intersection or access to the south of Highway 6, it has no traffic light, and it is not part of the connecting artery joining Highway 35 and Highway 6." The Whitakers claimed they "suffered a serious devaluation of their property as a result of not receiving a road as originally contracted for in a reasonable amount of time." Under the heading "BREACH OF CONTRACT" within their complaint, the Whitakers again stated "the City breached the agreement by failing to perform its promises. Specifically, the City failed to construct Whitaker Road as the main road into the area in question in a timely manner. . . ."
¶ 18. The trial court found that in their first appeal to this Court, the Whitakers "included . . . a breach of contract action seeking money damages claiming that the City's decision devalued their property. . . ." Accordingly, the trial court held "that any argument regarding the building of House-Carlson Road [was a breach of contract], that is that [Whitaker Road] is not the `main' road, is precluded by the doctrine of collateral estoppel," reasoning that the exact issue was addressed in Lange I. As Lange I was at the heart of the trial court's determination of this issue, it is necessary to examine our holding in that case.
¶ 19. At the time, the Whitakers' claim came before this Court for the first time House-Carlson Road had been approved by the Board, if not already built, and Whitaker Road was not yet in existence. The Whitakers filed a bill of exceptions in protest of the Board's decision, claiming it "was an `arbitrary and capricious decision of the City of Batesville to alter or ignore its often-stated and often-confirmed obligation to build the "main" or primary *22 road on the strip of land donated . . .,'" but were ultimately unsuccessful. Lange, 832 So.2d at (¶ 14). They appealed this decision to the Circuit Court of Panola County, which found the Board's decision was not arbitrary and capricious. The Whitakers appealed to this Court and included a breach of contract claim despite the fact we were under the same appellate standard of review that constrained the circuit court. Namely,
The standard of review of an order of a Board of Supervisors is the same standard which applies in appeals from the decisions of administrative agencies. Barnes v. Board of Supervisors, 553 So.2d 508, 511 (Miss.1989). "The decision of an administrative agency is not to be disturbed unless the agency order was unsupported by substantial evidence; was arbitrary or capricious; was beyond the agency's scope or powers; or violated the constitutional or statutory rights of the aggrieved party." Board of Law Enforcement Officers Standards & Training v. Butler, 672 So.2d 1196, 1199 (Miss.1996). See also Van Meter v. City of Greenwood, 724 So.2d 925 (Miss. App.1998).
Ladner v. Harrison County Bd. of Supervisors, 793 So.2d 637, 638(¶ 6) (Miss.2001).
¶ 20. In impliedly holding that the Board's decision was not arbitrary and capricious, we explained that the Whitakers' breach of contract claim was premature. We stated, "[t]he Whitakers base their claim for breach of contract upon their belief that Whitaker Road will not or cannot now be built" given the City's decision to build House-Carlson Road. Lange, 832 So.2d at (¶ 20). However, there was no evidence in the record to show that Whitaker Road could not still be built in accordance with the agreement and pertinent minutes of the Board. Essentially, we held that the Whitakers' breach of contract claims were not ripe for review, and "[u]ntil there is a breach, we may not properly determine exactly what obligations the City has as to the specifics of a road." Id. at (¶ 22).
¶ 21. Admittedly, implied in this statement is a holding that the City did not breach the agreement solely by constructing House-Carlson Road. However, that is not to say the Whitakers' claims of breach were barred by collateral estoppel. The doctrine of collateral estoppel was recently discussed by the supreme court. The high court stated:
Under the doctrine of collateral estoppel, "[an] appellant is precluded from relitigating in the present suit specific questions actually litigated and determined by and essential to the judgment in the prior suit, even though a different cause of action is the subject of the present suit." Lyle Cashion Co. v. McKendrick, 227 Miss. 894, 87 So.2d 289, 293 (Miss.1956). Further, "collateral estoppel, unlike the broader question of res judicata, applies only to questions actually litigated in a prior suit, and not to questions which might have been litigated." Dunaway v. W.H. Hopper & Associates, 422 So.2d 749, 751 (Miss. 1982) (quoting Johnson v. Bagby, 252 Miss. 125, 171 So.2d 327 (Miss.1965)).
Mayor & Bd. of Aldermen v. Homebuilders Ass'n of Miss., Inc., 932 So.2d 44, 59(¶ 64) (Miss.2006).
¶ 22. Our holding in Lange I did not stand for the proposition that the City could not breach the agreement at some time in the future. This could occur either by the City failing to build Whitaker Road as per the agreement, or, as identified in Lange I, "by simply never beginning construction." Id. at (¶ 23). At the time the Whitakers filed their most recent complaint with the Circuit Court of Panola County, the issue of whether Whitaker *23 Road, as built, breached the agreement between the City and the Whitakers had yet to be decided. As such, our holding in Lange I did not preclude a future action based upon breach of contract.
¶ 23. With the completion of Whitaker Road in January 2004, the Whitakers were free to bring their most recent action alleging breach of contract. However, given the standard of review we employ upon a review of the trial court's grant of summary judgment, we find that the parameters of Whitaker Road, as built, do not violate the agreement. That is, the City did not breach the agreement, but fulfilled its obligations to the Whitakers in building Whitaker Road. Therefore, while the Whitakers' claim was not barred by the doctrine of collateral estoppel, we nonetheless affirm the trial court's grant of summary judgment as there was no breach of the agreement by the City. See issue III. This issue is without merit.
III. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT THE WHITAKERS WERE NOT ENTITLED TO DAMAGES.
¶ 24. Finding the issue of whether "public road" was ambiguous to be effectively irrelevant, the trial court continued and held there was no breach of the agreement stemming from the timing of the construction of Whitaker Road. Examining the record before us, we agree. The agreement provided for commencement of the road by 1998, or within two years of the agreement. Additionally, if building of the road was not commenced within two years, the agreement specified that it would be commenced within a reasonable time period. The issue of what is a reasonable time for performance is a question of law. Fortune Furniture Mfg., Inc. v. Pate's Electronic Co., 356 So.2d 1176, 1178 (Miss.1978). Whitaker Road was completed in January 2004, one year prior to the completion of the Civic Center to which it led, and four years after the Whitakers deeded over the property upon which it was built. Given the procedural history and activity of this case, the uncertainty of obligation that would certainly accompany that, and the timing of completion of the road in regard to a completed Civic Center and grant of the land, we find that Whitaker Road was completed within a reasonable time.
¶ 25. Additionally, as identified in issue II, the record also affirmatively shows the City did not otherwise breach the Agreement in building Whitaker Road. The minutes of the Panola County Board of Supervisors from July 31, 1996, stated the relevant portion of the agreement for a temporary easement as such:
The Grantee [County] has plans to build an expo center and is about to embark upon Phase I thereof. If the Grantee commences Phase 2 of such project within two (2) years of the date hereof, then the Grantors [the Whitakers] agree to dedicate to the county such part of the above described 5.47 acres as may be needed for a public road. If Phase 2 is not commenced within two (2) years but the County has evidenced good faith to commence same within a reasonable period of time, then the Grantors agree to extend the aforesaid two (2) year period for a reasonable time.
(emphasis added). The City took over the project and agreed to honor the agreement between the County and the Whitakers, but refused to bind themselves to any other understandings between the County and the Whitakers. Minutes from subsequent meetings of the Board show that it was decided that Whitaker Road was to be a five-lane road and that, in regard to the arena, "the main road will be the east most *24 road agreed to in the original agreement between the county and the land owners."
¶ 26. From the minutes referenced above it is clear that the City agreed to build a five-lane public road that would be the main, east-most road leading to the arena. Public is defined as "[o]f, concerning, or affecting the community or the people[,]" or "[m]aintained for or used by the people or community." The American Heritage College Dictionary, 1106 (3d ed.1993). Whitaker Road satisfies all these requirements. It is a five-lane "public road" that is the main, east-most road leading to the arena. Under the facts before us, we find the City did not breach the agreement.
¶ 27. "When a plaintiff shows breach of the contract, damages may also be shown." Eastline Corp. v. Marion Apartments, Ltd., 524 So.2d 582, 585 (Miss.1988). As the Whitakers have failed to show the City breached the agreement, the issue of damages is moot. Therefore, this issue is without merit.
¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592569/ | 192 N.W.2d 139 (1971)
187 Neb. 502
Edward A. JINDRA, Appellee,
v.
S. M. S. TRUCKING CO., a Corporation and Henry J. Nelson, Appellants.
No. 37986.
Supreme Court of Nebraska.
December 3, 1971.
*140 Deutsch & Hagen, Thomas H. DeLay, Norfolk, for appellants.
George H. Moyer, Jr., Moyer & Moyer, Madison, for appellee.
Heard before WHITE, C. J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.
CLINTON, Justice.
This is an action for property damage and personal injury growing out of a truck and farm tractor collision on a public highway. The plaintiff is the owner and operator of the tractor. The defendants are the owner and driver respectively of the truck. The jury returned a verdict in the amount of $2,745.80 for the plaintiff and the defendants appeal. Ten assignments of error are made but they boil down to two issues which are: (1) Did the trial court abuse its discretion in refusing to grant the defendants a continuance because of the unavailability of the defendant Nelson as a witness. (2) Was the evidence sufficient to submit to the jury the questions of future pain and suffering and permanent disability. Contingent upon the determination of this issue is the related question of the propriety of the relevant instructions to the jury. We affirm.
On November 19, 1970, 4 days before the trial date, the defendants' attorney filed a motion for a continuance founded upon the unavailability of the defendant Nelson as a witness. The affidavit in support of the motion shows the case was referred to counsel on October 10, 1968, by the insurance carrier of the defendants; at that time the defendant trucking company was bankrupt and had been dissolved, and information was furnished to counsel that Nelson lived at a certain address in Fremont, Nebraska; in September 1969, a letter was mailed to Nelson at his Fremont address notifying him that the case was on the trial list; later during that month counsel was notified by Nelson's mother that he lived in Arizona, that she *141 had heard from him by telephone, and he had stated he would come to testify if his expenses were paid; the case was then continued for various reasons; in October 1970, the insurance carrier began to try to locate Nelson who had moved without leaving an address; efforts to locate Nelson had failed; and apparently at no time had there been any personal communication between counsel and Nelson. The court denied the continuance because it "was not timely filed, that there was no showing that the Defendant, Henry J. Nelson, would or could be present at a later time and for the further reason that said case has been on file since August 19, 1968, and has already been passed for trial through three terms and is the oldest case for trial on the docket * * *." A motion for continuance is addressed to the sound discretion of the court, and in the absence of a showing of an abuse of discretion, a ruling on a motion for a continuance will not be disturbed. White Motor Co. v. Reynolds, 179 Neb. 91, 136 N.W.2d 437. We cannot say that there was any abuse of discretion in this case.
The evidence on issue (2) is substantially as follows: The collision caused the plaintiff to bump his head against the tractor cab and he was bounced around in the cab. The plaintiff testified: "Well, I had a bump on my head, and then my shoulder hurts. It hurt then and it still does." He could not work much the next day. He sought medical assistance a couple of months later. He saw the doctor twice. Pills were prescribed. He next consulted a doctor about 2 years later, apparently in preparation for trial. He saw him twice. Before the accident he had no trouble with his neck and shoulder. The shoulder still hurt at trial time. The pain is between the base of the neck and the tip of the shoulder. It interferes with hard work such as "pitch corn, use a fork or shovel or raise something heavy." He has to have extra help on this account.
The physician who examined the plaintiff on the two occasions within a few months before trial was the only medical witness. He testified that X-rays disclosed a very minimal arthritis on the vertebrae of the neck and that he had no opinion as to the cause or whether it antedated the accident. He then testified (seemingly contradictorily) that the accident aggravated the condition. Without objection to foundation or otherwise he then testified: "Q Doctor, do you have an opinion as to whether or not Mr. Jindra will continue to suffer pain as a result of the accident on May 18, 1968? A Yes. Q Would you give us your opinion, please. A Yes, he will. * * * Q And would you describe for the Court and Jury, please, Doctor, what disability that he was experiencing when you last saw him ? A He complained to me of the same disability he had at the time of his examination approximately two months earlier, limitation of motion of the left shoulder and pain up into the neck fromshoulder and neck. I found no change." He estimated the plaintiff's disability at 15 percent of the body as a whole. He further testified that on the occasion of his last examination of the plaintiff he found no change in plaintiff's condition. Again without objection he testified: "Q Doctor, what are the prospects in your opinion, and again within a reasonable medical certainty, for improvement in Mr. Jindra's condition ? A I must be guarded; I would expect him to continue to have trouble, but I can't testify that he will," and further stated that as long as plaintiff continued farming it is reasonably medically certain that his disability will continue and he will continue to have pain. On recross examination he stated he could not state the extent of aggravation. On redirect he stated that the limitation of motion in the shoulder has caused "pain and inflammatory changes in muscles" and "the muscles of the neck are tightly packed around the cervical spine, and an injury or a swelling or an irritation of the joints of the cervical spine will in turn cause inflammatory change in the muscles and then they will go into a sort of spasm: and when they do, the motion of that muscle is limited." *142 Again without objection he testified: "Q Doctor, will you tell the Court and Jury whether or not this limitation of motion to which you have referred in your opinion, again within a reasonable medical certainty, is caused by the injury that Mr. Jindra suffered in the accident on May 17, 1968? A Yes."
The defendants essentially argue that because the doctor testified that he could not state the arthritis preceded the accident there is no basis for the testimony of aggravation and therefore the testimony is legally insufficient. This overlooks the fact that the doctor's testimony was based on his acceptance of the plaintiff's statement as shown by the history he took that the plaintiff had no symptoms prior to the accident and they started at that time. As already noted the plaintiff testified that he had had no prior problems.
The court instructed the jury as follows: "You will disregard any reference during the trial of this case to any statement about the aggravation of a pre-existing arthritic condition, and you shall not allow any damages for pain and suffering or for disability resulting from any such arthritic condition." The jury could find under the evidence that the plaintiff's symptoms and disability were wholly caused by the accident and the injuries suffered at that time.
The defendants assign as error the refusal of the court to give their requested instruction No. 1. The substance of the requested instruction was given in the instruction quoted above. There is no error here.
The defendants assign as error the giving of the instructions submitting to the jury the questions of future pain and suffering and permanent injury. The doctor's opinion on these points previously referred to and to which no objection was made as to foundation or otherwise was sufficient for these issues to be submitted and to support a finding by the jury that the plaintiff would suffer future and/or permanent pain, suffering, and disability. The testimony of the doctor was not without probative force. The jury was properly instructed that plaintiff could recover for such of these elements as were "reasonably certain to be experienced in the future." This is the test. Boardman v. McNeff, 177 Neb. 534, 129 N.W.2d 457. The instructions given are those approved by rule of this court. There is no error here.
Defendants assign as error the instruction given by the court on reducing damages for future pain and disability to their present worth. The instruction given was that approved by rule of this court. There is no error here.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3044478/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-1619
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of Nebraska
*
Chad Salcedo, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: May 21, 2008
Filed: May 27, 2008
___________
Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Chad Salcedo appeals the prison sentence the district court1 imposed after he
pleaded guilty to conspiring to distribute and possess with intent to distribute 5 grams
or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii),
and 846; and using, carrying, and possessing a firearm during and in relation to a
drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). The court sentenced
Salcedo to consecutive prison terms of 87 months on the drug offense and 60 months
on the firearm offense, for a total of 147 months. His counsel has moved to withdraw
1
The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that
Salcedo’s sentence is unreasonable.
We conclude that Salcedo’s sentence is not unreasonable. Nothing in the record
indicates the court overlooked a relevant factor, gave significant weight to an
improper factor, or made a clear error of judgment in weighing appropriate factors
when it imposed a within-Guidelines-range sentence for Salcedo’s drug offense. See
Rita v. United States, 127 S. Ct. 2456, 2462-68 (2007) (allowing appellate
presumption of reasonableness); United States v. Haack, 403 F.3d 997, 1003-04 (8th
Cir. 2005) (reasonableness factors). Further, the consecutive 60-month sentence was
the statutory minimum for Salcedo’s firearm offense. See 18 U.S.C. § 924(c)(1)(A),
(D); United States v. Gregg, 451 F.3d 930, 937 (8th Cir. 2006) (rejecting argument
that district court has discretion to determine whether ultimate sentence is reasonable
and to impose non-Guidelines sentence even when portion of sentence is result of
mandatory minimum sentence; United States v. Booker, 543 U.S. 220 (2005), “does
not relate to statutorily-imposed sentences”).
After reviewing the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issues. Accordingly, we grant counsel leave to
withdraw, and we affirm the district court’s judgment.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4558368/ | Fourth Court of Appeals
San Antonio, Texas
August 21, 2020
No. 04-20-00245-CR
The STATE of Texas,
Appellant
v.
Chase Cole NEUMAN,
Appellee
From the County Court, Kinney County, Texas
Trial Court No. 10164CR
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/1590898/ | 972 So. 2d 784 (2007)
Ex parte INTERNATIONAL REFINING & MANUFACTURING CO. d/b/a IRMCO et al.
(In re Bell Carr, Jr., et al.
v.
International Refining & Manufacturing Co. d/b/a IRMCO et al.).
1051084.
Supreme Court of Alabama.
March 23, 2007.
As Modified on Denial of Rehearing May 11, 2007.
*785 Connie Ray Stockham and James M. Smith of Stockham, Carroll & Smith, P.C., Birmingham, for petitioner International Refining & Manufacturing Co. d/b/a IRCO.
Sydney F. Frazier, Jr., and Michael E. Turner of Cabaniss, Johnston, Gardner, Dumas & O'Neal, LLP, Birmingham, for petitioner Nalco Company.
Leslie A. Caldwell of Lusk, Lusk, Dowdy & Caldwell, P.C., Birmingham, for petitioner Amcol Corp.
J. Alex Wyatt and David A. Lee of Parsons, Lee & Juliano, P.C., for petitioner Sunnen Products Co.
Richard Eldon Davis of Cabaniss, Johnston, Gardner, Dumas & O'Neal, LLP, Birmingham, for petitioner Castrol Industrial North America, Inc.
H. Thomas Wells, Jr., Katie Loggins Vreeland, and Edwin B. Nichols of Maynard, Cooper & Gale, P.C., Birmingham, *786 for petitioner Allegheny-Ludlum Corporation.
David B. Hall, Sara M. Turner, and Jason Asbell of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Birmingham, for petitioners AK Steel Corporation, ARMCO Advanced Material Co., ARMCO-Butler Operations, and. The Minster Machine Company.
Michael C. Quillen of Walston, Wells, Anderson & Birchall, LLP, Birmingham, for petitioners American Metal Fibers, Inc., ALRO Steel Corporation, and Lancaster Fibers, Inc.
Joe E. Basenberg and James S. Witcher III of Hand Arendall, LLC, Mobile, for petitioners Tennant Company, Premier Cutting Tools, Inc., Pine Bluff Cutting Tools, Inc., and Reiff & Nestor Co.
Douglas L. McCoy and Leanna Bankester of Hand Arendall, LLC, Mobile, for petitioners Bliss Clearing Niagra, Inc., Pine Bluff Cutting Tools, Inc., Tennant Company, and Reiff & Nestor Co.
Timothy W. Knight of Kee & Selby, LLP, Birmingham, for petitioners Lincoln Electric Company and L-Tec.
James E. Fleenor, Jr., of Battle, Fleenor, Green, Winn, Clemmer, LLP, Birmingham, for petitioner Buckman Laboratories, Inc.
Clifton Wayne Jefferis of Forman, Perry, Watkins, Krutz & Tardy, LLP, Jackson, Mississippi, for petitioner Chemco Manufacturing Company, Inc.
James H. McLemore of Capell & Howard, P.C., Montgomery, for petitioner Contacts, Metals & Welding, Inc.
Charles Fleming, Jr., of Huie, Fernambucq & Stewart, LLP, Birmingham, for petitioner D.A. Stuart Company.
Stanley A. Cash of Huie, Fernambucq & Stewart, LLP, Birmingham, for petitioners Rochester-Midland, Hollingsworth & Vose Company, and Houghton International, Inc.
Frank H. Lankford of Huie, Fernambucq & Stewart, LLP, Birmingham, for petitioners Hollingsworth & Vose Company and Houghton International, Inc.
F. Grey Redditt, Jr., and Timothy A. Clarke of Vickers, Riis, Murray & Curran, LLC, Mobile, for petitioner Delta Foremost Chemical Corporation.
Matthew Robinett of Norman, Wood, Kendrick & Turner, Birmingham, for petitioner Inco Alloys International, Inc.
John Whitaker of Miller, Hamilton, Snider & Odom, LLC, Birmingham; and John Martin Galese of Galese & Ingram, P.C., Birmingham, for petitioner Joamca Chemical Products, Inc.
C. Paul Cavender, Kathryn Morris Willis, and David A. Bragdon of Burr & Forman, LLP, Birmingham, for petitioner Precision Industrial Automation, Inc.
William T. Mills II, J.C. Ireland III, and Larry W. Harper of Porterfield, Harper, Mills & Motlow, Birmingham, for petitioner Regal-Beloit Corporation.
Jere F. White, Jr., Harlan I, Prater IV, Adam K. Peck, John M. Johnson, Andrew S. Nix, Derrick A. Mills, and Philip McCall Bridwell of Lightfoot, Franklin & White, LLC, Birmingham, for petitioners Certified Labs, a division of NCH Corporation, Chemsearch Labs, a division of NCH Corporation, GE Betz, Inc., Henkel Corporation, Loctite Corporation, Parker Anchem, and Tremco Incorporated.
G. Thomas Yearout of Yearout, Spina & Lavelle, Birmingham, for petitioner Research Solvents & Chemicals, Inc.
John C. Pierce and Michael A. Montgomery of Butler, Pappas, Weihmuller, Katz, Craig, LLP, Mobile, for petitioner S.C. Johnson & Son, Inc.
*787 Richard W. Smith and Deborah Alley Smith of Christian & Small, LLP, Birmingham, for petitioner Dexter Corporation n/k/a Invitrogen, Inc.
Apsilah Owens Millsaps and W. Ivey Gilmore, Jr., of Owens & Millsaps, LLP, Tuscaloosa, for petitioners Barksdale Warrior Paper Co. and Nonferrous Products, Inc.
John W. Clark, Jr., and Cynthia N. Williams of Clark, Oncole, Hair & Smith, P.C., Birmingham, for petitioner A.M. Castle & Co.
H.C. Ireland III, Harry W. Harper, F. Brady Rigdon, and Hugh M. Flanagan of Porterfield, Harper, Mills & Motlow, P.A., Birmingham, for petitioner Spartan Chemical Co., Inc.
Sidney J. Hardy of McCranie, Sistrunk, Anzlemo, Hardy, Maxwell, & McDaniel, Metairie, Louisiana, for petitioner NSU Corp.
Charles E. Pearson, Tuscaloosa, and H. Gregory Pearson and Charles E. Harrison of Junkin, Pearson, Harrison & Junkin, L.L.C., Fayette, for respondents.
LYONS, Justice.
International Refining & Manufacturing Co. d/b/a IRMCO and 47 other corporate defendants in the proceeding below ("the petitioners") petition this Court for a writ of mandamus directing the Fayette Circuit
Court to vacate its order denying the petitioners' motions to dismiss the claims against them, or, in the alternative, for a summary judgment. We grant the petition and issue the writ.
Facts and Procedural Background
On November 13, 2003, Bell Carr, Jr., and approximately 320 other former employees at a manufacturing plant operated by Arvin Industries d/b/a Arvin-Meritor, Inc. (hereinafter "the plaintiffs"), sued Arvin-Meritor and six individual defendants, also former employees at the plant, where automotive mufflers were manufactured. The complaint alleged that up until the closing of the plant in May 2002, the plaintiffs suffered harm from "exposure to toxic and dangerous chemicals" that were flushed from the manufacturing machines and eventually circulated into a large pit, which the plaintiffs were responsible for draining and cleaning. In addition to these seven defendants, the original complaint fictitiously named 40 other defendants in the caption and in the body of the complaint.
On May 6, 2005, approximately three years after their last exposure to the chemicals, the plaintiffs filed their first amended complaint, seeking to add 64 new named defendants, including the petitioners, in place of the fictitiously named defendants (hereinafter "the new defendants"), 113 new plaintiffs, as well as additional fictitiously named defendants. The amended complaint reasserted the five claims asserted in the original complaint, but only against the seven original defendants. The first amended complaint also alleged claims of negligence, wantonness, liability under the Alabama Extended Manufacturer's Liability Doctrine, civil conspiracy, and the tort of outrage, but only against the new defendants.
On June 14, 2005, the new defendants removed the case to the United States District Court for the Northern District of Alabama pursuant to the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1453. The district court remanded the five original claims against the seven original defendants to the Fayette Circuit Court because they did not fall within the CAFA. The district court also determined that the claims in the amended complaint against the new defendants did not relate back under Alabama law and did not constitute what it referred to as an "interstate case of national importance." Accordingly, the *788 new claims asserted and the parties added in the amended complaint fell within the exception to federal jurisdiction under CAFA in 28 U.S.C. § 1332(d)(11)(B)(ii)(I),[1] and the district court also remanded the remaining claims to the Fayette Circuit Court.
Upon remand, the new defendants filed motions to dismiss, or, in the alternative, for a summary judgment, on the ground that the claims asserted against them in the amended complaint did not relate back to the date of the filing of the original complaint and are thus barred by the two-year statute of limitations. See § 6-2-38(l), Ala.Code 1975. The trial court conducted a hearing and denied the motions. The new defendants sought a certification to file a permissive appeal under Rule 5, Ma. R.App. P., but the trial court denied the request for the certification. The petitioners then filed this petition for a writ of mandamus.
Standard of Review
"`"[M]andamus is a drastic and extraordinary writ that will be issued only when there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Horton, 711 So. 2d 979, 983 (Ala.1998). "Subject to certain narrow exceptions . . ., the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus." Ex parte Liberty Nat'l Life Ins. Co., 825 So. 2d 758, 761 (Ala.2002) (citing Ex parte Jackson, 780 So. 2d 681, 684 (Ala.2000)).'
"Ex parte Alloy Wheels Int'l, Ltd., 882 So. 2d 819, 821-22 (Ala.2003)."
Ex parte Chemical Lime of Alabama, Inc., 916 So. 2d 594, 596-97 (Ala.2005). This Court has recognized an exception to the general rule that the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by mandamus; that exception applies when the motion the trial court has denied was filed by a newly joined defendant asserting a statute-of-limitations defense based on the plaintiffs failure to state a cause of action against the defendant, who, in the original complaint, was fictitiously named. See, e.g., Ex parte Stover, 663 So. 2d 948, 951-52 (Ala.1995).
Discussion
The petitioners claim that the plaintiffs failed to meet the requirements of fictitious-party practice found in Rule 9(h), Ala. R. Civ. P., and that, therefore, the claims in the amended complaint and the addition of the new defendants do not relate back to the filing, date of the original complaint under Rule 15(c)(4), Ala. R. Civ. P. Accordingly, they argue, those claims are barred by the two-year statute of limitations. The petitioners further contend that the plaintiffs did not act with due diligence in identifying the fictitiously named defendants before they filed their original complaint. We address, first, the threshold issue: whether the original complaint sufficiently stated a cause of action against the fictitiously named defendants to support the relation-back of the new claims in the amended complaint.
Rule 9(h), Ala. R. Civ. P., provides:
"(h) Fictitious Parties. When a party is ignorant of the name of an opposing *789 party and so alleges in the party's pleading, the opposing party may be designated by any name, and when that party's true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name."
Rule 9(h), Ala. R. Civ. P., allows a plaintiff to assert claims against a fictitiously named defendant who is subsequently substituted and named, and those claims will "`relate back to the date of the original complaint if the original complaint adequately described the fictitiously named defendant and stated a claim against such a defendant.'" Ex parte Snow, 764 So. 2d 531, 535 (Ala.1999) (quoting Fulmer v. Clark Equip. Co., 654 So. 2d 45, 46 (Ala. 1995) (emphasis added)). See also Clay v. Walden Joint Venture, 611 So. 2d 254, 255 (Ala.1992) ("[T]he plaintiff must state a cause of action against the fictitiously named party in the body of the original complaint.").
The plaintiffs cite Johnson v. City of Mobile, 475 So. 2d 517, 518-19 (Ala.1985), for the proposition that rules of pleading "`are to be construed liberally to effect the purpose of the rules, and, under the rule of liberal construction, every reasonable intendment and presumption must be made in favor of the pleader.'" Citing Rule 8, Ala. R. Civ. P., and Waters v. Jolly, 582 So. 2d 1048, 1056 (Ala.1991), the plaintiffs further contend that the pleading need only set forth a short, plain statement of the claim showing that the pleader is entitled to relief, the purpose of which is to give the defendant adequate notice of the claims against it. We agree with the plaintiffs that the purpose of notice pleading is to provide defendants adequate notice of the claims against them. The same notice-pleading rule applies to fictitious-party pleading. See, e.g., Stover, 663 So.2d at 952 ("`Any count in a complaint which would state a cause of action under our liberal notice pleading rules would also state a cause of action against a fictitious party. One need not state with more particularity a cause of action against an unknown party as compared to a named party.'") (quoting Columbia Eng'g Int'l, Ltd. v. Espey, 429 So. 2d 955, 960 (Ala.1983)). The pertinent question, in this case, is whether the plaintiffs' original complaint would have provided the fictitiously named defendants adequate notice of the claims against them.
A complaint stating a claim against a fictitiously named defendant must contain sufficient specificity to put that defendant on notice of the plaintiff s claim if it were to read the complaint. See Phelps v. South Alabama Elec. Coop., 434 So. 2d 234, 237 (Ala.1983) ("`There were no allegations in the body of the complaint charging that the "designer, manufacturer, assembler; distributor, or seller" of the hoist was negligent.' . . . Thus, there was virtually no way for the defendant to be put on notice by the original complaint that it might be a party to that suit.") (holding that the complaint did state a cause of action against the fictitiously named defendant and discussing and distinguishing Walden v. Mineral Equip. Co., 406 So. 2d 385, 389 (Ala.1981)). In other words, merely naming the fictitious party in the style and/or body of the complaint is insufficient; the complaint must describe the actions that form the basis of the cause of action against the fictitiously named defendant. See Stover, 663 So.2d at 951-52 ("In order to state a cause of action against a fictitiously named defendant in the body of the original complaint, the complaint must contain a description of wrongdoing on the part of the fictitiously named defendant.") (quoting Columbia Eng'g Int'l, Ltd. v. Espey, 429 So.2d at 960). Likewise, in Phelps, the Court distinguished Columbia Engineering, in which the Court held that the complaint *790 did not state a cause of action against one of the fictitiously named defendants. In Phelps, this Court noted, "In Columbia Engineering, supra, the opposite result was reached because there was no allegation of what the engineering company did, but only that the `wrongful conduct' of the defendant resulted in injury to the plaintiff" 434 So.2d at 237 (emphasis added).
The original complaint stated five separate causes of action: workers' compensation, co-employee liability, misrepresentation, suppression and concealment, and deceit. Each count specifically named the defendant or defendants against whom that count was directed, but no count even mentioned the fictitiously named defendants. One of the paragraphs describing the fictitiously named defendants states: "References to `defendants' in this complaint will be understood to include fictitious party defendants." Even though the plaintiffs never alleged any of the counts directly against the fictitiously named defendants, they claim that because the paragraphs describing the fictitiously named defendants incorporated those unknown defendants in all references to "defendants," each count that seeks relief against "defendants" implicitly incorporates the fictitiously named defendants.
This argument is inconsistent with the plain language of the plaintiffs' original complaint. Of the five counts in that complaint, only the counts alleging misrepresentation, suppression and concealment, and deceit stated a claim not against a specifically named defendant or defendants, but against the more general "defendants." The claims seeking workers' compensation and alleging co-employee liability sought relief against specific defendants. Each of the five counts, however, specifically identified the individual defendants against whom the count was directed. The complaint cannot be read to invoke the fictitiously named defendants every time the word "defendants" was used in describing a count simply because the word "defendants" was used to describe the individual defendants specifically named in each count. That is not to say, however, that the original complaint wholly failed to state a cognizable cause of action against any of the fictitiously named defendants.
The plaintiffs' original complaint includes the fictitiously named defendants in the caption as well as in the body. Paragraphs 4 and 5 describe the "fictitious party defendants" as "persons, firms, or corporations, whether singular or plural, who or which caused or contributed to cause death to the plaintiffs decedent[[2]] . . . or who by their acts, omissions, negligence, or wantonness, jointly, severally, or separately caused or contributed to cause the occurrence complained of herein." The original complaint asserts factual allegations against the fictitiously named defendants only in two paragraphs. Paragraph 12 states, in pertinent part, as follows:
"[T]he pit itself required cleaning at least two (2) times a year during the period of the operation of the plant. This cleaning would be accomplished, on orders of the defendants Norman Bobb, John Gary, Ron Goodwin, Todd Morgan, Nina Butler, and/or Richard Estes, and/or fictitious party defendants 1 through 40, by the pit being drained and then cleaned by hand by employees from various other plant departments. . . . "
*791 (Emphasis added.) Likewise, paragraph 14 of the original complaint further describes facts relevant to the cleaning of the pit sufficient to implicate the fictitiously named defendants under the broad construction of the word "defendants." The original complaint contains no other description of any wrongful acts or omissions by the fictitiously named defendants.
Taken together with the claims of negligence and/or wantonness asserted against the fictitiously named defendants in the first amended complaint, these factual allegations adequately describe acts that form the basis of a cause of action against the fictitiously named defendantsnamely, that they ordered the pit to be drained and cleaned by handand thus they comply with the notice-pleading requirement in Stover. However, the cause of action described here supports only claims of negligence and/or wantonness in the context of their co-employees' ordering the plaintiffs to drain and clean the pit by hand. The complaint states no additional facts involving the fictitiously named defendants that would give them adequate notice of other claims of negligence or wantonness stemming from other acts or omissions. From the documents submitted by the petitioners in support of their petition for a writ of mandamus it appears that the 64 new defendants substituted in the amended complaint for the fictitiously named defendants are all corporate defendants. Further, it appears that the five additional claims asserted against the new defendants are all claims arising out of a products-liability cause of action, having nothing to do with co-employees' ordering the plaintiffs to drain and clean the pit by hand.
Neither the new defendants nor the added causes of action fall within the narrow cause of action asserted in the original complaint against the fictitiously named defendants. Therefore, they do not relate back to the filing date of the original complaint. The plaintiffs, however, in their response to the petition, contend that some of their claims nonetheless survive, because, they say, those claims fall within a six-year statute of limitations. See § 6-2-34, Ala.Code 1975. That issue, however, is not before us; our mandamus review extends to reviewing the denial of motions for a dismissal or for a summary judgment that asserted a statute-of-limitations defense only as to fictitious-party practice. See Stover, 663 So.2d at 951-52. The extent to which the amended complaint, filed within six years of the events made the basis of the action but not within two years thereof, states claims not barred by the two-year statute of limitations is a question not before us. However, all claims governed by a statute of limitations that require the application of the doctrine of relation back under fictitious-party practice to survive are due to be dismissed.
Conclusion
We reverse the trial court's order denying the motions to dismiss, or for a summary judgment, and we remand the case for further proceedings, including a determination of the extent to which any claims are timely, without the availability of the relation-back doctrine.
PETITION GRANTED; WRIT ISSUED.
COBB, C.J., and STUART, BOLIN, and MURDOCK, JJ., concur.
NOTES
[1] 28 U.S.C. § 1332(d)(11)(B)(ii)(1) states that "the term `mass action' shall not include any civil action in which . . . all of the claims in the action arise from an event or occurrence in the State in which the action was filed, and that allegedly resulted in injuries in that State. . . ."
[2] Despite our efforts, we can find no reference in the original complaint, other than this one, to an injury resulting in death, although it is altogether possible that one of the approximately 320 plaintiffs named in the original complaint brought a claim for an injury resulting in death. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596056/ | 399 So. 2d 445 (1981)
Rosa Lee REEDER, Appellant,
v.
STATE of Florida, Appellee.
No. 80-332.
District Court of Appeal of Florida, Fifth District.
June 3, 1981.
*446 James B. Gibson, Public Defender and Burke D. Chester, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee and Edward M. Chew, Asst. Atty. Gen., Daytona Beach, for appellee.
COWART, Judge.
Appellant was charged with aggravated assault, a violation of section 784.021(1)(a), Florida Statutes (1979), with the information alleging an assault with a deadly weapon "to-wit: a pistol." Apparently in an attempt to implement section 775.087(1), Florida Statutes (1979), the trial court instructed the jury that punishment for the crime was greater if during the commission of the crime the defendant carries, displays, uses, threatens to use or attempts to use a firearm and submitted verdict forms that included a form for the finding of guilt of aggravated assault as charged with the further proviso in the verdict form for the jury to find that in the commission of said offense the defendant either did or did not use a firearm. The jury found appellant guilty of aggravated assault as charged but also found that during the commission of the offense she did not use a firearm. This appeal is based on a claim that the jury verdict is defective because it is inherently inconsistent.
First we observe that punishment for this type of aggravated assault is not subject to enhancement under section 775.087(1), Florida Statutes (1979). Williams v. State, 358 So. 2d 187 (Fla. 4th DCA 1978). See also Bell v. State, 394 So. 2d 570 (Fla. 5th DCA 1981) [1981 F.L.W. 541].
The jury could have found that an assault occurred and that the pistol or object used constituted a deadly weapon but that the State failed to prove beyond a reasonable doubt that the pistol met the statutory definition of a "firearm." See § 790.001(6), Fla. Stat. (1979); Goswick v. State, 143 So. 2d 817 (Fla. 1962); Warren v. State, 332 So. 2d 361 (Fla. 3d DCA 1976). The jury could also have considered that the aggravated assault occurred as a result of the accused merely threatening to do violence to the person of another with a deadly weapon but have reckoned that to "use a firearm" meant to fire or discharge it. More likely this case illustrates that when criminal procedure directs the jury to concern itself with both the truth of the charges and the consequences of its verdict, its findings as to guilt and its findings relating to matters that legally require a consequence deemed by the jury undesirable, may naturally be inconsistent. Such inconsistency is the price of a "jury pardon" philosophy.
Although expressly extended an opportunity, appellant made no objection as to the form of the verdict before submission to the jury or after the jury returned but before the jury was discharged. We find substantial competent evidence supporting the verdict and do not find the superfluous additional findings of fact sufficient to impeach or invalidate the truth of the verdict.
AFFIRMED.
ORFINGER and FRANK D. UPCHURCH, Jr., JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596061/ | 399 So. 2d 1320 (1981)
VILLE PLATTE CONCRETE SERVICE, INC., Plaintiff-Appellee,
v.
WESTERN CASUALTY & SURETY COMPANY, et al., Defendants-Appellants.
No. 8253.
Court of Appeal of Louisiana, Third Circuit.
June 11, 1981.
*1321 Franklin, Moore & Walsh, Ray C. Dawson, Baton Rouge, for defendants-appellants.
Preston N. Aucoin, Ville Platte, for plaintiff-appellee.
Before GUIDRY, FORET and CUTRER, JJ.
FORET, Judge.
Ville Platte Concrete Service, Inc. (Plaintiff) brought this action on open account to recover the sum of $7,934.75. Defendants are the Western Casualty & Surety Company (Western); the Evangeline Parish Police Jury (Police Jury); and B. J. Gauthier, Inc.
Western filed a third party demand against B. J. Gauthier, Inc., and Deborah Gauthier and B. J. Gauthier, individually, and named the Police Jury as an additional third party defendant by an amended third party petition. The Police Jury filed a peremptory exception to Western's third party demand pleading no cause and no right of action.
Plaintiff's action proceeded to trial where the trial court rendered judgment in its favor and against Western in the principal action.[1] The trial court also dismissed plaintiff's suit against the Police Jury.
Western appeals and presents four issues:
(1) Whether a contract existed between plaintiff and Western for sales on open account;
(2) Whether plaintiff can recover from Western under the "Public Contracts Law" (LSA-R.S. 38:2181 et seq.);
(3) If so, has plaintiff proved its claim against Western, and if so, are the items claimed recoverable under the "Public Contracts Law";
(4) Whether plaintiff may recover attorney's fees.
*1322 Plaintiff has answered the appeal seeking an increase in the amount awarded as attorney's fees and damages for frivolous appeal.
FACTS
B.J. Gauthier, Inc. (the general contractor) undertook the construction of the new Evangeline Parish Courthouse (the Courthouse) located in Ville Platte, Louisiana. Plaintiff is in the business of furnishing concrete and other building materials, together with labor and equipment.
Western was the surety on the performance bond executed by the general contractor in favor of the Police Jury. Eventually, financial problems experienced by the general contractor became so severe that Western had to be called in to complete the courthouse project. Plaintiff became aware of the fact that Western was assisting the general contractor when Western began to pay its bills. This had begun as early as May 23, 1977, when Western paid plaintiff $1,210.56. Western also paid plaintiff a total of $27,616.28 between November 29, 1977 and February 16, 1978 for labor, equipment and materials furnished to the general contractor. Thereafter, plaintiff furnished additional labor, materials and equipment to the general contractor, which was billed $7,934.75.
Western refused to pay these amounts and plaintiff filed two labor and materialman's liens upon the courthouse and parking lot. Plaintiff instituted this action on January 1, 1979, to have those liens recognized and to recover from defendants, in solido, the sum of $7,934.75, which it claimed it had sold to defendants on open account. Plaintiff also sought attorney's fees.
Western failed to answer the petition, and plaintiff entered a default judgment against it on February 28, 1979. The preliminary default was confirmed and judgment was rendered in favor of plaintiff and against Western on March 5, 1979. Western was granted a suspensive appeal, and this Court reversed the trial court's decision in Ville Platte Concrete Service, Inc. v. Western Casualty and Surety Company, 377 So. 2d 532 (La.App. 3 Cir. 1979). There, we found that plaintiff had failed to prove a prima facie case of Western's indebtedness to it and remanded the matter so that more evidence could be adduced.
Meanwhile, Western filed an answer containing a third party demand and named B. J. Gauthier, Deborah Gauthier and B. J. Gauthier, Inc., as third party defendants. Western alleged that third party defendants had executed an indemnity agreement in its favor and that these third party defendants were liable for any judgment rendered against it.
Western filed an amended third party petition shortly thereafter in which it named the Police Jury as an additional third party defendant. Western here alleged that it had notified the Police Jury that it intended to pay the amount claimed by plaintiff provided the Police Jury or its architect would approve the concrete work. Western further alleged that neither the Police Jury nor its architect would approve of this work although they had used the parking lot for two years. Therefore, Western also sought to hold the Police Jury liable for any judgment which might be rendered against it.
The Police Jury filed a peremptory exception pleading no cause and no right of action to Western's third party demand and the exception was sustained by the trial court.
Plaintiff's action came up for hearing a second time on August 5, 1980, and the trial court again rendered judgment in favor of plaintiff and against Western in the sum of $7,934.75 on the principal action, together with $2,650.00 in attorney's fees. Western was granted a suspensive appeal from the judgment.
PLAINTIFF'S ALLEGED CONTRACT WITH WESTERN
Plaintiff alleges that Western orally contracted with it for sales on open account which totaled some $7,934.75. Western denies the existence of any contract, written or oral, between it and plaintiff.
*1323 A creditor suing on open account has the burden of proving that the defendant, alleged to be the debtor, contracted for the sales on open account. Ville Platte Concrete Service, Inc. v. Western Casualty and Surety Company, supra; Frank Brigtsen, Inc. v. Alpha Builders, Inc., 351 So. 2d 777 (La.App. 4 Cir. 1977).
Further, LSA-C.C. Article 2277 provides:
"Art. 2277. Proof of agreements concerning movables or money
Art. 2277. All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances."
A plaintiff may satisfy the requirement of one credible witness, and the phrase "other corroborating circumstances" in LSA-C.C. Article 2277 means general corroboration. Independent proof of every detail of the witness's testimony is not required. Samuels v. Firestone Tire & Rubber Co., 342 So. 2d 661 (La.1977); Ville Platte Concrete Service, Inc. v. Western Casualty and Surety Company, supra; Ethridge v. Merchants Trust and Savings Bank, 389 So. 2d 865 (La.App. 4 Cir. 1980).
E. J. Deville, plaintiff's president and general manager, testified on its behalf. Deville stated that there was an oral agreement between plaintiff and the general contractor under which plaintiff agreed to furnish the labor, materials and equipment necessary for the construction of the parking lot of the courthouse. Deville testified that it was himself, on behalf of plaintiff, and B. J. Gauthier, the general contractor, who entered into this agreement. The invoices introduced into evidence by plaintiff show that the various items and amounts furnished by plaintiff were sold to the general contractor. The invoices also show that the items sold were received by Mike Mehuron, the construction superintendent for the general contractor.
Dempsey Bailey, office manager for Romine and Associates, Inc., testified that Western was one of his firm's customers. He stated that Western had sent him to the construction site when it began to assist the general contractor financially. He testified that it was his job to make sure that the bills paid by Western were for work that had been done properly. He was also to assist the employees of the general contractor in completing the project. Bailey testified that Mike Mehuron was never an employee of Western, although Western had paid his salary on behalf of the general contractor.
Plaintiff argues that Deville testified unequivocally that Western contracted with plaintiff to furnish the necessary materials, labor and equipment for the construction of the parking lot. Deville did testify that Western had "retained" plaintiff to do the work and that Dempsey Bailey had "authorized" this work. However, this was contradicted by the other testimony given by Deville which we noted above. Further, Deville stated that he wasn't sure whether some of the items on the invoices had been requested by Bailey, and he was unable to testify as to any certain point in time when Western took over the project. Deville did testify that B. J. Gauthier remained in control of the project for some time after Western began paying the general contractor's bills. Deville's contradictory testimony is the only evidence in the record which indicates the existence of a contract between plaintiff and Western. There is no corroborating evidence.
We find that plaintiff failed to prove the existence of any contract between it and Western for sales on open account and therefore, plaintiff has no cause of action in open accounts.[2] However, pursuant to the *1324 provisions of LSA-C.C.P. Article 2164[3], we also find that plaintiff has proven the existence of an oral contract between it and the general contractor.
APPLICABILITY OF "PUBLIC CONTRACTS LAW"
Defendant argues that the "Public Contracts Law" is applicable to the issues regarding plaintiff's recovery in this action.
LSA-R.S. 38:2216(A)[4] provides that:
"§ 2216. Written contract and bond
A. When any bid is accepted for the construction or doing of any public works, a written contract shall be entered into by the successful bidder and the public entity letting the contract, and the party to whom the contract is awarded shall furnish good and solvent bond in an amount not less than one-half of the amount of the contract, for the faithful performance of his duties."
LSA-R.S. 38:2241(A) provides that:
"§ 2241. Written contract and bond
A. Whenever the state or any state board or agency or any political subdivision of the state enters into a contract in excess of one thousand dollars for the construction, alteration, or repair of any public works, the official representative of the governing authority shall reduce the contract to writing and have it signed by the parties. He shall require of the contractor a bond with good, solvent, and sufficient surety in a sum not less than fifty percent of the contract price for the faithful performance of the contract with an additional obligation for the payment by the contractor or subcontractor for all work done, labor performed, or material or supplies furnished for the construction, alteration, or repair of any public works, or for transportation and delivery of such materials or supplies to the site of the job by a for hire carrier, or for furnishing materials or supplies for use in machines used in the construction, alteration, or repair of any public works. No modification, omissions, additions in or to the terms of the contract, in the plans or specifications or in the manner and mode of payment shall in any manner affect the obligation of the surety. The bond shall be executed by the contractor with surety or sureties approved by the officials representing the state, state board or agency, or political subdivision and shall be recorded with the contract in the office of the recorder of mortgages in the parish where the work is to be done not later than thirty days after the work has begun."
There can be no doubt that the construction of the Evangeline Parish courthouse is a public work or that the contract between the general contractor and the Police Jury involved amounts in excess of $1,000.00. Therefore, the "Public Contracts Law" governs that contract and the performance bond executed by the general contractor with Western named as the surety thereto.
EXTENT OF PLAINTIFF'S RECOVERY UNDER THE "PUBLIC CONTRACTS LAW"
The jurisprudence is settled that for a claimant to hold the contractor, or surety, liable under LSA-R.S. 38:2241 et seq., he must prove that there was a privity of contract, or that he furnished labor or materials to the contractor or a subcontractor. Harvey Canal Towing Company, Inc. v. Gulf South dredging Company, Inc., 345 So. 2d 567 (La.App. 4 Cir. 1977); Richard and Gaudet v. Housing Authority of City of Lafayette, 323 So. 2d 168 (La.App. 3 Cir. 1975), writ denied, 326 So. 2d 337 (La.1976); Moore v. Coastal Contractors, Inc., 188 *1325 So.2d 467 (La.App. 3 Cir. 1966); Carr Oil Company, Inc. v. Donald G. Lambert Contractor, Inc., 380 So. 2d 157 (La.App. 1 Cir. 1979), writ denied, 383 So. 2d 24 (La.1980).
We have found that plaintiff proved the existence of an oral contract between it and the general contractor. However, defendant argues that plaintiff has failed to prove that some of the items, for which it seeks recovery, were actually sold to the general contractor. It is defendant's contention that Mike Mehuron (the general contractor's construction superintendent) had personally obtained a contract to do some work on the project and that plaintiff cannot distinguish between those items sold to Mehuron in that capacity from those sold to the general contractor.
E. J. Deville testified that Mehuron was billed separately for the items he purchased and that the invoices introduced by plaintiff were for items sold to the general contractor. Each of these invoices specifically states that the items thereon were sold to B. J. Gauthier, Inc., the general contractor. Further, Deville testified that he was actually at the construction site when most of the items were delivered.
Dempsey Bailey testified that he could find no fault with any of the invoices introduced by plaintiff, except for the last one dated March 31, 1978, as he was no longer defendant's representative at that time. Bailey also testified that the reason defendant quit paying plaintiff and others was that defendant had paid out over $200,000.00 on the project without receiving any payments under the general contractor's contract with the Police Jury. Bailey stated that Western's counsel advised that course of action.[5]
Finally, we note that in the amended third party petition filed by Western, it admits that it agreed to pay plaintiff's claim provided the Police Jury or its architect approved the concrete work.
We hold that the record establishes that the trial court's finding that plaintiff provided $7,934.75 worth of labor, materials, and equipment to the general contractor for use in constructing the courthouse's parking lot is not clearly wrong. Arceneaux v. Domingue, 365 So. 2d 1330 (La.1978); Canter v. Koehring Company, 283 So. 2d 716 (La.1973).
Defendant also argues that some of the items listed on the invoices are for equipment rental and therefore, plaintiff cannot recover for these under the "Public Contracts Law".
It is well settled that unless the items which compose the plaintiff's claim form a component part of the completed structure or are consumed in the work, they are not lienable nor are they covered by the contractor's bond given under the provisions of LSA-R.S. 38:2241[6]. Further, it has been held under this rule that an amount claimed for rental of equipment is not covered by a bond given in accordance with LSA-R.S. 38:2241. Martinolich v. Albert, 143 So. 2d 745 (La.App. 1 Cir. 1962); Mayeaux v. Lamco, Inc., 180 So. 2d 425 (La. App. 1 Cir. 1965); Patent Scaffolding Company, Inc. v. Ross Corporation, 172 So. 2d 364 (La.App. 4 Cir. 1965); Louisiana Highway Commission v. McCain, 197 La. 359, 1 So. 2d 545 (1941).
The invoices introduced into evidence by plaintiff clearly show that some of *1326 the items listed thereon are for equipment rental[7]. We find that plaintiff's claim must be reduced by $1,093.00, which is the amount charged for equipment rental. Therefore, we award plaintiff $6,841.75 for work done, labor performed, and materials supplied under its oral contract with the general contractor.
ATTORNEY'S FEES AND FRIVOLOUS APPEAL
The trial court awarded plaintiff $2,650.00 in attorney's fees. Plaintiff has answered the appeal and seeks an increase in that amount.
LSA-R.S. 38:2246 provides:
"§ 2246. Attorney's fees
After amicable demand for payment has been made on the principal and surety and thirty days has elapsed without payment being made, any claimant recovering the full amount of his recorded or sworn claim whether by concursus proceeding or separate suit, shall be allowed ten percent attorney's fees which shall be taxed in the judgment on the amount recovered."
It is well established in our jurisprudence that where any claimant recovers the full amount of his recorded or sworn claim under LSA-R.S. 38:2246, he is entitled to attorney's fees as penalties, but where the claim is debatable and, as in this case, not fully recoverable, the attorney's fees may not be imposed upon the other party. R. J. Ducote Contractors, Inc. v. L. H. Bossier, Inc., 192 So. 2d 179 (La.App. 1 Cir. 1966); Louisiana Highway Commission v. McCain, supra; Normand Company, Inc. v. Abraham, 176 So. 2d 178 (La.App. 4 Cir. 1965); Long Bell Lumber Company v. S. D. Carr Construction Company, supra; Goldberg v. Banta Brothers, 183 La. 10, 162 So. 786 (1935).
We also deny plaintiff's claim for frivolous appeal.
For the above and foregoing reasons, the trial court judgment is affirmed in part and amended in part to reduce the amount awarded plaintiff from $7,934.75 to $6,841.75, and to deny attorney's fees to plaintiff.
Costs of this appeal are assessed three-fourths (¾) to Western Casualty & Surety Company and one-fourth (¼) to Ville Platte Concrete Service, Inc.
AFFIRMED IN PART, AMENDED IN PART.
NOTES
[1] No judgment was rendered by the trial court with respect to B.J. Gauthier, Inc., B.J. Gauthier, or Deborah Gauthier as it was impossible to make service of process on these defendants and third party defendants.
[2] The trial court made no specific finding with respect to the existence of a contract of sale on open account between plaintiff and Western. We note that, had the trial court made such a finding, our review of the record establishes that it would have been clearly wrong. Arceneaux v. Domingue, 365 So. 2d 1330 (La.1978).
[3] "Art. 2164. Scope of appeal and action to be taken; costs
The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable."
[4] The source provision of LSA-R.S. 38:2216(A) is the former LSA-R.S. 38:2213. There is no substantive difference between the two provisions.
[5] The controversy between Western and the Police Jury is now being thrashed out in Federal Court in Opelousas, Louisiana.
[6] We note that in Slagle-Johnson Lumber Company, Inc. v. Landis Construction Co., Inc., 379 So. 2d 479 (La.1980), the Louisiana Supreme Court overruled H. R. Hayes Lumber Co. v. McConnell, 176 La. 431, 146 So. 14 (1932) and held that the "Public Works Act" clearly provided a privilege to all materialmen who furnish materials consumed in the construction of public works, regardless of whether the materials are physically incorporated in the permanent construction. We also note that in Construction Materials, Inc. v. American Fidelity Fire Insurance Co., 388 So. 2d 365 (La.1980), the Louisiana Supreme Court overruled Long Bell Lumber Co. v. S. D. Carr Construction Co., 172 La. 182, 133 So. 438 (La.1931) insofar as it conflicted with LSA-R.S. 38:2247 and held that the "Public Works Act" does not prohibit a contractor's surety from voluntarily contracting to pay the claims of unpaid workmen or suppliers who are otherwise unprotected by the act.
[7] Invoice # 6740 dated Feb. 27, 1978 shows that plaintiff charged the general contractor $220 for 8 hours rental of a backhoe and operator. Invoice # 6873 dated March 9, 1978 shows that plaintiff charged the general contractor $75 for 3 hours rental of a backhoe and operator. Finally, Invoice # 7062 dated March 31, 1978 shows that plaintiff charged the general contractor $600 for 24 hours rental of a backhoe and operator; $10 for use of a dump truck; $150 for 12 hours rental of a tractor and $38 sales tax on these items. These amounts total $1,093.00. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2455559/ | 250 P.3d 465 (2011)
2011 UT 17
Parker JENSEN, a minor, by and through his parents and natural guardians, Barbara and Daren JENSEN; Barbara Jensen, individually, and Daren Jensen, individually, Plaintiffs and Appellants,
v.
Kari CUNNINGHAM; Richard Anderson; Lars M. Wagner; Karen H. Albritton; Susan Eisenman; and Jane and John Doe, Defendants and Appellees.
No. 20090277.
Supreme Court of Utah.
March 29, 2011.
*470 Roger P. Christensen, Karra J. Porter, Sarah E. Spencer, Salt Lake City, for plaintiffs.
Mark L. Shurtleff, Att'y Gen., Bridget K. Ramano, Joni J. Jones, Asst. Att'ys Gen., David G. Williams, Andrew M. Morse, R. Scott Young, Salt Lake City, for defendants.
Justice PARRISH, opinion of the Court:
INTRODUCTION
¶ 1 This appeal is the latest stage in a protracted dispute between the State of Utah and Barbara and Daren Jensen regarding the proper medical care of the Jensens' son, Parker. In it, we must balance the right of parents to direct the medical care of their child with the State's interest in protecting the health and safety of children within its borders.
¶ 2 A doctor who was treating Parker reported the Jensens to the Utah Division of Child and Family Services for suspected medical neglect after the doctor concluded the Jensens were refusing Parker lifesaving medical care. After a months-long process in the juvenile court, the Jensens sued the state of Utah and various state actors in Utah State court, alleging violations of the Jensens' state and federal constitutional rights. The defendants removed the matter to the federal district court, which entered summary judgment against the Jensens on their claims asserting that the defendants violated their federal constitutional rights. However, the federal district court remanded the Jensens' state law claims to the Utah district court, noting that the claims presented "important issues of state law."
¶ 3 On remand, the state district court applied collateral estoppel and dismissed the plaintiffs' state claims. The court applied collateral estoppel because it concluded that the Utah Constitution provided no broader rights than the federal constitution and it determined that the facts, the alleged harm, and the analysis of the Jensens' state law claims were the same as those that the federal district court had already considered and dismissed.
¶ 4 We hold that the state district court erred in applying collateral estoppel, but affirm the district court's order on alternative grounds that are apparent in the record. Specifically, we hold that two defendants are absolutely immune from suit and that the claims against the remaining three defendants fail because, as a matter of law, the facts do not demonstrate a "flagrant violation" of the Jensens' state constitutional rights.
FACTUAL AND PROCEDURAL BACKGROUND[1]
¶ 5 This controversy began on April 30, 2003, when Barbara Jensen took her 12-year-old son Parker to an oral surgeon, Dr. Christensen, to have a small growth under Parker's tongue removed. Dr. Christensen sent a sample of the removed tissue to Laboratory Corporation of America ("LabCorp") for analysis. The lab determined that the growth was malignant (cancerous). Dr. Christensen then referred the Jensens to Dr. Muntz, an ear, nose, and throat specialist at Primary Children's Medical Center ("Primary Children's") in Salt Lake City, Utah.
¶ 6 After examining Parker, Dr. Muntz referred him to the oncology department at Primary Children's, where he met with Dr. *471 Wagner. On May 9, Dr. Wagner examined Parker, but did not immediately offer any diagnosis because Primary Children's pathology department had not yet completed its own testing.
¶ 7 After completing testing on May 20, the Primary Children's pathology department diagnosed the growth as "Ewings Sarcoma/Peripheral Primitive Neuroectodermal Tumor," otherwise known as Ewing's Sarcoma. The diagnosis from Primary Children's was based on the conventional test for Ewing'san immunohistochemical stainingand the appearance of tumor cells. Ewing's may also be diagnosed through cytogenetic and molecular genetic testing. Under either test, a positive result may be manifested by a chromosomal translocation, but the absence of a translocation does not mean it is not Ewing's. Neither genetic nor molecular testing was performed on Parker's tissue sample,[2] although the pathology report contains a "comment" that reads, "In the event of excision of additional lesional tissue from this site, cytogenetic studies and freezing of tissue for possible molecular ancillary studies may be informative." Nonetheless, the two pathologists who reviewed the testing were confident in the diagnosis. One, Dr. Lowichik, estimated her confidence in the diagnosis to be "in the high 90 percent." The other, Dr. Coffin, testified that the Ewing's diagnosis was rendered with near certainty.
¶ 8 After reviewing the pathology report, Dr. Wagner spoke at length with Dr. Coffin, who was the head of the pathology department at Primary Children's, and asked her whether molecular testing was indicated for Parker. Dr. Coffin said she was comfortable with the testing that had been conducted.
¶ 9 On May 21, Dr. Wagner met with the Jensens to discuss Parker's care. Dr. Wagner expressed his confidence in the Ewing's diagnosis and his desire for prompt initiation of chemotherapy. Dr. Wagner told the Jensens that, if left untreated, Ewing's sarcoma was expected to be fatal. He explained the difference between localized and nonlocalized Ewing's, and informed the Jensens that the cure rate for localized diseasewhere there is no evidence of cancer in places other than where it was discoveredwas approximately 60 percent to 70 percent when treated with recommended chemotherapy, but that the cure rate for nonlocalized disease was as low as 20 percent. He also explained that, if treated with surgery alone, Parker had a low chance of survival.
¶ 10 Dr. Wagner ordered radiographic examinations on Parker's neck, thorax, chest, and skull to determine whether the cancer had spread. All of these additional tests were negative. Dr. Wagner communicated to the Jensens his concern that there might be undetectable microscopic metastatic cancer cells throughout Parker's body that needed to be treated with chemotherapy. The Jensens were bothered by the idea that Parker could have what they termed "invisible cancer." In fact, Ms. Jensen testified that she thought the notion was "crazy."
¶ 11 When the Jensens asked whether there were any other tests that could be done to confirm the Ewing's diagnosis, Dr. Wagner told them there were no other tests required to confirm the diagnosis and that he was sure it was Ewing's. The Jensens nonetheless asked Dr. Wagner to send a sample of Parker's tissue to Dr. Grier, an oncologist at the Dana-Farber Cancer Institute at Harvard University ("Dana-Farber"), for a second opinion. Dr. Wagner complied with the Jensens' request and sent the tissue to Dana-Farber. The Jensens ultimately canceled the consultation. Dr. Wagner has testified that the Dana-Farber test was not done because the Jensens had determined their insurance company would not pay for the second opinion and the Jensens were unwilling to pay for it. The Jensens contend, however, that the second opinion was canceled because they felt it would not be truly independent.
¶ 12 On May 28, 2003, the Jensens consulted with Dr. Judith Moore, a family doctor *472 at the Modern Health Clinic (the "Clinic") in Bountiful, Utah. Ms. Jensen's father had received treatment from Dr. Moore for prostate cancer. Dr. Moore questioned the Ewing's diagnosis because "all the evidence except for the [Primary Children's pathology testing] were negative for cancer."
¶ 13 Dr. Moore's treatment of Ms. Jensen's father had included a form of therapy called Insulin Potentiation Therapy (IPT). The Jensens asked professionals at the Clinic whether IPT might be a potential treatment if Parker had Ewing's, and they requested information to take to their oncologist. The Jensens were provided some printed materials and directed to websites that contained additional information on IPT, even though an employee of the Clinic who had previously administered IPT later testified that she believed IPT "was not a safe and effective treatment" for Ewing's.
¶ 14 The Jensens met again with Dr. Wagner on May 29, 2003. A social worker was also present. At the meeting, the Jensens asked Dr. Wagner for a Positron Emission Tomography ("PET") scan, a procedure that Dr. Moore had recommended "to make sure there was no cancer throughout the body." Dr. Wagner did not order the PET scan, explaining that it would not be useful in Parker's situation. Dr. Wagner explained to the Jensens that a negative PET scan would not change the need for chemotherapy because it could not detect microscopic cancer cells, and he again expressed the need for immediate chemotherapy.
¶ 15 The Jensens refused to allow Dr. Wagner to begin treating Parker with chemotherapy. The Jensens again asked Dr. Wagner if there were other tests to confirm the Ewing's diagnosis. Dr. Wagner said there were not. Dr. Wagner's entry in his medical log, which was made after the meeting, indicated that the Jensens were in agreement with the Ewing's Sarcoma diagnosis. He also noted that the Jensens were "quite interested in pursuing care at an alternative medicine clinic in Bountiful, Utah, which would provide insulin potentiation therapy (IPT)." Dr. Wagner had informed the Jensens that IPT is not an accepted therapy and could not be given through Primary Children's. Nonetheless, they asked him to "look into" IPT, and Dr. Wagner said that he would.
¶ 16 On June 5, Dr. Wagner discussed with Mr. Jensen the results of his research on IPT. Dr. Wagner communicated the following to Mr. Jensen: IPT is not approved by federal regulatory agencies for the treatment of any types of cancer; there is no evidence that IPT is an effective treatment for Ewing's; no safety information is available for IPT; treatment with IPT would increase the likelihood of chemotherapy resistance; and use of IPT would dramatically increase the risk of Parker relapsing and dying from his disease. Dr. Wagner also informed the Jensens that he was legally and ethically bound to involve state protective services if Parker's best medical interests were not being addressed.
¶ 17 By early June 2003, it was clear that the Jensens and Dr. Wagner had significant differences in opinion about Parker's medical care. To address these differences, a meeting was held on June 9, 2003 with the Jensens, Dr. Wagner, Dr. Lemons (head of the oncology department at Primary Children's), a Primary Children's social worker, and the head of quality assurance for the hospital. At the meeting, Dr. Wagner again expressed the need for immediate chemotherapy. The Jensens refused to consent to chemotherapy and stated that they planned to begin IPT. Dr. Wagner had informed the Jensens that IPT would interfere with traditional chemotherapy. Therefore, the Jensens thought that saying they were going to commence IPT would perhaps cause Primary Children's to "back off," thinking that traditional chemotherapy would no longer work. The Jensens contend they refused chemotherapy not because they planned on commencing IPT, but because they desired confirmation through additional tests, which Dr. Wagner had determined were unnecessary. At some point during the meeting, the head of quality assurance for Primary Children's told the Jensens that a referral to the Division of Child and Family Services ("DCFS") might be required. The Jensens left the meeting telling the Primary Children's staff that they *473 were "fired" and that the Jensens would find another hospital to treat Parker.
¶ 18 On June 12, Dr. Wagner sought the advice of Dr. David Corwin, the Division of Child and Family Services' ("DCFS") liaison at Primary Children's, as to whether the Jensens' refusal to begin chemotherapy warranted a report of suspected medical neglect to DCFS. In his written request for consultation, Dr. Wagner informed Dr. Corwin that the Jensens were "refusing conventional therapy and seeking unproven alternative treatment methods."
¶ 19 Dr. Corwin attempted to schedule a meeting with the Jensens and Dr. Wagner to discuss the impasse regarding Parker's treatment, but these attempts failed. The Jensens claim Dr. Wagner told Dr. Corwin there was no time for a meeting because Parker could die without immediate chemotherapy. Regardless, having failed to resolve the treatment conflict, Dr. Corwin decided that the Jensens should be reported to DCFS for refusing what the doctors considered medically necessary treatment.
¶ 20 On June 16, representatives from the hospital and DCFS held a regularly scheduled meeting at Primary Children's. Dr. Wagner, Dr. Corwin, and a social worker from DCFS, Kari Cunningham, were also present. At this meeting and in a case summary submitted to DCFS, Dr. Wagner summarized his interaction with the Jensens. A formal referral to DCFS was made that same day.
¶ 21 The case was assigned to Ms. Cunningham. Based on reports from Dr. Wagner and Dr. Corwin, and the information she obtained from the June 16 meeting, Ms. Cunningham was under the impression that Parker's case was a medical emergency and that something needed to be done within a matter of hours or days. On June 18, she filed in the Third District Juvenile Court a Verified Petition and Motion to Transfer Custody and Guardianship. In the petition, Ms. Cunningham alleged, in essence, that the Jensens were committing medical neglect by refusing to treat Parker with chemotherapy. Ms. Cunningham did not conduct an independent investigation into the claims, nor did she meet with the Jensens to get their side of the story. Rather, she apparently relied solely on the accounts from the doctors at Primary Children's.
¶ 22 On June 19, Ms. Jensen took Parker to Dr. Christensen, the oral surgeon who had performed the first excision of Parker's tumor. Dr. Christensen took another sample from the floor of Parker's mouth in the area where the original tumor had been removed. The tissue was sent to a University of Washington Pathology Laboratory. That lab reported on June 24, 2003 that the tissue contained Ewing's sarcoma.
¶ 23 Also on June 19, the Jensens took Parker to see Dr. John Thompson at LDS Hospital in Salt Lake City. Dr. Thompson examined Parker, and reviewed the Primary Children's chart, including the LabCorp and Primary Children's pathology reports and the radiographic tests that Primary Children's had done as part of the staging process for Parker's treatment. He told the Jensens that he concurred with the Ewing's diagnosis and Dr. Wagner's recommended course of treatment.
¶ 24 The Jensens first appeared before the juvenile court on June 20. They expressed their interest in obtaining further testing to definitively determine Parker's diagnosis. Susan Eisenman represented DCFS in the juvenile court proceedings and became the primary Assistant Attorney General on Parker's case. The juvenile court continued the hearing until July 10, to allow the parties time to negotiate a stipulation.
¶ 25 The Jensens attempted to have other doctors evaluate Parker, but the court did not approve any of these doctors because they were not board certified oncologists. At the July 10 hearing, the parties stipulated to an independent evaluation and subsequent treatment at the Children's Hospital of Los Angeles ("Children's Hospital") by Dr. Tishler. Genetic testing would be performed to satisfy the Jensens' desire for a more definitive diagnosis. But when the Jensens arrived at the Children's Hospital, Dr. Tishler indicated he was recommending chemotherapy based on the pathology reports from Primary Children's in Utah before his own test results were complete. In essence, the Jensens *474 allege that Dr. Tishler was deferring to the Primary Children's diagnosis. Based on this experience, the Jensens continued to look for another doctor to perform the genetic testing and give them what they considered a truly independent second opinion and treatment options.
¶ 26 The court had set August 8, 2003 as the date for Parker to begin chemotherapy based on the stipulated agreement and Dr. Tishler's orders. The court also set an evidentiary hearing for August 20, 2003 to resolve DCFS's petition for custody. According to the Jensens, because they had lost faith in the independence of Dr. Tishler, they did not begin chemotherapy for Parker on August 8. They figured they could explain their reasons at the August 20 hearing, and took Parker on a boating trip in Idaho. They planned to take Parker to the Burzynski Clinic in Houston for further testing and treatment following the trip, but when they failed to begin chemotherapy on August 8, Ms. Eisenman sought a hearing with the juvenile court for the purpose of seeking authorization to take Parker into protective custody.
¶ 27 A hearing was held on August 8. The Jensens' lawyer was present at the hearing and indicated that the Jensens had plans to take Parker to the Burzynski Clinic for evaluation and that they would begin treatment as directed by the Clinic. The Jensens' proposal to take Parker to another doctor that had not been approved by the juvenile court prompted Ms. Cunningham to include Dr. Albritton, who had replaced Dr. Wagner at Primary Children's, in the hearing. Ms. Eisenman asked Dr. Albritton whether the Burzynski Clinic was qualified to treat Parker. Dr. Albritton indicated that Dr. Burzynski was not a board certified oncologist, that his clinic was known for providing extremely controversial therapy and that for these reasons it was not an appropriate clinic to treat Parker.
¶ 28 Based on this information and the Jensens' failure to start chemotherapy as they had agreed in the stipulation, Ms. Eisenman filed an Application to Take a Child into Protective Custody. The application was supported by affidavits from Ms. Cunningham and Dr. Wagner. The juvenile court issued an order authorizing DCFS to take Parker into protective custody, finding that it was in Parker's best interest. But the warrant could not be served because the Jensens were in Idaho. This prompted the court to issue a bench warrant for the arrest of Mr. and Mrs. Jensen. And, to make the warrant effective in Idaho, an adult arrest warrant subject to a national database was necessary. Ms. Eisenman, Ms. Cunningham, and Parker's guardian ad litem informed the Salt Lake County District Attorney's Office of the situation. This resulted in criminal charges being filed against the Jensens, including one count of custodial interference and one count of kidnaping.
¶ 29 On August 16, 2003, Mr. Jensen was arrested in Idaho, where he spent four days in jail. Upon Mr. Jensen's arrest, Ms. Jensen took Parker to Houston to see Dr. Burzynski. But the Burzynski Clinic refused to see Parker because the juvenile court order had granted legal custody to the State of Utah and the Clinic did not have consent from the State to treat Parker.
¶ 30 At this time, Richard Anderson, director of DCFS, was called by the Governor's office to assist in the case. Mr. Anderson flew to Idaho to meet with Mr. Jensen to try to negotiate an agreement for the Jensens to return to Utah and begin a treatment plan for Parker. Ultimately, Mr. Anderson was able to reach a stipulation with the Jensens, in which they agreed to take Parker to Dr. Johnston, a board certified oncologist at St. Luke's Hospital in Boise, Idaho, and to submit to his treatment recommendations. However, like Dr. Tishler, Dr. Johnston recommended chemotherapy after reviewing Parker's file without ordering any independent diagnostic tests. The Jensens were again dismayed at the lack of an independent diagnosis and refused to work with Dr. Johnston.
¶ 31 DCFS ultimately conceded that the Jensens would not submit to chemotherapy and that it was unreasonable to force an unwilling 13-year-old boy to undergo chemotherapy. Accordingly, DCFS dismissed the Verified Petition and the Jensens entered a plea agreement with the State on the custodial *475 interference charges in exchange for the State's promise to dismiss the kidnaping charges.
¶ 32 In 2005, the Jensens filed a complaint in Utah's Third District Court against the State of Utah, Ms. Cunningham, Mr. Anderson, Dr. Wagner, Dr. Corwin, Dr. Coffin, Dr. Albritton, and Ms. Eisenman.[3] In the complaint, the Jensens asserted the following ten claims for relief: (1) 42 U.S.C. § 1983 violation of parents' Fourteenth Amendment due process right to direct medical care of their child; (2) 42 U.S.C. § 1983 violation of First and Fourteenth Amendment right to familial association; (3) 42 U.S.C. § 1983 violation of Fourth Amendment for malicious prosecution; (4) 42 U.S.C. § 1983 violation of Parker's Ninth Amendment right to refuse unwanted medical treatment; (5) violation of right to "enjoy and defend" lives under article I, section 1 of the Utah Constitution; (6) violation of due process under article I, section 7 of the Utah Constitution; (7) violation of the right to be free from unreasonable searches and seizures under article I, section 14 of the Utah Constitution; (8) violation of the right to familial association under article I, section 25 of the Utah Constitution; (9) state common law wrongful initiation of civil/criminal process; and (10) state common law intentional infliction of emotional distress.
¶ 33 The defendants removed the case to federal court and promptly filed motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The federal district court dismissed the fourth and eighth claims in their entirety and various claims against specific defendants, but allowed others to proceed. After extensive discovery, the defendants filed motions for summary judgment. The court granted defendants' motions for summary judgment on all federal claims. Specifically, the court held that defendants Eisenman and Albritton were absolutely immune from the Jensens' federal claims because the conduct they allegedly engaged in was performed during activities "sufficiently connected with the judicial process." The court also determined that defendants Wagner, Cunningham, and Anderson were entitled to qualified immunity from the Jensens' federal claims. The federal court declined to exercise supplemental jurisdiction over the remaining state law claims and remanded them to state court, finding that they "present[ed] important questions of state law." P.J. ex rel. Jensen v. Utah, No. 2:05-CV-739 TS, 2008 WL 4372933, at *31, 2008 U.S. Dist. LEXIS 72334, at *98 (D.Utah Sept.22, 2008). On appeal, the Court of Appeals for the Tenth Circuit upheld the dismissal of the federal claims. P.J. ex rel. Jensen v. Wagner, 603 F.3d 1182 (10th Cir. 2010).
¶ 34 On remand to Utah's Third District Court, the defendants again filed motions for summary judgment, arguing that the federal court ruling required dismissal of the Jensens' state law claims. The court granted the motions, reasoning that the issue preclusion arm of the doctrine of res judicata barred the Jensens from arguing that their state constitutional rights had been violated. The court relied on issue preclusion because it determined there was no historical or textual basis for interpreting the Utah Constitutional provisions as providing any broader protections than their federal counterparts. And, because the federal courts had conclusively decided that the Jensens had not produced evidence to form the basis of a federal constitutional claim, they similarly could not prove state constitutional claims when the federal and state constitutions provided substantially similar protection. The Jensens appeal the state district court ruling dismissing their claims, arguing that it improperly applied issue preclusion to bar their state constitutional claims.[4]
*476 ¶ 35 We have jurisdiction to review the district court order under Utah Code section 78A-3-102(3)(j) (Supp.2010).
STANDARDS OF REVIEW
¶ 36 We review a district court's grant of summary judgment for correctness and afford no deference to the court's legal conclusions. See Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600. We affirm a grant of summary judgment only if there are no disputed issues of material fact and, with the facts and all reasonable inferences viewed in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law. Utah R. Civ. P. 56(c). We may affirm a grant of summary judgment upon any grounds apparent in the record. Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158.
¶ 37 Interpretation of the Utah Constitution and the application of collateral estoppel are both questions of law that we review for correctness. See Dexter v. Bosko, 2008 UT 29, ¶ 5, 184 P.3d 592; Macris & Assocs., Inc. v. Neways, Inc., 2000 UT 93, ¶ 17, 16 P.3d 1214.
ANALYSIS
¶ 38 In this case, the state district court granted summary judgment in favor of all defendants because it determined that collateral estoppel applied and precluded the Jensens from asserting their state law claims. We first evaluate the propriety of this decision and hold that it was in error. Next, we define our state judicial immunity standard and apply it to uphold the dismissal, as a matter of law, of the claims against defendants Karen Albritton and Susan Eisenman. We then outline the contours of the protections afforded by the Utah Constitution regarding the right of parents to direct the medical care of their children, the right to procedural due process, and the right to be free from unreasonable search and seizure. Based on this discussion, we affirm the summary judgment dismissing the Jensens' claims against the remaining three defendants, Dr. Lars Wagner, Kari Cunningham, and Richard Anderson. We do so on the alternative ground that monetary damages are not an appropriate remedy for the alleged constitutional violations because, as a matter of law, the conduct of these defendants does not constitute a "flagrant violation" of the Jensens' state constitutional rights.
I. THE DISTRICT COURT ERRED IN RELYING ON COLLATERAL ESTOPPEL TO DISMISS THE JENSENS' STATE LAW CLAIMS ON SUMMARY JUDGMENT
¶ 39 The district court erred in applying collateral estoppel in this case because the legal standards for state and federal constitutional violations are different. Because the Jensens' state law claims "involve important issues of Utah law," the federal district court declined to exercise supplemental jurisdiction over the claims and instead remanded them to state court. P.J. ex rel. Jensen v. Utah, No. 2:05-CV-739 TS, 2008 WL 4372933, at *1, 2008 U.S. Dist. LEXIS 72334, at *3 (D.Utah Sept.22, 2008). The federal district court made no findings with regard to any of the Jensens' state law claims but dismissed, on the merits, all of their federal claims. Id.
¶ 40 In deciding the remanded claims, the state district court concluded that the Utah Constitution does not provide greater protections for parental rights than the Federal Constitution. The court ruled that the same set of undisputed facts that were material to the federal claims was also material to the state constitutional claims. And because the federal court determined that those material and undisputed facts were not sufficient to establish a violation of the Jensens' federal constitutional rights, the Jensens were precluded from arguing that their state constitutional rights were violated. The state district court erred in applying collateral estoppel in this way.
¶ 41 Collateral estoppel, otherwise known as issue preclusion, "`prevents parties or their privies from relitigating facts and *477 issues in the second suit that were fully litigated in the first suit.'" Oman v. Davis Sch. Dist., 2008 UT 70, ¶ 31, 194 P.3d 956 (quoting Snyder v. Murray City Corp., 2003 UT 13, ¶ 35, 73 P.3d 325). Issue preclusion applies only when the following four elements are satisfied:
(i) the party against whom issue preclusion is asserted [was] a party to or in privity with a party to the prior adjudication; (ii) the issue decided in the prior adjudication [was] identical to the one presented in the instant action; (iii) the issue in the first action [was] completely, fully, and fairly litigated; and (iv) the first suit. . . resulted in a final judgment on the merits.
Id. ¶ 29 (quoting Collins v. Sandy City Bd. of Adjustment, 2002 UT 77, ¶ 12, 52 P.3d 1267).
¶ 42 To satisfy the second element of this test, the issue to be litigated must be "identical" in both cases. The defendants rely on Oman in support of their argument that the issue the state court faced here is identical to the one decided by the federal court. In Oman, we held that collateral estoppel barred the plaintiff from litigating his breach of contract claim in state court because a federal court had already determined that the employment contract had not been breached. Id. ¶ 32. The "issue" precluded from re-litigation in that case was whether the employment contract had been breached. Id. Generally, state law governs the interpretation of contracts. See, e.g., Summit Contractors, Inc. v. Legacy Corner, L.L.C., 147 Fed.Appx. 798, 800 (10th Cir. 2005). The federal court in Oman did not indicate a deviation from this norm. Therefore, because the breach of contract issue had been decided by the federal court using the same standard that would be applied in state court, the plaintiff was precluded from relitigating that issue in state court. See Oman, 2008 UT 70, ¶ 32, 194 P.3d 956.
¶ 43 But Oman is distinguishable from the situation presented here. This case is more analogous to a Maryland case, Thacker v. City of Hyattsville, 135 Md.App. 268, 762 A.2d 172 (Md.Ct.Spec.App.2000). There, the state court rejected the application of collateral estoppel after a federal district court dismissed a plaintiff's federal § 1983 claims based on federal qualified immunity standards. Id. at 182-83. When faced with the plaintiff's state constitutional claims based on the same series of events considered by the federal court, the state court refused to apply collateral estoppel because "Maryland law governing qualified immunity from state law claims is not `identical' to federal law governing qualified immunity from section 1983 claims." Id. at 183.
¶ 44 The instant case presents a nearly identical scenario to that considered by the Maryland court in Thacker. Here, as in Thacker, the federal district court applied federal constitutional law and federal immunity standards to dismiss the Jensens' § 1983 claims on summary judgment. P.J. ex rel. Jensen, 2008 WL 4372933, at *11-31, 2008 U.S. Dist. LEXIS 72334, at *33-99, aff'd in part, rev'd in part sub nom., P.J. ex rel. Jensen v. Wagner, 603 F.3d 1182, 1194-1201 (10th Cir.2010). And the state district court granted summary judgment to the defendants because it determined it was bound by the dispositive issue in federal courtthat, as a matter of law, the material and undisputed facts did not give rise to a federal constitutional violation. But the state district court was not considering a federal constitutional violation. Rather, it was considering whether the facts gave rise to cognizable claims of state constitutional violations under state law. The determinations made by the federal judge, under federal law, regarding the materiality of the facts or the inferences that could be drawn from those facts were not dispositive as to questions arising under state law. Thus, unlike the situation in Oman, where the legal standard for analyzing a breach of contract claim was the same in both state and federal court, the standards for determining whether a plaintiff is entitled to damages for a state constitutional violation differ from the standards for assessing claims under the federal constitution.
¶ 45 At the most fundamental level, the standards for state and federal constitutional claims are different because they are based on different constitutional language and different interpretive case law. See, e.g., State v. Tiedemann, 2007 UT 49, ¶ 34, 162 P.3d *478 1106 (noting that "Utah's search and seizure provisions (which are identical to those in the federal constitution) provide a greater expectation of privacy than the Fourth Amendment as interpreted by the United States Supreme Court" (internal quotation marks omitted)); compare, e.g., U.S. Const. amend. V (federal "due process" clause), with Utah Const. art. I, § 7 (state "due process" clause), and id. art. I, § 1 ("inherent and inalienable rights" clause).
¶ 46 While some of the language of our state and federal constitutions is "substantially the same," similarity of language "does not indicate that this court moves in `lockstep' with the United States Supreme Court's [constitutional] analysis or foreclose our ability to decide in the future that our state constitutional provisions afford more rights than the federal Constitution." Bailey v. Bayles, 2002 UT 58, ¶ 11 n. 2, 52 P.3d 1158; see also Tiedemann, 2007 UT 49, ¶ 33, 162 P.3d 1106; West v. Thomson Newspapers, 872 P.2d 999, 1006 (Utah 1994); State v. Watts, 750 P.2d 1219, 1221 n. 8 (Utah 1988). This idea underlies our reasoning in those cases where we have adopted the primacy approach, which dictates an analysis of state constitutional law before addressing any federal constitutional claims. Tiedemann, 2007 UT 49, ¶ 33, 162 P.3d 1106; see also West, 872 P.2d at 1006. When utilizing this approach, we have stated, "[t]his court, not the United States Supreme Court, has the authority and obligation to interpret Utah's constitutional guarantees . . . and we owe federal law no more deference in that regard than we do sister state interpretation of identical state language." Tiedemann, 2007 UT 49, ¶ 33, 162 P.3d 1106. Indeed, when a court is confronted with a state constitutional claim, the starting point is the language of the state constitution. Id.
¶ 47 In addition to the differences in constitutional language and interpretive case law, the framework for making out a claim for damages for a violation of one's constitutional rights is different under state and federal law. To recover for a violation of the United States Constitution under section 1983 of Title 42 of the United States Code, a plaintiff must "show that the defendant's actions violated a [federal] constitutional or statutory right . . . [and] that this right was clearly established at the time of the conduct at issue." Clark v. Edmunds, 513 F.3d 1219, 1222 (10th Cir.2008) (internal quotation marks omitted); see also Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 818, 172 L. Ed. 2d 565 (2009) (noting that courts are "permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first"). The answers to these questions must be based on the language of the Federal Constitution.
¶ 48 In contrast, to recover monetary damages for a violation of the Utah Constitution, a plaintiff must demonstrate that the provision violated by the defendant is self-executing and then must establish three elements: (1) the plaintiff "suffered a flagrant violation of his or her constitutional rights;" (2) "existing remedies do not redress his or her injuries;" and (3) "equitable relief, such as an injunction, was and is wholly inadequate to protect the plaintiff's rights or redress his or her injuries." Spackman ex rel. Spackman v. Bd. of Educ., 2000 UT 87, ¶¶ 18, 23-25, 16 P.3d 533. The answers to these questions must be based on the language of the Utah Constitution.
¶ 49 Without an analysis of the independent protections afforded by our state constitution, the state district court dismissed the Jensens' state law claims because a federal court found that the undisputed material facts did not give rise to a federal constitutional violation. This was error. Because the state and federal standards for determining whether a plaintiff is entitled to damages for a constitutional violation are different, a federal court determination that the material undisputed facts do not give rise to a federal constitutional violation does not preclude a state court from deciding whether those same facts will give rise to a state constitutional violation.[5] Therefore, the state *479 district court's grant of summary judgment to the defendants solely on the basis of collateral estoppel was in error.
II. THE UTAH GOVERNMENTAL IMMUNITY ACT DOES NOT SHIELD DEFENDANTS WAGNER AND ALBRITTON, BUT DEFENDANTS EISENMAN AND ALBRITTON ARE IMMUNE FROM THE JENSENS' STATE CONSTITUTIONAL CLAIMS ON THE BASIS OF QUASI-JUDICIAL IMMUNITY
¶ 50 Because we have determined that the district court erroneously applied collateral estoppel, we turn to the merits of the Jensens' claims. But first we address defendants' argument that they are immune from the Jensens' state constitutional claims. Defendants Wagner and Albritton contend that the Utah Governmental Immunity Act shields them from liability. Defendants Albritton and Eisenman argue that they are entitled to quasi-judicial immunity.
A. The Governmental Immunity Act Does Not Apply to Claims Alleging State Constitutional Violations
¶ 51 Dr. Wagner and Dr. Albritton claim immunity under a provision of the Utah Governmental Immunity Act that bars claims against individual state actors unless they act with fraud or malice. Utah Code Ann. § 63-30-4(3)(b)(i) (1997).[6] Their argument is without merit and requires little analysis because the Utah Governmental Immunity Act does not apply to claims alleging state constitutional violations. See Spackman ex rel. Spackman v. Bd. of Educ., 2000 UT 87, ¶ 20 n. 7, 16 P.3d 533; Bott v. DeLand, 922 P.2d 732, 736 (Utah 1996) ("[G]overnmental immunity cannot apply where a claimant alleges that the state or a state employee violated his constitutional rights."), overruled on other grounds by Spackman, 2000 UT 87, 16 P.3d 533; Colman v. Utah State Land Bd., 795 P.2d 622, 630-31 (Utah 1990) (holding that the Utah Governmental Immunity Act's sovereign immunity protection does not apply to article I, section 22 constitutional takings claims). Thus, defendants Wagner and Albritton are not immune from the Jensens' claims.
B. Quasi-Judicial Immunity Bars the Jensens' Claims against Defendants Eisenman and Albritton
¶ 52 Dr. Albritton and Ms. Eisenman invoke quasi-judicial immunity. The Supreme Court of the United States has recognized the defense of absolute immunity from section 1983 civil rights actions. See, e.g., Kalina v. Fletcher, 522 U.S. 118, 131, 118 S. Ct. 502, 139 L. Ed. 2d 471 (1997). Under this doctrine, a prosecutor is entitled to absolute prosecutorial immunity from liability arising from alleged constitutional violations that arise out of the prosecutor's performance of "the traditional functions of an advocate."[7]Id. We have incorporated and expanded upon this functional approach to insulate advocates and others involved in the judicial process. See Parker v. Dodgion, 971 P.2d 496, 498 (Utah 1998). Our immunity test provides protection for a state actor committing acts "`in the performance of an integral part of the judicial process.'" Id. (quoting Bailey v. Utah State Bar, 846 P.2d 1278, 1280 (Utah 1993)).
*480 ¶ 53 In Parker v. Dodgion, we applied this "quasi-judicial immunity" standard to a psychologist who was appointed by the court to assist in making a custody determination. Id. We held that the psychologist was performing a function integral to the judicial process by "conducting evaluations and making recommendations regarding custody" and therefore was immune from the plaintiff's claims. Id. at 499. Applying a similar quasi-judicial immunity standard, an Ohio appeals court dismissed a plaintiff's civil rights claims against a guardian ad litem because of the guardian ad litem's "role as a court-appointed functionary charged with representing the interests of minor children in the judicial process." Dolan v. Kronenberg, No. 76054, 1999 WL 528202, at *3, 1999 Ohio App. LEXIS 3387, at *7-8 (Ohio Ct.App. July 22, 1999).
¶ 54 Defendants Eisenman and Albritton were similarly filling integral roles in the judicial process. Ms. Eisenman was the attorney representing DCFS in the juvenile court proceedings. The Jensens contend that Ms. Eisenman made material misrepresentations to the juvenile court, her supervisor, the district attorney's office, and the Jensens. They also allege that Ms. Eisenman "performed a skewed investigation." But all of Ms. Eisenman's actions that the Jensens allege violated their state constitutional rights were performed in Ms. Eisenman's role as an advocate and necessarily were integral to the judicial process. Similar to the guardian ad litem in Dolan, Ms. Eisenman was the court appointed functionary charged with representing the state's interest in the case. Therefore, we hold that her actions are protected by quasi-judicial immunity.
¶ 55 For her part, defendant Dr. Albritton was asked during a juvenile court proceeding to give her expert opinion about the qualifications of doctors, specifically those at the Burzynski Clinic, whom the Jensens suggested should treat Parker. This role was similar to the role fulfilled by the psychologist in Dodgion, who offered the court his opinion about the qualifications of the parties seeking custody. Dr. Albritton's conduct was an integral part of the judicial process because it informed the court of the qualifications of the doctors in light of the juvenile court's order that only a board certified oncologist could treat Parker. Accordingly, we hold that Dr. Albritton's actions are also protected by quasi-judicial immunity.
¶ 56 Because defendants Eisenman and Albritton performed acts that were integral to the judicial process, they are immune from the Jensens' state constitutional claims.[8]
III. THE JENSENS ARE NOT ENTITLED TO PURSUE MONETARY DAMAGES FOR THE ALLEGED VIOLATIONS OF THEIR STATE CONSTITUTIONAL RIGHTS
¶ 57 We now turn to the merits of the constitutional tort claims against the remaining defendants, Dr. Wagner, Ms. Cunningham and Mr. Anderson. The Utah Constitution does not expressly provide damage remedies for constitutional violations. And the Utah Code does not include a statute akin to 42 U.S.C. § 1983. As a result, a plaintiff's remedy for state constitutional violation rests in the common law. See Spackman ex rel. Spackman v. Bd. of Educ., 2000 UT 87, ¶¶ 19-20, 16 P.3d 533. In Spackman, we recognized that the common law gives *481 Utah courts the authority to "accord an appropriate remedy to one injured from the violation of a constitutional provision." Id. ¶ 20.
¶ 58 In order to recover damages for the violation of a constitutional provision under Spackman, a plaintiff must clear two hurdles. First, the plaintiff must prove that the constitutional provision violated is "selfexecuting." Id. ¶ 18. Next, a plaintiff must establish the following three elements: (1) the plaintiff "suffered a `flagrant' violation of his or her constitutional rights;" (2) "existing remedies do not redress his or her injuries;" and (3) "equitable relief, such as an injunction, was and is wholly inadequate to protect the plaintiff's rights or redress his or her injuries." Id. ¶¶ 23-25. Because the common law authority to award damages for constitutional violations invokes policy considerations, a court's discretion in imposing monetary damages should be "cautiously and soundly" exercised. Id. ¶ 21. As a result, the Spackman test is intended "[t]o ensure that damage actions are permitted only `under appropriate circumstances.'" Id. ¶ 22. Because the Jensens are seeking monetary damages for alleged violations of their state constitutional rights, we must analyze their claims under Spackman.
A. Each of the Constitutional Provisions Relied Upon by the Jensens is Self-Executing
¶ 59 The Jensens must first demonstrate that the provisions they claim defendants violatedarticle I, sections 1, 7, and 14are self-executing. "[A] constitutional provision is self-executing if it articulates a rule sufficient to give effect to the underlying rights and duties intended by the framers" or, in other words, "if no ancillary legislation is necessary to the enjoyment of a right given, or the enforcement of a duty imposed." Spackman, 2000 UT 87, ¶ 7, 16 P.3d 533 (internal quotation marks omitted). Constitutional provisions that prohibit certain conduct usually are self executing. Id. ¶ 8. On the other hand, "constitutional provisions are not self-executing if they merely indicate a general principle or line of policy without supplying the means for putting them into effect." Id. ¶ 7 (internal quotation marks omitted).
¶ 60 Prior to Spackman, we had expressly found three constitutional provisions to be self-executing: the former version of article XII, section 18 (providing for the liability of bank stockholders); article I, section 22 (the Takings Clause); and article I, section 9 (the Unnecessary Rigor/Cruel and Unusual Punishment Clause). Id. ¶ 9.
¶ 61 In Spackman, we held that article I, section 7the due process clauseis self executing. Id. ¶ 10. Three characteristics of the clause supported our conclusion. First, we found the clause "inarguably prohibitory," id. ¶ 11, especially given the Utah Constitution's declaration that all of its provisions are "`mandatory and prohibitory, unless by express words they are declared to be otherwise.'" Id. (quoting Utah. Const. art. I, § 26). Second, the due process clause had been defined and enforced on numerous occasions in the absence of implementing legislation, despite the fact that "the right to due process is expressed in relatively general terms." Id. ¶ 12. "Finally, the context in which the clause was adopted suggest[ed] the framers intended to constitutionalize existing concepts of due process rather than create a new provision requiring legislative implementation." Id. ¶ 13. We have never considered whether article I, sections 1 or 14 are self executing. We do so now.
1. Article I, section 1 is self-executing
¶ 62 Article I, section 1 states that
[a]ll men have the inherent and inalienable right to enjoy and defend their lives and liberties; to acquire, possess and protect property; to worship according to the dictates of their consciences; to assemble peaceably, protest against wrongs, and petition for redress of grievances; to communicate freely their thoughts and opinions, being responsible for the abuse of that right.
Utah Const. art. I, § 1. We hold that this provision is self-executing. First, the provision is prohibitory. By its terms, it prohibits government from infringing upon citizens' "inherent and inalienable" rights and, like *482 the due process clause, it does not contain express words declaring that it is not "mandatory and prohibitory." Second, like the due process clause, this court has on numerous occasions defined and enforced article I, section 1 without implementing legislation. See, e.g., Ritholz v. City of Salt Lake, 3 Utah 2d 385, 284 P.2d 702, 705 (1955) (invalidating city ordinance that prohibited price advertising of eyeglasses because it unduly infringed upon advertiser's article I, section 1 right to "enjoyment of property"); Golding v. Schubach Optical Co., 93 Utah 32, 70 P.2d 871, 875 (1937) (noting that rights guaranteed by article I, section 1 "are invaded when one is not at liberty to contract with others respecting the use to which he may subject his property . . . or the manner in which he may enjoy it" (internal quotation marks omitted)).
2. Article I, section 14 is self-executing
¶ 63 Article I, section 14 is also self-executing. It states:
The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, particularly describing the place to be searched, and the person or thing to be seized.
Utah Const. art. I, § 14. The plain language of this section directly prohibits unreasonable searches and seizures without probable cause for a warrant. Such a rule sufficiently gives effect to the underlying rights and duties without implementing legislation. See Spackman, 2000 UT 87, ¶ 7, 16 P.3d 533.
¶ 64 Because all of the provisions upon which the Jensens base their claims are self-executing, the Jensens have cleared the first Spackman hurdle. We now consider whether money damages are an appropriate remedy for the Jensens' alleged constitutional violations by applying the three-part test we enunciated in Spackman.
B. A Private Suit for Damages is not an Appropriate Remedy for the Alleged Constitutional Violations
¶ 65 Money damages are an appropriate remedy for a constitutional violation only where a plaintiff establishes three elements: (1) the plaintiff "suffered a `flagrant' violation of his or her constitutional rights;" (2) "existing remedies do not redress his or her injuries;" and (3) "equitable relief, such as an injunction, was and is wholly inadequate to protect the plaintiff's rights or redress his or her injuries." Spackman, 2000 UT 87, ¶¶ 23-25, 16 P.3d 533.
¶ 66 The first step inquires whether the defendants' alleged conduct constitutes a "flagrant violation" of the Jensens' constitutional rights. This element is not satisfied unless the conduct violates "`clearly established' constitutional rights `of which a reasonable person would have known.'" Id. ¶ 23 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). A right is not clearly established unless its contours are "`sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Id. (quoting Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987)). The "flagrant" requirement "ensures that a government employee is allowed the ordinary `human frailties of forgetfulness, distractibility, or misjudgment without rendering [him or her]self liable for a constitutional violation.'" Id. (alteration in original) (quoting Bott, 922 P.2d at 740).
¶ 67 The defendants contend that a flagrant violation cannot exist absent clear precedent on point that specifically recognizes the claimed right and applies it to analogous facts. But we believe the flagrant violation standard cannot be so constrained. To be sure, it will be easier for a plaintiff to demonstrate a flagrant violation where precedent clearly establishes that the defendant's alleged conduct violates a provision of the constitution. The converse is also truein the absence of relevant precedent recognizing the right and prohibiting the alleged conduct, it will be more difficult for a plaintiff to prevail. Nevertheless, we can conceive of instances where a defendant's conduct will be so egregious and unreasonable that it constitutes a flagrant violation of a constitutional right even in the absence of controlling precedent.
*483 ¶ 68 With this standard in mind, we now consider the Jensens' specific claims. The Jensens assert the defendants violated their right to direct the medical care of Parker under article I, sections 1 and 7 of the Utah Constitution.[9] The Jensens also allege violations of their procedural due process rights under the same provision. Finally, the Jensens allege a violation of their right under article I, section 14 to be free from unreasonable custodial and non-custodial seizures. For each alleged violation, we first review the scope of the claimed right and then consider the facts under the summary judgment standard to determine whether the Jensens have identified facts or disputed issues of fact giving rise to a "flagrant violation."
¶ 69 When analyzing the rights afforded by our state constitution, we begin the discussion "with a review of the constitutional text." Dexter v. Bosko, 2008 UT 29, ¶ 11, 184 P.3d 592. "We also `inform our textual interpretation with historical evidence of the framers' intent.' Finally, we may consider well-reasoned and meaningful decisions made by courts of last resort in sister states with similar constitutional provisions." Id. (quoting Am. Bush v. City of S. Salt Lake, 2006 UT 40, ¶ 10, 140 P.3d 1235). We address each of the Jensens' claimed rights in turn, beginning with the asserted parental right to direct the medical care of one's children.
1. Article I, Sections 1 and 7 Guarantee Parents a Right to Direct the Medical Care of Their Child, but the Right Is Not Absolute
¶ 70 The Jensens claim that article I, sections 1 and 7 vest in parents a right to direct their child's medical care free from governmental interference, unless such governmental interference is narrowly tailored and in furtherance of a compelling state interest. They contend that defendants' conduct constitutes a "flagrant violation" of this "fundamental" substantive right.
¶ 71 We begin with a discussion of article I, section 7, our state constitution's "due process clause." Like its federal counterpart, article I, section 7 provides that "[n]o person shall be deprived of life, liberty or property, without due process of law." Utah Const. art. I, § 7.
¶ 72 In a long line of precedent, this court has recognized parental rights as a fundamental component of liberty protected by article I, section 7. For example, as early as 1907 we suggested that removal of a child from his parent's custody is unconstitutional unless the parent has been found unfit. See Mill v. Brown, 31 Utah 473, 88 P. 609, 613 (1907) ("Before the state can be substituted to the right of the parent it must affirmatively be made to appear that the parent has forfeited his natural and legal right to the custody and control of the child by reason of his failure, inability, neglect, or incompetency to discharge the duty and thus to enjoy the right."). And in In re J.P., we noted that "[a] parent has a fundamental right, protected by the Constitution, to sustain his relationship with his child." 648 P.2d 1364, 1372 (Utah 1982) (internal quotation marks omitted). We recognized that "[t]he integrity of the family and the parents' inherent right and authority to rear their own children have been recognized as fundamental axioms of Anglo-American culture, presupposed by all our social, political, and legal institutions." Id. at 1373. Applying these principles, we held unconstitutional a statute that permitted the juvenile court to terminate established parental rights solely upon a finding that *484 termination would be in the child's best interests. Id. at 1374. In so doing, we recognized that a parent has a due process right under article I, section 7 to maintain parental ties to his or her child. Id. at 1375, 1377. A statute that infringes upon this "fundamental" right is subject to heightened scrutiny and is unconstitutional unless it (1) furthers a compelling state interest and (2) "the means adopted are narrowly tailored to achieve the basic statutory purpose." Wells v. Children's Aid Soc'y of Utah, 681 P.2d 199, 206 (Utah 1984) (internal quotation marks omitted).
¶ 73 These cases stand primarily for the proposition that a parent possesses a fundamental right to maintain ties to his or her child. In re J.P, 648 P.2d at 1377; Wells, 681 P.2d at 206-07. But their holdings do not directly embrace a broader, more encompassing fundamental right to direct medical care. And the Jensens have not cited to any other authorityfrom this or any other jurisdictionthat squarely supports such an expansive reading of article I, section 7. Nevertheless, it is clear from our precedent that parents have a fundamental right to make decisions concerning the care and control of their children. And this general right necessarily encompasses the more specific right to make decisions regarding the child's medical care.
¶ 74 It is equally well established, however, that although "fundamental," parental rights are not absolute. A parent's rights must be balanced against the state's important interest in protecting children from harm. See In re J.P., 648 P.2d at 1377 ("The principle that the welfare of the child is the paramount consideration means that parental rights, though inherent and retained, are not absolute . . . ." (internal quotation marks omitted)); id. at 1382 (Stewart, J., dissenting) ("[T]he correlative of parental rights is parental duties. When parents fail to, or are incapable of, performing their parental obligations, the child's welfare must prevail over the right of the parent."); Soper v. Dillon (In re Storar), 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64, 73 (1981) ("[A parent] may not deprive a child of lifesaving treatment, however well intentioned. Even when the parents' decision to decline necessary treatment is based on constitutional grounds, such as religious beliefs, it must yield to the State's interests, as parens patriae, in protecting the health and welfare of the child." (citations omitted)). This is especially the case where a child's life is endangered.
¶ 75 Utah statutes in effect during the events that gave rise to this case accurately reflect the delicate balance between constitutionally protected parental rights and the state's interest in ensuring the health and safety of children within its borders. For example, Utah Code section 62A-4a-201 provided as follows: "Courts have recognized a general presumption that it is in the best interest and welfare of a child to be raised under the care and supervision of his natural parents." UTAH CODE ANN. § 62A-4a-201(1) (Supp.1997).[10] It added that "[t]he right of a fit, competent parent to raise his child has long been protected by the laws and Constitution of this state and of the United States." Id. Counterbalanced against this express recognition of fundamental parental rights, however,
the state, as parens patriae, has an interest in and responsibility to protect children whose parents . . . do not adequately provide for their welfare. There are circumstances where a parent's conduct or condition is a substantial departure from the norm and the parent is unable or unwilling to render safe and proper parental care and protection. Under those circumstances, the welfare of children is the consideration of paramount importance.
Id. § 62A-4a-201(2). "When circumstances within the family pose a threat to the child's safety or welfare, the state's interest in the child's welfare is paramount to the rights of a parent." Id. § 62A-4a-201(4).
¶ 76 The state appropriately takes its parens patriae responsibility seriously. In fact, any person, including a medical professional, who has reason to believe that a child has been subjected to neglect is required to report the abuse either to law enforcement or *485 DCFS. Id. § 62A-4a-403(1). And the statutory definition of neglect includes a parent's failure to provide proper or necessary medical care or any other care necessary for the child's health. Id. § 62A-4a-101(14)(a)(iv). A person required to report who "willfully fails to do so" is subject to criminal liability. Id. § 62A-4a-411. And, any person who "participat[es] in good faith in making a report" of neglect or "assist[s] an investigator from [DCFS]" is immune from liability that might otherwise arise by reason of such conduct. Id. § 62A-4a-410.
¶ 77 The Jensens have not challenged the constitutionality of the above statutory scheme, which reflects the scope of protection afforded by article I, section 7 to a parent's right to direct medical care. However, the Jensens seek to buttress their article 1, section 7 argument with article 1, section 1. That provision states that
[a]ll men have the inherent and inalienable right to enjoy and defend their lives and liberties; to acquire, possess and protect property; to worship according to the dictates of their consciences; to assemble peaceably, protest against wrongs, and petition for redress of grievances; to communicate freely their thoughts and opinions, being responsible for the abuse of that right.
Utah Const. art. I, § 1. As the Jensens concede, "[t]here are no Utah cases in which the parties have raised [article 1, section 1] in the parent-child context." Faced with this absence of authority, the Jensens argue that, by its language, section 1 promotes the "inherent rights of defending life and liberty" and because we have, in In re J.P. and Wells, determined that parents possess an inherent fundamental liberty interest under article 1, section 7 to rear their children, these provisions necessarily protect a parent's fundamental right to direct medical care. But the Jensens have failed to support their argument with relevant case law, statutes, or historical evidence.
¶ 78 Although the Utah Constitution protects parental rights to direct the medical care of their children, those rights must be balanced against the state's responsibility to further the health and safety of children. Accordingly, when a child's life or health is endangered by his or her parents' decisions regarding the child's medical care, the state may, in some circumstances, temporarily intervene without violating the parents' constitutional rights. With this framework in mind, we consider the Jensens' specific claims against Dr. Wagner, Ms. Cunningham, and Mr. Anderson.
a. Dr. Wagner's Conduct Does Not Amount to a Flagrant Violation of the Jensens' Right to Direct the Medical Care of Parker
¶ 79 The Jensens allege Dr. Wagner committed several violations of their constitutional right to direct Parker's medical care. First, they contend Dr. Wagner made material factual misrepresentations and omissions to DCFS, the juvenile court, and others in order to induce a transfer of custody. The Jensens also contend that Dr. Wagner interfered with the Jensens' request for independent confirmation by contacting and attempting to influence the reviewing physician at Dana-Farber. Finally, the Jensens allege that Dr. Wagner reported them to the State for medical neglect because they informed Primary Children's that they were going elsewhere to seek confirmation of the diagnosis.
¶ 80 There is no evidence in the record from which it can be inferred that Dr. Wagner's conduct was motivated by anything other than a reasonable belief that Parker was in danger of serious harm. We agree with the federal district court that "the Jensens ask the [c]ourt to draw a number of unreasonable inferences, which the record plainly will not support, in order to attribute a more dubious purpose to Dr. Wagner's actions." P.J. ex rel. Jensen v. Utah, No. 2:05-CV-739 TS, 2008 WL 4372933, at *18, 2008 U.S. Dist. LEXIS 72334, at *55 (D.Utah Sept.22, 2008).
¶ 81 For example, the Jensens assert that Dr. Wagner was a "co-investigator" of a clinical trial for which Parker might have been eligible, suggesting that Dr. Wagner wanted to get Parker enrolled into the trial, and that he was motivated by this desire rather than Parker's medical interests. But the Jensens have not pointed to any evidence that Dr. *486 Wagner was a co-investigator of the study. In fact, the study for which Parker was possibly eligible was a Phase III Clinical Trial. Dr. Wagner was involved in only one clinical trial while he was at Primary Children's, and it was a Phase I study.
¶ 82 Additionally, it is undisputed that under the study's eligibility criteria, a patient could be enrolled in the trial only within thirty days of the "diagnostic biopsy." Dr. Wagner had calendered the date of Parker's biopsy as May 2, 2003. Thus, by June 2, Parker was no longer eligible to participate in the trial. If Dr. Wagner's real motivation was to get Parker enrolled, he almost certainly would have ceased pressing after the June 2 deadline. But he did not. In fact, it was not until June 16 that Parker's case was referred to DCFS. Seeking to avoid this conclusion, the Jensens assert that Dr. Wagner had cited a medical article that measured the deadline for enrollment in the study from the date of diagnosis, which would have been May 20. But like the claim that Dr. Wagner was a "co-investigator" of the study, this assertion is unsupported in the record.
¶ 83 Turning to the Jensens' specific allegations, there simply is no evidence from which it can be reasonably inferred that Dr. Wagner deliberately misrepresented the events and circumstances surrounding Parker's medical care. Even assuming Dr. Wagner withheld information or otherwise gave a less than complete picture of the circumstances surrounding Parker's care, there is no evidence that he did so deliberately.
¶ 84 Regarding Dr. Wagner's alleged interference with the Jensens' request for a second opinion at Dana-Farber, we have reviewed the alleged offending communication between Dr. Wagner and the institute, and we conclude that it does not support a reasonable inference that Dr. Wagner attempted to interfere with the second opinion sought by the Jensens.
¶ 85 The Jensens' final allegationthat Dr. Wagner reported them to the State for medical neglect because they informed Primary Children's that they were going elsewhere to seek confirmation of the diagnosisis also devoid of support in the record. It is simply a bald allegation.
¶ 86 In sum, there is nothing to support a reasonable inference that Dr. Wagner was not motivated by a legitimate concern for Parker's care. The Jensens have not pointed to any admissible evidence from which it can reasonably be inferred that Dr. Wagner committed a flagrant violation of the Jensens' constitutional rights, especially given that neither this Court nor the Utah Court of Appeals has previously addressed the scope of a parent's right to direct the medical care of his or her child.
b. Ms. Cunningham's Conduct Does Not Amount to a Flagrant Violation of the Jensens' Right to Direct Parker's Medical Care
¶ 87 The Jensens contend that Ms. Cunningham committed two violations of their constitutional rights. First, they contend Ms. Cunningham failed to conduct any investigation of the medical neglect allegations. Specifically, they claim she had a duty under Utah law to investigate Parker's referral and that had she undertaken such an investigation, she would have discovered several misrepresentations and omissions made by Dr. Corwin and Dr. Wagner. But this claim fails because there is no evidence to indicate that Ms. Cunningham had reason to question the veracity of the information and opinions given to her by Drs. Wagner and Corwin. Even if Ms. Cunningham had a duty to investigate, we simply are unwilling to say that her decision to rely solely on a medical professional's report in what she reasonably perceived was an emergency situation constitutes a flagrant violation of the parental right to direct a child's medical care.
¶ 88 The Jensens' second claim is that Ms. Cunningham submitted an affidavit to the juvenile court that contained misleading information. In the affidavit, Ms. Cunningham stated that a sample of Parker's tissue was sent to Dana-Farber for a second opinion, but did not state that the second opinion was never given. Additionally, the affidavit states that Parker underwent a CT and bone scan, but omits the fact that the test results were normal. It also states that *487 the Jensens were pursuing IPT, when Ms. Cunningham knew they were not. Finally, Ms. Cunningham's affidavit omitted the fact that she had not spoken to Dr. Coffin, and in it Ms. Cunningham claimed that Dr. Tishler had said Parker should commence chemotherapy, when she knew he had actually said that he would not be making final treatment recommendations until all of the testing was complete.
¶ 89 Ms. Cunningham has admitted that in hindsight some of the information in the affidavit was potentially misleading. Nevertheless, we conclude that the omissions or misstatements were largely immaterial to the juvenile court proceedings. And the Jensens have offered no evidence to suggest Ms. Cunningham was motivated by anything other than a desire to further the best interests of Parker. Thus, the Jensens have provided no evidence from which it can reasonably be inferred that Ms. Cunningham committed a flagrant violation of the Jensen's right to direct Parker's medical care.
c. Mr. Anderson's Conduct Does Not Amount to a Flagrant Violation of the Jensens' Right to Direct Parker's Medical Care
¶ 90 The Jensens contend that Mr. Anderson committed several violations of the Jensens' right to direct Parker's care. First, the Jensens claim Mr. Anderson imposed a "standard of comparative fitness on the Jensens," under which he took the position that, if there were conflicting opinions between a parent's physician and a physician upon whom the State is relying, the parents could not make their own choice. Second, the Jensens contend Mr. Anderson refused to authorize the dismissal of the neglect proceedings unless Parker was placed in the care of a board certified pediatric oncologist.
¶ 91 These two allegations lack merit. By the time Mr. Anderson became involved in Parker's case in late August 2003, the juvenile court had already ordered Parker to begin chemotherapy administered by a board certified pediatric oncologist and had placed him in the state's protective custody because the Jensens had missed the court-imposed deadline. In this sense, Mr. Anderson did not impose any standard upon the Jensens; any standard imposed was imposed by the juvenile court, which had ordered that Parker must be treated with chemotherapy by a board certified pediatric oncologist. Based on these undisputed facts, the position taken by Mr. Anderson, including his refusal to dismiss the proceedings unless the Jensens placed Parker in the care of a board certified pediatric oncologist, was in accord with the juvenile court order.
¶ 92 The Jensens also allege that Mr. Anderson told them that he would not include additional diagnostic testing as part of DCFS's pursuit of the medical neglect allegations unless the Jensens agreed to place Parker in foster care. Given the timing of Mr. Anderson's involvement, even if it were true that Mr. Anderson told the Jensens that additional testing was contingent upon Parker's placement in foster care, the statement was immaterial. By the time Mr. Anderson became involved, the juvenile court had already granted protective custody of Parker to the State. Mr. Anderson's statement therefore had no effect upon the juvenile court proceedings and caused the Jensens no damage.
¶ 93 The Jensens' final claim is that Mr. Anderson had knowledge that Dr. Johnston had decided to recommend chemotherapy before receiving the results of the genetic tests in violation of the September 5, 2003 stipulation and failed to inform the juvenile court of this fact. This allegation is unsupported by the record. Even assuming it is true that Dr. Johnston violated the stipulation by recommending chemotherapy before the genetic testing results were back, the Jensens have offered no evidence from which it can reasonably be inferred that Mr. Anderson knew that such conduct would be a violation of the stipulation.
¶ 94 Mr. Anderson became involved in this case only after the State had been granted protective custody of Parker and the Jensens had violated the juvenile court order requiring them to begin chemotherapy by August 8. His role was limited to trying to bring the Jensens into compliance with the juvenile court orders so Parker could get what was considered medically necessary care. His *488 actions did not violate the Jensens' right to direct the medical care of Parker.
2. The Right to Procedural Due Process
¶ 95 The Jensens also claim that their procedural due process rights were violated by defendants Wagner and Cunningham. Article I, section 7 of the Utah Constitution contains a procedural component. Under it, "notice and opportunity to be heard. . . must be observed in order to have a valid proceeding affecting life, liberty, or property." Wells v. Children's Aid Soc'y of Utah, 681 P.2d 199, 204 (Utah 1984). Additionally, "[t]o be considered a meaningful hearing, the concerns of the affected parties should be heard by an impartial decision maker." Chen v. Stewart, 2004 UT 82, ¶ 68, 100 P.3d 1177 (internal quotation marks omitted).
¶ 96 The Jensens assert that Dr. Wagner's and Ms. Cunningham's "reckless or intentional misrepresentations" rendered the juvenile court proceedings so unfair as to violate the Jensens' procedural due process rights. To support their misrepresentation claim, the Jensens cite Walker v. State, in which we noted, "It is an accepted premise in American jurisprudence that any conviction obtained by the knowing use of false testimony is fundamentally unfair and totally incompatible with rudimentary demands of justice." 624 P.2d 687, 690 (Utah 1981) (internal quotation marks omitted). But even assuming Walker is applicable in this civil case, there is no evidence in the record that either Dr. Wagner or Ms. Cunningham deliberately made false statements or material omissions to the juvenile court.
¶ 97 The Jensens also claim Ms. Cunningham's failure to investigate the medical neglect allegations deprived them of an opportunity to be heard in a meaningful way. This claim also fails. At the juvenile court, the Jensens were free to challenge Ms. Cunningham's allegations, including the circumstances surrounding them. The Jensens were provided with adequate notice and a meaningful opportunity to be heard. Consequently, neither Ms. Cunningham nor Dr. Wagner committed a flagrant violation of the Jensens' procedural due process rights.[11]
3. The Jensens' Right to Be Free from Unreasonable Seizures
¶ 98 The Jensens' final claim is that their rights under article I, section 14 to be free from unreasonable seizure were violated when Mr. Jensen was arrested in Idaho in August 2003 and when both parents were "booked and released in Utah in September 2003." This court has recognized that while article I, section 14 and the Fourth Amendment of the United States Constitution have identical language, "we will not hesitate to give the Utah Constitution a different construction where doing so will more appropriately protect the rights of this state's citizens." State v. DeBooy, 2000 UT 32, ¶ 12, 996 P.2d 546. But we have also stated that, "[u]nder both constitutions, the general rule is that [unless] `specific and articulable facts. . . taken together with rational inference from those facts . . . reasonably warrant' the particular intrusion," the intrusion is unconstitutional. Id. ¶ 13 (third alteration in original) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). Therefore, it cannot be a flagrant violation of article I, section 14 if there was a reasonable basis to warrant the particular intrusion or, in other words, if there was probable cause for an arrest.
¶ 99 The Jensens contend that Mr. Jensen's seizure was unreasonable because it resulted from "culpable material misrepresentations." But Mr. Jensen was arrested only after the Jensens violated the juvenile court order that required the Jensens to begin chemotherapy by August 8. With respect to defendant Dr. Wagner, the alleged *489 seizure took place after he left Primary Children's and was succeeded by Dr. Albritton. In fact, there is no evidence that Dr. Wagner had any involvement in the procurement of the warrant that led to the arrest of Mr. Jensen. Therefore, Dr. Wagner could not have committed a flagrant violation of Mr. Jensen's rights under article I, section 14.
¶ 100 Ms. Cunningham did have some involvement in the events leading to Mr. Jensen's arrest. She signed an affidavit supporting the Application to Take a Child into Protective Custody after the Jensens missed the deadline for Parker to begin chemotherapy. Additionally, she informed the district attorney of the inability to serve the court issued warrant on the Jensens because they had left the state. This resulted in criminal charges against Mr. and Mrs. Jensen and the subsequent arrest of Mr. Jensen. The fact remains, however, that Ms. Cunningham was doing nothing more than attempting to enforce a juvenile court order that the Jensens were violating. A direct violation of a court order is probable cause for an arrest or seizure and therefore is a reasonable intrusion of rights under the Utah constitution. See, e.g., UTAH CODE ANN. § 77-18-1(12)(b)(ii) (2008) (authorizing a warrant for the arrest of a probationer in violation of court ordered probation); Goings v. Elliot, No. C 08-2544 PJH, 2010 U.S. Dist. Lexis 26015, at *15-22 (N.D.Cal. Mar. 19, 2010) (holding that probable cause existed to arrest or detain plaintiff for violation of a court order). Because the Jensens were in direct violation of the juvenile court order, the actions taken by Ms. Cunningham to effectuate their arrest were supported by probable case. Thus, Ms. Cunningham's actions were reasonable and warranted the intrusion on the Jensens' constitutional rights under article I, section 14.
¶ 101 The Jensens also argue that they suffered an unreasonable noncustodial seizure in violation of article I, section 14. According to the Jensens, a noncustodial seizure is one that results from state-imposed conditions that significantly, but not physically, restrict liberty. This court has never recognized that our Constitution guarantees a right to be free from unreasonable noncustodial seizure. As such, the right is not clearly established.
¶ 102 The Jensens nonetheless contend that the following is evidence of a flagrant violation of their purported right: They were unable to return to their home state without threat of arrest and removal of Parker; they were unable to take Parker for an evaluation in Houston, or to other physicians of their choosing; they were subjected to mandatory court appearances; they were ordered to give up their passports; Mr. Jensen lost his job; and, finally, they were subjected to media scrutiny and public ridicule. The Jensens claim that all of this amounts to such a significant restriction of their liberty that it constitutes a violation of their state constitutional rights.
¶ 103 We have already concluded that the defendants' conduct was motivated by a legitimate concern for Parker's life. Thus, in the absence of any precedent suggesting such an expansive reading of article I, section 14, we cannot conclude that the defendants' conduct constitutes a flagrant violation of the Jensens' rights.
CONCLUSION
¶ 104 The state district court erred in applying collateral estoppel because the legal standard for state and federal constitutional violations is not identical. We nonetheless affirm the district court's order on alternative grounds that are apparent in the record. Specifically, we hold that the Jensens' claims against defendants Eisenman and Albritton are barred under the doctrine of quasi-judicial immunity because the claims arise out of the defendants' roles in which they played an integral part in the judicial process. The claims against the remaining three defendants fail because, as a matter of law, the Jensens did not meet their burden of demonstrating that damages are an appropriate remedy for the alleged unconstitutional conduct.
*490 ¶ 105 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice NEHRING, and Judge ORME concur in Justice PARRISH'S opinion.
¶ 106 Due to his retirement, Justice WILKINS did not participate herein. Judge GREGORY K. ORME sat.
¶ 107 Justice THOMAS R. LEE became a member of the Court on July 19, 2010, after oral argument in this matter, and accordingly did not participate.
NOTES
[1] When reviewing a district court's grant of summary judgment, we consider "the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (internal quotation marks omitted). In this case, that party is the Jensens.
[2] Cytogenetic testing may be performed only on fresh or frozen tissue, and is therefore not possible when tissue is placed in formalin or paraffin. In contrast, although not optimal, molecular testing can be performed on tissue samples that have been placed in formalin or paraffin. Because the tissue removed from Parker's mouth by Dr. Christensen was placed in formalin or paraffin, cytogenetic testing could not be performed on that specimen.
[3] The complaint also named as a defendant Intermountain Health Care ("IHC"). However, the parties stipulated that none of the defendants was an IHC employee, and IHC was voluntarily dismissed from the case. Consequently, IHC is not part of the case or this appeal.
[4] In their brief, the Jensens make only a passing reference to their intentional tort claims, choosing instead to focus solely on their state constitutional claims. For this reason, we consider the intentional tort claims waived and affirm the district court's dismissal of them. Utah R.App. P. 24(a)(9); see also; State v. Wareham, 772 P.2d 960, 966 (Utah 1989) (declining to reach an issue raised by a party where the party's "brief totally fails to provide any reasons to support the contention").
[5] For these same reasons, the law of the case doctrine is inapplicable. The law of the case doctrine applies to preclude relitigation of an issue when the identical issue was litigated earlier in the same case. See IHC Health Servs., Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 26, 196 P.3d 588. Because the issues are different under the state and federal constitutions, the law of the case doctrine is inapplicable here.
[6] This statute has since been revised and renumbered.
[7] The United States Supreme Court has limited this federal absolute immunity test to exclude any administrative or investigative functions, even if they were performed as part of the judicial process. See Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S. Ct. 2606, 125 L. Ed. 2d 209 (1993). The Utah Court of Appeals has recognized that we have not addressed whether immunity would apply to administrative or investigative functions, but it nevertheless applied this limited immunity test to a claim of fraud. See Cline v. State, 2005 UT App 498, ¶ 40, 142 P.3d 127. We have not had the occasion to affirm or reject the court of appeals' application of the state limited immunity test, but we decline in this case to reach the issue because the record does not support the proposition that Ms. Eisenman or Dr. Albritton were performing administrative or investigative functions.
[8] In their reply brief, the Jensens assert that it would be improper for us to decide whether the defendants were protected by quasi-judicial immunity because related issues of fact are in dispute. They also argue that the defendants' material misstatements and omissions demonstrate they acted with malice and that for this reason immunity should not apply. We disagree with both assertions. First, our analysis focuses primarily on a defendant's function within the judicial process, not the manner in which that function is performed. See Black v. Clegg, 938 P.2d 293, 296 (Utah 1997) (holding that the filing of an inaccurate certificate was still protected by quasi-judicial immunity despite its errors); Spielman v. Hildebrand, 873 F.2d 1377, 1382 (10 Cir. 1989) (indicating that the testimony of a child welfare worker was protected by absolute immunity even though the testimony was false). In this case, we have concluded defendants Eisenman and Albritton were performing functions integral to their role in the judicial process. Second, even assuming they were guilty of misstatements or omissions in carrying out their judicial functions, it cannot reasonably be inferred from the facts that the defendants acted with malice, or even that any of the alleged misstatements or omissions were made intentionally.
[9] The Jensens actually alleged violations of several rights purportedly encompassed by article I, sections 1 and 7, including: (1) parents' right to direct their child's medical care free from governmental interference, unless such interference is narrowly tailored and in furtherance of a compelling state interest; (2) parents' right to follow medical recommendations of a licensed physician of their choosing, unless the State can establish that the recommendations are substantially below the norm; (3) parents' right not to be reported to the State for neglect because the parents are seeking confirmation of a diagnosis before implementing a state actor's medical recommendations; and (4) parents' right to an investigation of the reporting party's allegations before being forced to defend against State efforts to transfer custody in order to impose medical procedures on a child. Because all of these alleged violations ultimately arise under an asserted general right to direct the medical care of one's child, we consolidate our analysis of the specific claims.
[10] The statutes have since undergone minor revision. None of these revisions alters our analysis.
[11] In addition, even if we were to conclude that a flagrant violation of the Jensens' procedural due process rights occurred, monetary damages nonetheless would be an inappropriate remedy because the Jensens have failed to establish the third Spackman element, "that equitable relief. . . was and is wholly inadequate to [protect the plaintiff's rights or] redress [their] injuries." Spackman, 2000 UT 87, ¶ 25, 16 P.3d 533. Procedural due process violations are "particularly amenable to redress through equitable means [because] [s]uch relief can be precisely tailored to grant the very thing a plaintiff alleges has been wrongfully denieddue process." Id. ¶ 25 n. 11. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590168/ | 563 F.Supp. 135 (1983)
Ivonne MARTIN, Plaintiff,
v.
PAN AMERICAN WORLD AIRWAYS, INC., Defendant.
Civ. A. No. 82-2066.
United States District Court, District of Columbia.
April 26, 1983.
As Amended May 24, 1983.
*136 Irving Starr, Arlington, Va., for plaintiff.
George U. Carneal, Patricia A. Brannan, Washington, D.C., for defendant.
MEMORANDUM
FLANNERY, District Judge.
This matter comes before the court on the motion of the defendant, Pan American World Airways, Inc. ("Pan Am") for summary judgment. Pan Am argues that plaintiff's action to recover damages for the value of luggage and its contents lost while plaintiff was traveling on a Pan Am flight from Miami, Florida to Buenos Aires, Argentina cannot be maintained for two reasons. First, Pan Am argues that it has already paid the full amount for which it is liable pursuant to the provisions of the Warsaw Convention and applicable Civil Aeronautics Board tariffs. Second, Pan Am argues that plaintiff's subrogee negotiated a full settlement of plaintiff's claim with Pan Am and subsequently endorsed and deposited a check from Pan Am, thereby releasing Pan Am from further liability. For the reasons set forth below, defendant's motion for summary judgment is granted.
Facts
On December 20, 1980, plaintiff, Ivonne Martin, embarked on a flight from Washington, D.C. to Buenos Aires, Argentina. Plaintiff's travel originated in Washington, D.C. on flight number 355 to Miami, Florida. In Washington, plaintiff checked three pieces of baggage to Miami. In Miami, plaintiff picked up her luggage, to ensure that it would be rechecked through to Buenos Aires. She subsequently presented her baggage at the Pan Am desk of Miami Airport, to be checked aboard her international flight to Buenos Aires.
Pan Am's baggage handler received her bags, and issued claims checks to Martin. The baggage handler then tagged the bags. *137 However, he placed one baggage tag on one bag, two tags on a second bag, and no tag on Martin's third bag. In addition, he neglected to record the weight of the bags on plaintiff's baggage claim.[1]
Plaintiff states that she noticed that the baggage handler had failed to tag her third bag, and brought this to his attention. She states further that he replied that he had tagged the bag, and permitted it to disappear up the conveyor belt without checking into it further.
Martin did not declare or pay for excess valuation on the personal property contained in her luggage, nor did she request that her luggage receive special handling because of its value. In addition, plaintiff's ticket set forth the conditions of carriage of the Warsaw Convention, including the limited liability provisions of the Convention.
When plaintiff arrived in Buenos Aires, Argentina, she discovered that one piece of luggage was missing. She alleges that the luggage contained clothes, perfume, and jewelry worth approximately $16,000.[2] Plaintiff also claims that the luggage contained a title to property which she owns in Buenos Aires. Plaintiff seeks $50,000 in compensatory damages for the loss of the title.
The luggage has never been located by Pan Am. Plaintiff received $2,000 for the loss under the provisions of a transportation-floater insurance policy held by her employer, the Inter-American Development Bank. This policy was issued by the Insurance Company of North America, ("INA"). INA's rights to subrogation against Pan Am were then assigned to its adjuster, Recovery Services International, Inc. ("RSI"). RSI filed a claim with Pan Am seeking $2,000. Pan Am ultimately paid RSI $540, and RSI endorsed and deposited the check. Pan Am argues that the amount paid, $540, represents the full amount for which it is liable under the terms of the Warsaw Convention, and that plaintiff cannot seek further recovery.[3]
On July 26, 1982, Martin brought this complaint alleging breach of contract, breach of bailment, negligence, and conversion. Martin alleges that Pan Am negligently lost her baggage, and failed to tag and weigh the baggage. Martin alleges that these crucial omissions remove Pan Am from the protection of the limited liability provisions of the Warsaw Convention, and that Pan Am is liable for the full amount of the damages claimed.
Discussion
Defendant has moved for summary judgment on two separate grounds. First, Pan Am argues that it has paid to plaintiff's subrogee the full amount to which plaintiff could be entitled under the terms of the Warsaw Convention. Second, Pan Am argues that plaintiff's subrogee negotiated a full settlement of plaintiff's claim with Pan Am and subsequently endorsed and deposited a settlement check from Pan Am, thereby settling the claim and relieving Pan Am from further liability.
Because the court finds that the provisions of the Warsaw Convention limit Pan Am's liability for the loss of Martin's luggage, this court has no occasion to consider Pan Am's alternate argument.
The amount to which an airline may be liable for the loss, delay, or damage to baggage on international flights is expressly *138 limited by the terms of the Warsaw Convention.[4] The Convention provides:
In the transportation of checked baggage and of goods, the liability of the carrier shall be limited to the sum of 250 francs per kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires.
Article 22(2); 49 U.S.C. § 1502. The Warsaw Convention applies to the international flight at issue here, and Pan Am argues that Article 22(2) limits its liability for lost luggage to $20.00 per kilogram, or $9.07 per lb. Since Pan Am has paid the amount of its liability under the Convention, and because plaintiff did not declare excess valuation on her luggage, Pan Am argues that it has no further liability and that summary judgment is appropriate.
Plaintiff agrees that the provisions of the Warsaw Convention apply to the flight, but argues that Pan Am is not entitled to take advantage of the limited liability provisions of the Convention. Plaintiff raises three objections to Pan Am's invocation of the Convention. First, plaintiff alleges that Pan Am neglected to place a baggage tag on the missing bag and that the bag is therefore not "checked baggage" within the meaning of Article 22(2). Second, plaintiff argues that Pan Am's failure to record the weight of the bags as required by Article 4(3)(f) of the Convention denies Pan Am the benefit of the limited liability provisions of the Convention. Finally, plaintiff alleges that the ticket agent ignored her request to ticket her third bag despite her request that he do so. Plaintiff alleges that this action constitutes wilful misconduct within the meaning of Article 25 of the Convention, and therefore removes Pan Am's entitlement to limit its liability for lost baggage.
A. Checked Baggage
When plaintiff presented her baggage at Miami Airport to be checked aboard her flight, Pan Am's baggage handler attached one baggage tag to one of plaintiff's suitcases, and two tags to another. However, he failed to attach a tag to the third, and subsequently missing, bag. Plaintiff stated that this "act of negligence operates to remove Plaintiff's claim from the dictates of the Warsaw Convention." Plaintiff's Mem. at 1. The court does not agree that Pan Am's failure to attach a baggage tag to the suitcase negates the application of the Convention.
Pan Am did deliver a baggage claim to the plaintiff and accepted her luggage. Article 18 of the Warsaw Convention provides in pertinent part:
(1) The carrier shall be liable for damages sustained in the event of the destruction or loss of, or of damages to, any checked baggage or any goods, if the occurrence which caused the damage so sustained took place during the transportation by air.
The court finds that the baggage, received by the airline and for which a baggage check has been issued, constitutes "checked baggage" subject to the Warsaw Convention, despite the airline's failure to fasten a tag to the piece of baggage. If a check has been issued to the passenger, the airline has accepted the luggage. The check is the means of checking, or regulating something. In this case, it is baggage. The baggage tag itself helps to identify the baggage, and to alert the handlers of the destination and flight. But its affixation is not required to "check" the baggage. Checking clearly occurs when Pan Am takes possession of the defendant's baggage and issues a receipt. When the luggage is taken from Martin, and she can retrieve it only when she arrives at her destination, the airline's rights and obligations for the baggage attach. The fact that a tag is not attached does not make the baggage "un *139 checked" nor does it affect the airline's duties under the Convention.
This reading of the Convention is reinforced by the language of Article 4(4). That article provides, "for the transportation of baggage ... the carrier must deliver a baggage check." The Article does not require that each bag be tagged to be checked or registered baggage within the Convention. Whether or not a tag is affixed to a particular bag, the luggage has been processed, or "checked" when a baggage check is delivered. Plaintiff's argument is, therefore, rejected.
B. Weight of the Luggage
Plaintiff argues, in the alternative, that defendant has removed itself from the limited liability conferred by the Convention by failing to weigh her luggage. The Warsaw Convention provides that a baggage claim must contain "the number and weight of the packages." Article 4(3)(f). Article 4(4) states that a carrier that accepts luggage that does not contain the particulars set forth in that Article "shall not be entitled to avail himself of those provisions of the convention which exclude or limit his liability."
Several courts have applied the language of the Convention under facts analogous to those at issue here and have found that an airline failing to weigh a passenger's luggage may not claim limited liability under the Convention. See Maghsoudi v. Pan American World Airways, Inc., 470 F.Supp. 1275, 1278-1280 (D.Haw.1979); Kupferman v. Pakistan International Airlines, 438 N.Y. S.2d 189, 191-92, 108 Misc.2d 485 (N.Y.Civ. Ct.1981); Hill v. Eastern Airlines, Inc., 425 N.Y.S.2d 715, 716, 103 Misc. 306 (N.Y.Civ. Ct.1980).[5]
However this court does not find this authority, which bases its holding on a literal reading of the record keeping provisions of the Convention, controlling under the facts before it. The primary purpose of the Warsaw Convention is to limit the potential liability of international air carriers. See Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 Harv.L.Rev. 497, 499 (1967).[6] This was accomplished by establishing limits on the amounts to which an airline would be liable for personal injury and property loss.
Although improvements in baggage handling security and in the airline's competitive posture have eroded this need to some extent, the limited liability provisions of the Convention remain intact. The court must follow the fundamental principle that a treaty, whether construed strictly, or liberally, must be interpreted to effectuate its evident purpose. See Bacardi Corp. v. Domenech, 311 U.S. 150, 163, 61 S.Ct. 219, 225, 85 L.Ed. 98 (1940). As noted by one court in a case establishing general guidelines for interpreting the Warsaw Convention
The language of the provision that is to be interpreted is, of course, highly relevant to this inquiry but it should never become a "verbal prison." Other considerations, such as the court's sense of the conditions that existed when the language of the provision was adopted, its awareness of the mischief the provision was meant to remedy, and the legislative history available to it, are also relevant to discern and articulate the provision's purpose.... *140 It would be inconsistent with the "wise counsel to reject `tyranny of literalness,'" if the court in the latter situations did not seek to interpret the provision so as to effectuate its purpose, even if this requires departing in some measure from the letter and reading the language in a practical rather than literal fashion. (Citations omitted).
Eck v. United Arab Airlines, Inc., 360 F.2d 804, 812 (2d Cir.1966). See also Reed v. Wiser, 555 F.2d 1079, 1087-89 (2d Cir.1977), cert. denied, 434 U.S. 922, 98 S.Ct. 399, 54 L.Ed.2d 279 (1978).
The treaty should, therefore, be interpreted to effectuate its evident purpose, and the weight requirement at issue here must be interpreted in light of that purpose. There are two obvious ways in which the weight requirement furthers the intent of the Convention. The most obvious purpose of the weight requirement is to fix the amount of liability if luggage is lost, and to afford a definite basis for passengers to recover damages. In the absence of such a notation, a passenger would be unable to assert a claim under the Convention, because her recovery is based upon the weight of the luggage.
However, this function is not undermined under these facts. Plaintiff stated in a Pan American "Baggage Claim Form" executed by her soon after the loss, that the missing baggage weighed between 30 and 35 pounds. There is no dispute as to the approximate weight of the bag. Yet Martin argues that because the baggage handler neglected to record the precise weight of the baggage, she should be permitted to hold Pan American liable for the full value of her luggage.
The court finds plaintiff's request to be contrary to the primary purpose of the Warsaw Convention, and the limited liability provisions central to the Convention. This court believes that the Civil Aeronautics Board Tariff, Rule 55(c)(3) Note 3 properly supplements Convention Article 4, and represents an appropriate accommodation of the need to preserve limited liability for property damage, and the need to ensure some means of fixing the amount of liability. That tariff provides:
For purposes of determining liability under the Convention with respect to passenger baggage ..., the weight of each piece of such baggage shall be deemed to be the maximum allowable weight for each piece of such baggage under the Rule, unless the actual weight is stated on the baggage check.
If Pan American neglects to weigh the baggage, but the approximate weight of the baggage is otherwise available or agreed to, this court can find no commercially justifiable reason to hold Pan American liable for the full amount of plaintiff's claim. The court finds, however, that when Pan American neglects to weigh baggage, its tariff requires it to apply the maximum weight allowance for a particular piece of luggage in determining its liability under the Convention. The airline is penalized under the tariff for its failure to weigh the baggage. This penalty is equal to the difference between the actual or estimated weight of the baggage and the maximum weight allowance. The tariff provides an alternative means of fixing the amount of liability, and the record keeping purpose of the weight requirement is satisfied.
A second function of the weight requirement is to ensure that a passenger is aware of the weight of the luggage, so that she may determine whether she should purchase additional insurance. See Maghsoudi at 1279. However, that function is not undermined either. Plaintiff was aware of the approximate weight of her luggage, and she was on notice of the limited liability provisions of the Convention. Accordingly, she had the information necessary to make a rational decision concerning her need for insurance. In addition, in light of the large number of valuable items plaintiff alleges were contained in the missing suitcase, the plaintiff cannot easily argue that the airline's failure to record the weight of her luggage deprived her of adequate notice of her need to procure additional insurance. The weight notation would have specified a precise amount of liability, but within a *141 range of nominal amounts. Even in the absence of a weight notation, plaintiff must have realized that the airline's liability would be far less than the value of the contents of her luggage. Therefore, the airline's failure to record the weight did not impede plaintiff's opportunity to make a reasoned decision concerning insurance.
The court concludes that the airline's failure to record the weight of Martin's luggage is a technical and insubstantial omission which did not prejudice Martin, and which should not act to extend the airline's liability beyond the limits set forth in the Warsaw Convention.[7] Martin was an experienced traveler, traveling with valuables allegedly worth $16,000. It is well understood by air travelers that separate insurance is available to cover the risks of loss of luggage. And, the passenger was fully advised of the limited liability provisions of the Convention. Martin could elect to take the risk of excess damage, or she could insure. Insurance charges are nominal. She chose not to insure. It is not important that Martin failed to take out insurance, what is important is that she knew of the liability limits, and had an opportunity to do so. The court cannot find therefore, that Pan Am is liable for the full amount of plaintiff's loss. Pan Am is under an obligation to accept and transport plaintiff's luggage, and is strictly liable for loss. In return, Pan Am is provided with limited liability as set forth in the Convention. If this court adopted plaintiff's argument it would disrupt the balance of economic risks set forth in the Convention. The court declines to do so.
C. Wilful Misconduct
At oral argument, plaintiff raised a third objection to defendant's motion for summary judgment. Plaintiff alleged that a genuine issue of material fact exists with respect to whether Pan Am engaged in "wilful misconduct" within the meaning of Article 25 of the Convention. Article 25 provides that the "carrier shall not be able to avail himself of the provisions of this convention which exclude or limit his liability, if the damage is caused by his wilful misconduct." Plaintiff alleges that such misconduct occurred when the baggage handler refused to check to see whether plaintiff's third bag had been tagged, despite plaintiff's request that he do so.
This court concludes that plaintiff's allegations, even when the accuracy of the facts alleged are assumed, are insufficient to constitute wilful misconduct. Article 25 of the Convention has been invoked successfully to impose unlimited liability in a very few cases. See Delgado v. Pan American World Airways, Inc., 16 Avi. 18,462, 18,467 (P.R.1980); Cohen v. Varig Airlines, 15 Avi. 17,112 (N.Y.Sup.Ct.1978). The Warsaw Convention participants carefully constructed a restrictive standard of liability. See Note, Aviation Law: Attempts to Circumvent the Limitations of Liability Imposed on Injured Passengers by the Warsaw Convention, 54 Chi-Kent L.Rev. 851, 861 (1978).
The requirement of wilful misconduct is a "conscious intent to do or omit from doing an act from which harm results to another, or an intentional omission of a manifest duty. There must be a realization of the probability of injury from the conduct, and a disregard of the probable consequences of such conduct." Grey v. American Airlines, Inc., 227 F.2d 282, 285 (2d Cir.1955), cert. denied, 350 U.S. 989, 76 S.Ct. 476, 100 L.Ed. 855 (1956). See also Cohen v. Varig Airlines, supra, at 17, 112; Danziger v. Air Force, 16 Avi. 17,261, 17,265 (S.D.N.Y.1979).
Although defendant's conduct indicates that a genuine issue of material fact may *142 exist as to possible negligence on the part of the baggage handler, it does not indicate wilful misconduct. The circumstances alleged by plaintiff do not suggest that the baggage handler realized some probability of injury arising out of his conduct, and intentionally disregarded the consequences of such conduct.[8]
Accordingly, the court finds that plaintiff's final argument must be rejected. Defendant's motion for summary judgment is, therefore, granted. An appropriate Judgment accompanies this Memorandum.
JUDGMENT
This matter came before the court on defendant's motion for summary judgment. After reviewing the defendant's memorandum, and the opposition thereto, and the entire record in this case, it is, by the court, this 26th day of April, 1983,
ORDERED, ADJUDGED and DECREED that defendant's motion for summary judgment is granted.
NOTES
[1] Pan Am does not allege that it weighed Martin's bag, or that it tagged plaintiff's third bag. For purposes of this motion, this court must view the facts in the light most favorable to the non-movant.
[2] Plaintiff originally estimated the value of the items in her luggage at $10,000. See Defendant's Mem. Attach. 3.
[3] Pan American computed its liability by applying C.A.B. Tariff Rule 55(c). The tariff provides for recovery of $20.00 per kilo per piece of luggage. In the absence of a weight recordation on the baggage check, the weight of each piece of baggage is deemed to be the maximum allowable weight. The tariff provided for a maximum weight of 70 lbs, or 32 kilos. Pan American's liability was, therefore, $640.00. Because Pan American had given plaintiff an Because Pan American had given plaintiff an advance of $100.00, Pan Am's remaining liability was computed to be $540.00.
[4] Convention Relating to Air Transportation, concluded at Warsaw, October 12, 1929. 49 Stat. 3000 (1929); T.S. 876; 49 U.S.C. § 1502.
[5] See also Greeley v. KLM Dutch Airlines, 85 F.R.D. 697, 700 (S.D.N.Y.1980) (airline failing to comply with baggage check provisions of Article 4 cannot thereafter rely on limited liability provisions of Article 22(2)) (dicta).
[6] Secretary of State Cordell Hull, in transmitting the Warsaw Convention to the United States Senate in 1934, stated
It is believed that the principle of limitation of liability will not only be beneficial to passengers and shippers as affording a more definite basis of recovery and as tending to lessen litigation, but that it will prove to be an aid in the development of international air transportation, as such limitation will afford the carrier a more definite and equitable basis on which to obtain insurance rates, with the probable result that there would eventually be a reduction of operating expenses for the carrier.
Senate Comm. on Foreign Relations, Message from the President of the United States Transmitting a Convention for the Unification of Certain Rules, Sen.Exec.Doc. No. G, 73d Cong., 2d Sess. 3-4 (1934).
[7] See also Grey v. American Airlines, 227 F.2d 282 (2d Cir.1955), cert. denied, 350 U.S. 989, 76 S.Ct. 476, 100 L.Ed. 855 (1956). In Grey, the airline had failed to make specific reference on the passenger ticket to the intermediate "agreed stopping places" of the flight as required by Article 3 of the Convention. The court found that the airline was nevertheless entitled to claim the benefit of the limited provisions of the Convention. The court of appeals found that the trial court properly concluded that the record keeping requirement embodied in that article was a technical and minor one, the omission of which would not affect its liability under the Convention. Id. at 284.
[8] In a case involving theft of valuables from baggage, one court established a similar test. In Olshin v. El Al Israel Airlines, 15 Av. 17, 463 (E.D.N.Y.1979) the court held that to establish wilful misconduct, the plaintiff passenger must show that the airline:
(1) was aware that she had jewelry in her baggage; (2) knew that there was a danger that the jewelry would be stolen; (3) intentionally failed to warn her of this danger; and (4) knew that the failure to warn plaintiff of the danger of theft would probably result in the loss of the jewelry. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590189/ | 12 Neb. App. 855
PHOUMY KAM, APPELLEE,
v.
IBP, INC., APPELLANT.
No. A-03-481.
Nebraska Court of Appeals.
Filed September 21, 2004.
Bruce M. Smith for appellant.
Rod Rehm and Todd Bennett, of Rehm & Bennett Law Firm, for appellee.
IRWIN, Chief Judge, and SIEVERS and INBODY, Judges.
INBODY, Judge.
INTRODUCTION
IBP, inc., appeals from the Workers' Compensation Court review panel's affirmance of the workers' compensation trial court's award to Phoumy Kam of temporary partial disability and temporary total disability benefits for an injury she incurred while employed by IBP. For the reasons set forth herein, we af-firm in part and in part reverse, and remand the cause for a correct award.
STATEMENT OF FACTS
Kam was born in 1945, and she emigrated from Laos to the United States when she was 35. In 1991, she began working for IBP at its plant in Lexington, Nebraska. On January 13, 1998, Kam was performing a job that required her to pick up meat from a conveyor belt and place it on another conveyor belt. At one point, when she was throwing a piece of meat onto the second conveyor belt, she heard a "pop" and felt a sharp pain in her right arm. At the time of the injury, Kam's average weekly wage was $369.59 for temporary indemnity purposes and $372 for permanent indemnity purposes. Kam notified her supervisor of the in-jury and was taken to see a nurse; however, Kam did not consult a physician until she saw Dr. Mark Jones on March 3. She was further examined by Dr. W. Michael Walsh, who recommended surgery on her right shoulder. Surgery was performed on her right shoulder and biceps area on July 2. This surgery did not alleviate the pain in Kam's shoulder.
As a result of this pain, and the operation, Kam's duties at IBP were restricted. On July 16, 1998, Dr. Walsh allowed Kam to return to work in a "runner" position, in which she was not to use her right arm. At a recheck appointment on August 13, Dr. Walsh did not change these restrictions. At Kam's next recheck appointment, on September 24, Dr. Walsh commented that her recovery was progressing more slowly than expected and noted that she should "work in an environment that's not as cold to see if this would decrease her symptoms at work." Dr. Walsh again evaluated Kam's restrictions on November 19 and noted that she "[n]eed[ed] to limit weight and positions in which she use[d]" her right arm and that she was not to lift anything over 10 pounds or use her arms above shoulder height.
On December 23, 1998, Kam was examined by Dr. Ian Crabb, who began to care for Kam when Dr. Walsh stopped seeing patients in Lexington. Dr. Crabb noted that Kam was working "doing finger meats[,] which is her regular job," and put her on a 6-hour workday limit. On January 21, 1999, Dr. Crabb again ex-amined Kam and noted that she had "tremendous pain of the right shoulder and neck radiating down the arm." At that point, Dr. Crabb planned a manipulation under anesthesia to alleviate Kam's shoulder pain, as well as a surgical procedure to address carpal tunnel symptoms she had developed. Dr. Crabb performed the manipulation and surgery on February 3. On April 1, Dr. Crabb approved Kam to "return . . . to her job via [a] work hardening program." On May 27, Dr. Crabb again evaluated Kam and re-moved all work restrictions, finding her to be at maximum medical improvement.
Dr. Crabb saw Kam again on June 17, 1999, noting that she remained in "quite severe pain"; however, at that time, Dr. Crabb felt that additional surgery would not help Kam's condition. In July, Dr. Crabb notified IBP that Kam had sustained permanent disability of 15 percent in her right upper extremity. Kam was again examined by Dr. Crabb on October 28. Dr. Crabb noted that Kam had "continued decreased [range of motion] and pain in the shoulder," but he again believed that surgery would not be beneficial. In response to an inquiry by IBP on May 3, 2000, Dr. Crabb noted that the amount of work Kam did with her right arm "exacerbat[ed] her chronic pain" and that "although she can use the right arm, the frequency should be decreased." On May 4, Dr. Crabb examined Kam for a "final follow-up of her right shoulder pain" and found that she had continued pain and decreased range of motion; further, Dr. Crabb noted that he would "go ahead and write for a permanent restriction for the right arm with no repetitive use."
At trial, Kam testified that her arm did not feel any better after the surgery on her shoulder in July 1998; in fact, she said that her condition was worsened by the surgery. Kam indicated that when she returned to IBP after the surgery, she had new work restrictions. She was given a delivery job for 6 weeks and a box labeling job for 2 weeks. Thereafter, she was told to perform the above-mentioned "finger meat" job, despite the fact that she complained that she was still in severe pain. After Kam complained that the "finger meat" job caused her too much pain, her position was changed to picking up fat off of a conveyor belt.
Kam further testified that she continued to see a doctor after her first surgery. After a week off from work following her sur-gery for carpal tunnel syndrome in February 1999, at which time her shoulder was also worked on again, she returned to IBP and was placed on a "pick trim" job, which involved picking up shank meat off of a conveyor belt. Kam testified that the "pick trim" job was harder for her to perform because the pieces of meat were bigger and because she had "to use one hand and a lot of times the belt would stop." She said that she performed this job or the job picking up fat off of a conveyor belt until she quit on September 2, 2000. Kam also indicated that her shoulder felt no better after her 1999 surgery, that her pain was so severe that she could not bear it anymore, and that the pain caused her to "sit around the house and cry." She indicated that she had to take pain pills three times a day due to the pain in her shoulder and that she had not worked since leaving IBP because she did not think she could handle it.
On cross-examination, Kam testified that she could no longer lift her right arm over her head due to pain in her shoulder. She further testified that she had asked the nurse at IBP for icepacks, ice bags, or pain killers, but that these requests were denied. She again said that her shoulder had not gotten any better after either surgery and reported that she still suffered pain and stiffness in her right arm. She indicated that she did not believe she could work anymore and that "any job is out of the question."
Margaret Fagot, the medical case manager at IBP in Lexington, testified next. She indicated that Dr. Crabb had approved the "pick trim" job for Kam and that the position was one that accommodated Kam's restrictions. Fagot further testified that Dr. Crabb had approved the "finger meat" job for Kam, but that Kam said she could not perform that job because it caused her too much pain. On cross-examination, Fagot agreed that Kam had appeared to be "giving an effort" in performing her duties and that Kam, according to a "Claim Comments" document, had resigned from IBP due to the pain she encountered while working.
After all evidence was adduced, the Workers' Compensation Court entered its decision. The court found that Kam was temporarily partially disabled from March 3 through July 1, 1998 (172/7 weeks); was temporarily totally disabled from July 2 through 16, 1998 (21/7 weeks); and was temporarily partially disabled from July 17, 1998, through February 2, 1999 (285/7 weeks). Her total period of temporary partial disability was thus found to be 46 weeks. The court further found:
With the actual restrictions of Dr. Walsh, and the testimony and history given by [Kam] with respect to her ability to work . . . at best, [Kam] should have remained in the "runner position" . . . prior to November 19, 1998. This becomes important when the extent of [Kam's] loss of earning power for this period of temporary partial disability is discussed below at paragraph V.
The court also found:
[Kam] testified in a believable and credible manner that one of her supervisors had told her that her injury was not as severe and she could do normal work. She testified that for 6 weeks she delivered orders to the kill floor (the "runner position"), then for two weeks she labeled boxes, mainly using her left hand. . . . Within two months (by September 2, 1998) of her shoulder surgery, [Kam] was doing the finger meats job, even though Dr. Walsh had not released her to do so. It was this environment which was cold, and which was essentially restricted from [Kam's] release to return to work, as of September 24, 1998. As a result, prior to November 20, 1998, the only position suitable for [Kam] to work was the "runners [sic] position."
The court explained its finding that Kam was temporarily partially disabled from November 20, 1998, through February 2, 1999, by noting that she had significant lifting restrictions and that she "was never able to progress to working an 8 hour day." Further, the court found that because Kam was temporarily partially disabled with extremely significant restrictions during this timeframe, she "had a 100 percent loss of earning power." The court explained,
after reviewing all the evidence for the periods of time for which [Kam] was temporarily partially disabled, that pursuant to Cords v. City of Lincoln, 249 Neb. 748, 545 N.W.2d 112 (1996); and, Sidel v. Travelers Ins. Co., 205 Neb.541, 288 N.W.2d 482 (1980), [Kam] had a 100 percent loss of earning power. At the most, [Kam] had the physical ability to hold a part time, or odd lot position. This results in her entitlement to $246.39 per week for 46 weeks for temporary partial disability.
The court further found that Kam was temporarily totally disabled from February 3 through May 27, 1999 (162/7 weeks). Thus, the court found that the total time she was temporarily totally disabled was 183/7 weeks. The court then held that Kam reached maximum medical improvement on May 28, 1999, and that she "sustained a permanent partial disability to her right upper ex-tremity of 11 percent."
Both Kam and IBP filed applications for review on August 13, 2002. The Workers' Compensation Court review panel noted that IBP's "primary argument . . . addressed the award of a 100 percent loss of earning power during periods of temporary partial disability when [Kam] returned to work in accommodated positions and worked six hours per day and sometimes full time." In addressing this argument, the review panel found:
We generally agree with [IBP's] argument that an award of 100 percent loss of earning during a period of temporary partial disability provides a disincentive for employers to accommodate injured employees in light duty employment. We further acknowledge that an employee who returns to part time light duty work and receives a 100 percent loss of earning power during the period of temporary partial disability may receive a windfall. Conversely, a non English speaking employee, with few transferable job skills, physical restrictions, whether temporary or permanent, and living in Lexington, Nebraska has very real employment issues and may well be a temporary odd lot employee as defined by our jurisprudence. If an injured employee with permanent impairment and restrictions, working part time[,] may be an odd lot employee entitled to permanent total disability, we see no logical reason why the same standards may not be applied to an injured employee with temporary partial disability.
Accordingly, the review panel affirmed the award of the trial court in its entirety.
IBP has timely appealed to this court.
ASSIGNMENTS OF ERROR
On appeal, IBP alleges that the Workers' Compensation Court was clearly wrong in its determination of the periods of Kam's temporary partial disability and that the court erred in awarding Kam a 100-percent loss of earning power during periods of temporary partial disability.
STANDARD OF REVIEW
[1] An appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. Mabile v. Drivers Mgmt., Inc., 11 Neb. App. 765, 660 N.W.2d 537 (2003).
[2] In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review panel, a higher appellate court reviews the findings of the single judge who conducted the original hearing. Brummer v. Vickers, Inc., 11 Neb. App. 691, 659 N.W.2d 838 (2003). Upon appellate review, the findings of fact made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Id.
[3] If the record contains evidence to substantiate the factual conclusions reached by the trial judge in workers' compensation cases, an appellate court is precluded from substituting its view of the facts for that of the compensation court. Noordam v. Vickers, Inc., 11 Neb. App. 739, 659 N.W.2d 856 (2003). Regarding questions of law, an appellate court in workers' compensation cases is obligated to make its own determinations. Id.
ANALYSIS
Periods of Temporary Partial Disability.
[4] IBP first alleges that the trial court was clearly wrong in determining Kam's periods of temporary partial disability. "Whether a claimant has sustained disability which is total or partial and which is temporary or permanent is a question of fact." Miller v. E.M.C. Ins. Cos., 259 Neb. 433, 440, 610 N.W.2d 398, 406 (2000). As noted above, "[u]pon appellate review, the findings of fact made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong." Brummer, 11 Neb. App. at 697, 659 N.W.2d at 844.
The trial court first found that Kam was temporarily partially disabled from March 3 through July 1, 1998, for a total of 172/7 weeks. March 3 was the first time Kam sought medical treatment for her shoulder injury; July 1 was the day before Kam's first surgery. After examining her on March 3, Dr. Jones did allow Kam to return to work, but with the restriction that she was not to use her right arm. It appears from the record that the trial court strongly considered this fact in determining that Kam continued to be temporarily partially disabled after she returned to work.
The court next found that Kam was temporarily partially disabled from July 17, 1998, through February 2, 1999, for a total of 285/7 weeks. July 17, 1998, was the first day that Kam was re-leased to return to work after her first surgery, and February 2, 1999, was the day before Kam's second surgery. The record shows that on July 16, 1998, Dr. Walsh wrote a release for Kam to return to work the next day in what he referred to as a "runner" position, without the use of her right arm. The trial court further found that
[w]ithin two months (by September 2, 1998) of her shoulder surgery, [Kam] was doing the finger meats job, even though Dr. Walsh had not released her to do so. It was this environment which was cold, and which was essentially restricted from [Kam's] release to return to work, as of September 24, 1998. As a result, prior to November 20, 1998, the only position suitable for [Kam] to work was the "runners [sic] position."
From November 20, 1998, through February 2, 1999, [Kam] remained temporarily partially disabled, with very significant lifting restrictions. . . . Prior to February 3, 1999, when [Kam] once again became temporarily totally disabled, [Kam] was never able to progress to working an 8 hour day.
Accordingly, the trial court found that Kam was temporarily partially disabled during this timeframe, due at least in part to her "extremely significant restrictions."
[5,6] Neb. Rev. Stat. § 48-121(2) (Reissue 1998) provides for compensation for those with "disability partial in character." The Nebraska Supreme Court has explained that
[a]n employee's disability as a basis for compensation under § 48-121(1) and (2) is determined by the employee's dimi-nution of employability or impairment of earning power or earning capacity and is not necessarily determined by a physician's evaluation and assessment of the employee's loss of bodily function. . . . Earning power, as used in § 48-121(2), is not synonymous with wages, but includes eligibility to procure employment generally, ability to hold a job obtained, and capacity to perform the tasks of the work, as well as the ability of the worker to earn wages in the employment in which he or she is engaged or for which he or she is fitted.
(Citation omitted.) Zavala v. ConAgra Beef Co., 265 Neb. 188, 199, 655 N.W.2d 692, 701 (2003).
IBP argues that the trial court erred by finding that Kam was temporarily partially disabled from March 3 through July 1, 1998, because "[t]here is no indication in the record that Kam worked anything less than fulltime during this period or that she received reduced wages." Brief for appellant at 8. However, the trial court did not make such a determination when finding that Kam was temporarily partially disabled at that time. The court noted that Kam was unable to use her right arm, and this restriction could be sufficient to diminish her earning capacity, as de-fined by our jurisprudence. Thus, as we are unable to say that the trial court was clearly wrong in its determination that Kam was temporarily partially disabled from March 3 through July 1, 1998, we affirm the review panel's affirmance of this portion of the trial court's decision.
IBP also alleges that the trial court erred in finding Kam to be temporarily partially disabled from July 17, 1998, through February 2, 1999. Again, the record is factually sufficient to indicate that Kam's earning power was diminished during this time, as a result of her physical restrictions. Thus, we are unable to say that the trial court was clearly wrong when it determined that Kam was temporarily partially disabled during the timeframe in question. Accordingly, we affirm the review panel's affirmance of the trial court's finding that Kam was temporarily partially disabled from July 17, 1998, through February 2, 1999.
Award of 100-Percent Loss of Earning Power.
[7] IBP next alleges that the trial court erred when it awarded Kam a 100-percent loss of earning power during her periods of temporary partial disability. As stated earlier:
Earning power, as used in § 48-121(2), is not synonymous with wages, but includes eligibility to procure employment generally, ability to hold a job obtained, and capacity to perform the tasks of the work, as well as the ability of the worker to earn wages in the employment in which he or she is engaged or for which he or she is fitted.
Zavala, 265 Neb. at 199, 655 N.W.2d at 701. Further, "[i]f an employee, after a work-related injury, receives wages equal to or greater than the wages received before the injury, the wages may be considered in the determination whether an employee has sustained an impairment of earning capacity." Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459, 471, 461 N.W.2d 565, 574 (1990).
The trial court found, in assessing the proper amount of Kam's loss of earning power:
It is this Court's determination, after reviewing all the evidence for the periods of time for which [Kam] was temporarily partially disabled, that pursuant to Cords v. City of Lincoln, 249 Neb. 748, 545 N.W.2d 112 (1996); and, Sidel v. Travelers Ins. Co., 205 Neb.541, 288 N.W.2d 482 (1980), [Kam] had a 100 percent loss of earning power. At the most, [Kam] had the physical ability to hold a part time, or odd lot position. This results in her entitlement to $246.39 per week for 46 weeks for temporary partial disability.
"A determination as to whether an injured worker has had a loss of earning power is a question of fact to be determined by the Workers' Compensation Court." Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 247, 639 N.W.2d 125, 136 (2002). Thus, we will not reverse the review panel's affirmance of the trial court's determination unless it is clearly wrong.
The trial court appears to determine based on Cords v. City of Lincoln, 249 Neb. 748, 545 N.W.2d 112 (1996), and Sidel v. Travelers Ins. Co., 205 Neb. 541, 288 N.W.2d 482 (1980), that Kam suffered a 100-percent loss of earning power. However, a closer reading of those two cases indicates that they do not re-quire, or even support, the result reached by the trial court. In Cords, the Nebraska Supreme Court affirmed a finding that a 60-year-old man who had been permanently disabled on the job and who had limited education and work experience had suffered a 10-percent loss of earning capacity. In Sidel, a 41-year-old man was permanently disabled while working; the Nebraska Supreme Court upheld an award from the Workers' Compensation Court finding that he had suffered a 20-percent loss of earning capacity. In contrast to the instant case, in both Sidel and Cords, the worker had suffered permanent disabilities. More importantly, in neither case did the Workers' Compensation Court find that the worker had suffered a 100-percent loss of earning power.
Recently, in Frauendorfer, supra, the Nebraska Supreme Court dealt with the issue of temporary partial disability. Much like Kam in the instant case, the worker in Frauendorfer worked fewer hours after his injury than he was able to prior to his injury; he also earned a reduced wage, unlike Kam. The Supreme Court "defined temporary disability as the period during which the em-ployee is submitting to treatment, is convalescing, is suffering from the injury, and is unable to work because of the accident." Id. at 245, 639 N.W.2d at 134-35. After noting that the worker was able to work fewer hours and earned a lower hourly wage after his injury than prior thereto, the Supreme Court affirmed the trial court's finding that the employee had a 30-percent temporary partial disability; the trial court made this finding in reliance on a report that the employee "would have a 30-percent loss of earning capacity if he were restricted to an 8-hour shift" with his em-ployer. Id. at 246, 639 N.W.2d at 135.
Kam suggests that the reasoning in Frauendorfer supports her contention that the trial court did not err when it found that she had lost 100 percent of her earning capacity. We do not believe this to be true. Unlike the trial court in Frauendorfer, the trial court in the instant case found that Kam, although working for a wage similar to what she earned preinjury, albeit for fewer hours, lost 100 percent of her earning capacity. Logic dictates that this is simply not possible. During all times that the trial court found Kam to be temporarily partially disabled, she continued to work at IBP. No evidence in the record indicates that she received a lower hourly wage after her injury than she did prior to her in-jury, although there is evidence that she was unable to work as many hours postinjury as she did preinjury.
[8] Kam also suggests that the instant case is similar to Schlup v. Auburn Needleworks, 239 Neb. 854, 479 N.W.2d 440 (1992). In Schlup, the Nebraska Supreme Court noted that "`[u]nder the odd-lot doctrine, which is accepted in virtually every jurisdiction, total disability may be found in the case of workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well-known branch of the labor market.'" 239 Neb. at 865, 479 N.W.2d at 448 (quoting 2 Arthur Larson, The Law of Workmen's Compensation § 57.51(a) (1989)). The Supreme Court found that "[a]lthough [the plaintiff] might be physically able to perform some of the requirements of the jobs listed by [the rehabilitation counselor], the compensation court could properly find that her lack of mental abilities, coupled with her physical limitations, did render her unemployable." Id. The difference between Schlup and the in-stant case is that the plaintiff in Schlup was totally and permanently disabled, whereas Kam's disability was temporary and partial. We find no cases applying the odd-lot doctrine to temporary disability, and we decline to so apply the doctrine in the instant case.
[9] We acknowledge that wages and earning capacity are not the same thing; however, we find as a matter of law that when dealing with temporary partial disability, one cannot be earning wages at a similar job with the same employer and at the same time have suffered a 100-percent loss of earning capacity. This seems even more clear when one considers the proposition that "[i]f an employee, after a work-related injury, receives wages equal to or greater than the wages received before the injury, the wages may be considered in the determination whether an em-ployee has sustained an impairment of earning capacity." Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459, 471, 461 N.W.2d 565, 574 (1990). Further, "partial disability" is defined as "[a] worker's inability to perform all the duties that he or she could do before an accident, even though the worker can still en-gage in some gainful activity on the job." Black's Law Dictionary 474 (7th ed. 1999). Reason does not allow one to reconcile a 100-percent loss of earning capacity with an ability to "engage in some gainful activity on the job," which ability Kam clearly had, since she kept working for IBP at the same hourly wage, albeit in a different position, as she had preinjury.
This is not to say that Kam did not suffer any loss of earning capacity. Rather, we hold that the Workers' Compensation Court erred when it found, in determining the amount of her benefits while she was temporarily partially disabled, that she had lost 100 percent of her earning capacity. Accordingly, we reverse the re-view panel's affirmance of the compensation court's decision on this issue and remand the cause for a correct award of temporary partial disability, which in this case is essentially a mathematical calculation of wages, earned by Kam while she was temporarily partially disabled, as a percentage of her preinjury earnings.
CONCLUSION
We find that the trial court was not clearly wrong when it found that Kam was temporarily partially disabled from March 3 through July 1, 1998, and from July 17, 1998, through February 2, 1999. Further, we find that the trial court erred when it found that Kam had a 100-percent loss of earning power during these periods of temporary partial disability. Thus, we affirm in part and in part reverse. The cause is remanded to the Workers' Compensation Court review panel for further remand to the trial court for a correct award of temporary partial disability.
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2586620/ | 226 P.3d 43 (2010)
347 Or. 608
STATE
v.
HILL.
No. (S057695).
Supreme Court of Oregon.
February 4, 2010.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590213/ | 270 S.W.3d 902 (2008)
Sharla COFFEY, James H. Simpson, and Glenn R. Coffey, Appellants,
v.
KEHOE ROCK AND STONE, LLC, Appellee.
No. 2007-CA-001695-DG.
Court of Appeals of Kentucky.
October 31, 2008.
*903 William H. Wilhoit, Grayson, KY, for appellants.
Michael A. Frye, Russell, KY, for amicus curiae, James E. Slaughter.
Phillip Bruce Leslie, Greenup, KY, for appellee.
Before CAPERTON, KELLER and NICKELL, Judges.
CAPERTON, Judge.
Sharla Coffey, James H. Simpson, and Glenn R. Coffey (collectively "the Coffeys") bring this appeal from a July 20, 2007, opinion of the Greenup Circuit Court, wherein the court reversed the decision rendered by the Greenup District Court. As the district court lacked subject matter jurisdiction, the judgment of the circuit court is hereby reversed and remanded with directions to vacate the judgment of the Greenup District Court.
The Coffeys entered into a lease about February 9, 2001, to have limestone mined from their property.[1] The lease was to commence immediately upon signing, continue for twelve (12) months, and thereafter monthly until the Lessee gave the Lessor thirty (30) days notice of its intent to terminate the lease. Kehoe Rock and Stone, LLC (Kehoe) started mining operations in 2004. In August 2006, the Coffeys informed Kehoe of their intention to terminate the lease within thirty (30) days. Kehoe refused to vacate the premises. A forcible detainer action was subsequently filed in the Greenup District Court by the Coffeys. The district court granted the forcible detainer action when it determined that the contract was an "at will" lease which gave both parties the right to terminate. Kehoe appealed to the circuit court
The circuit court reversed the district court as it disagreed with the interpretation of the lease agreement. The circuit court determined that the lease gave Kehoe a unilateral right to terminate based on the plain language in the contract and that an implied right to terminate giving rise to a forcible detainer action was in direct opposition to the contract language. It is from this reversal that the Coffeys appeal. This Court granted the Coffeys' motion for discretionary review.
The statute which confers jurisdiction on the district court in civil matters is contained in KRS 24A.120,[2] and interests in land are specifically excluded. As stated in Emmons v. Madden, 781 S.W.2d 529, 530 (Ky.App.1989),
[T]he district court did not have subject matter jurisdiction to resolve the dispute concerning possession of these properties. It is well settled in this Commonwealth *904 that a forcible detainer action is viable only where the relationship of the competing parties is that of landlord and tenant. "It has been repeatedly decided by this court that to maintain the writ of forcible detainer the relationship of landlord and tenant must exist in some form." Cuyler v. Estis, 23 K.L.R. 1063, 64 S.W. 673, 674 (1901). The summary procedure provided for in district court is designed to "restore to a landlord premises unlawfully detained by a mere tenant." Hall's Ex'rs v. Robinson, 291 Ky. 631, 165 S.W.2d 163 (1942).
Issues of "[s]ubject matter jurisdiction ... are different than other issues because they may be raised at any time, even by the court itself." Kentucky Employers Mutual Insurance v. Coleman, 236 S.W.3d 9, 15 (Ky.2007)(citing Commonwealth Health Corporation v. Croslin, 920 S.W.2d 46, 48 (Ky.1996)).
It has long been the law in Kentucky that a mineral lease does not result in the creation of a landlord-tenant relationship but instead is a grant of incorporeal interests within the land. Ellis v. Beech Creek Coal Co., 467 S.W.2d 132, 133 (Ky.1971). While Ellis concerned a lease of coal, we see no difference between the lease of limestone, as a mineral, and the lease of coal, as a mineral. Therefore, a lease of limestone does not create a landlord-tenant relationship but, as in Ellis, an incorporeal interest in land.
We hold that the district court was without subject matter jurisdiction to determine the issue as it concerned an incorporeal interest in land. Thus, the district court should have dismissed the action as the "parties may not by agreement, appearance, estoppel or otherwise confer subject matter jurisdiction upon the court." Day v. Day, 937 S.W.2d 717, 719-720 (Ky.1997).
Therefore, the judgment of the circuit court is hereby reversed and we remand to the circuit court with directions to vacate the judgment of the district court.
ALL CONCUR.
NOTES
[1] The original parties to the lease were the Coffeys and James Slaughter d/b/a American Bulk Services. Kehoe acquired the lease through multiple transfers of the sublease. Slaughter has instituted an action in the Greenup Circuit Court contesting the validity of these transfers.
[2] KRS 24A.120 provides that a: District Court shall have exclusive jurisdiction in:
"(1) Civil cases in which the amount in controversy does not exceed four thousand dollars ($4,000), exclusive of interest and costs, except matters affecting title to real estate ...." (emphasis supplied). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590241/ | 270 S.W.3d 919 (2008)
Bonita Ann BUCKLEY, Respondent,
v.
Charles James Gary TIPTON, Appellant.
No. WD 68856.
Missouri Court of Appeals, Western District.
December 9, 2008.
*920 Charles James Gary Tipton, Grants Pass, OR, Appellant pro se.
Michael R. Leamer, Chillicothe, MO, for Respondent.
Before THOMAS H. NEWTON, C.J., JAMES M. SMART, JR., and JAMES EDWARD WELSH, JJ.
*921 THOMAS H. NEWTON, Chief Judge.
Mr. Charles James Gary Tipton appeals from a judgment modifying child support obligations, visitation rights, and finding him in contempt for non-payment of child support and his share of his children's medical bills. Mr. Tipton's appellate brief does not comply with Rule 84.04.[1] Consequently, we dismiss the appeal.
Factual and Procedural Background
The facts that may be adduced from the record are as follows. Mr. Tipton and Ms. Bonita Ann Buckley are the parents of four children: Barbara, born in 1986; Alyssa, born in 1987; Catherine, born in 1992; and Charles, born in 1995. The parties' marriage was dissolved in Missouri in 2002. Legal and physical custody of the children was awarded jointly. Mr. Tipton was ordered to pay child support of $421 per month and one-half of the children's medical and dental expenses not covered by insurance.
In 2006, Ms. Buckley filed a motion to modify the dissolution decree. Ms. Buckley alleged Mr. Tipton's home was unsafe, that he failed to supervise the children, and that he did not provide adequate food and sleeping quarters when they visited him. She submitted a proposed parenting plan for the minor children that revised Mr. Tipton's visitation schedule to exclude overnight stays or visitation at his residence. Ms. Buckley also filed a motion for contempt based on Mr. Tipton's failure to pay child support and his half of the children's medical expenses. Mr. Tipton filed a countermotion to modify the dissolution decree. Mr. Tipton alleged that various assaults had been committed against the children in Ms. Buckley's home and that both Barbara and Alyssa were emancipated. He also filed a motion for contempt alleging Ms. Buckley had not allowed him to see the children since August of 2006.
The trial court held a hearing in August of 2007. Mr. Tipton had moved to Michigan[2] and did not attend. His attorney moved for a continuance and the motion was denied. Ms. Buckley testified that when the children had overnight visits with Mr. Tipton in Missouri, he did not provide food for them. The youngest child, Charles, has a disorder for which he needs regular medication, and Ms. Buckley testified that when in Mr. Tipton's care, Charles did not take his medication. Ms. Buckley provided photos of Mr. Tipton's house in Missouri showing accumulated mold and trash. She stated that there were no bedrooms for the children, that the house was heated only by a wood-burning stove, and that Catherine and Charles slept on the couch or on a mattress in the front room, along with Mr. Tipton, his mother, and other adults. Ms. Buckley provided evidence of medical bills for the children of $17,000, which Mr. Tipton had not helped to pay, and evidence that Mr. Tipton's child support payments were $4,300 in arrears. Ms. Buckley further testified that Mr. Tipton had not asked for visitation with the children since the prior year. Ms. Buckley also testified that Alyssa, the second oldest child, had been in college full-time since May of 2005.
The court found a substantial and continuous change in circumstances since the original decree. It adopted Ms. Buckley's parenting plan, ordered all visitation to take place in Missouri, and, based on Ms. Buckley's Form 14,[3] ordered child support *922 of $554 per month, retroactive to the date of service of Ms. Buckley's motion. It further found Mr. Tipton in contempt and ordered payment of the child support arrearages, Mr. Tipton's half of the children's medical expenses, and awarded Ms. Buckley her attorney's fees of $1,500. Barbara, the oldest child, was held to be emancipated. Mr. Tipton appeals pro se; Ms. Buckley did not file a respondent's brief.
Standard of Review
Custody and child support decisions are reviewed under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). See In re McIntire, 33 S.W.3d 565, 568 (Mo. App. W.D.2000). We affirm unless there is no substantial evidence to support the decision, the judgment is against the weight of the evidence, or the court erroneously declared or applied the law. Id. The trial court is given great deference when determining the best interests of a child. Roach v. Hart, 249 S.W.3d 224, 226 (Mo.App. W.D.2008). Custody determinations are given more deference than in any other type of case. In re McIntire, 33 S.W.3d at 568. The decision to award a modification of child support is within the trial court's discretion. Moran v. Mason, 236 S.W.3d 137, 140 (Mo.App. S.D.2007). We reverse a modification of support only for abuse of discretion or the erroneous application of law. Id.
Legal Analysis
A pro se litigant is bound by the same procedural rules as a litigant represented by counsel. Id. at 139. While we are not unsympathetic to the difficulties encountered by a party appearing pro se, fairness to all requires compliance with the rules. State v. Hardin, 229 S.W.3d 211, 215 (Mo.App. W.D.2007). Rule 84.04 sets forth the requirements for briefing an appeal. The purpose of this rule is to clarify the facts, issues, and arguments on appealfor both the opposing party and the court. See Wilson v. Carnahan, 25 S.W.3d 664, 666 (Mo.App. W.D.2000). Adherence to the rule is required so that we do not waste judicial resources, unfairly advocate for a party, or speculate on a party's unclear arguments, thus "`interpret[ing] the appellant's contention differently than the appellant intended or his opponent understood.'" Moran, 236 S.W.3d at 141-42 (quoting Franklin v. Ventura, 32 S.W.3d 801, 803 (Mo.App. W.D.2000)). Whether we dismiss for a failure to comply with Rule 84.04 is discretionary; we generally will not dismiss unless the deficiencies impede our ability to decide on the merits of the case. Id. at 139-40. In cases relating to children's welfare, we may relax the rigid requirements if we can sufficiently ascertain the issues being raised. In the Interest of Holland, 203 S.W.3d 295, 299 (Mo.App. S.D.2006).
Notwithstanding our preference to reach the merits of a case, Mr. Tipton's brief is in such substantial noncompliance with Rule 84.04 that we cannot ascertain his arguments or legal grounds for challenging the trial court's decision. The brief fails to comply with Rule 84.04's most basic requirements for a statement of facts, points relied on, and arguments. The only thing clearly evident in Mr. Tipton's brief is that he does not agree with the trial court's decision.
Rule 84.04(c) requires that a statement of facts "shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument." The purpose of the requirement is to provide an accurate, complete, and unbiased understanding of the facts involved. *923 Kuenz v. Walker, 244 S.W.3d 191, 193 (Mo.App. E.D.2007). Mr. Tipton's purported statement of facts is indecipherable; it begins and ends in argument and leaves us unenlightened as to the issues in the case. It states, in part:
In this case, the case that deceptively turns an about-face, By Miss Buckley and her lawyer after hearing I wouldn't be in court. That my attorney would represent me.... This seems to be so misleading, to show error one way or another to warrant vacated and brought back to trial out of that counties venue, but still in the state the kids reside, hopefully in Kansas City Court. The lack of due process, the camera, pretrial court, and the misleading lawyers has a horrible detrimental course now for my kids and me.
Rule 84.04(d) requires an appellant to identify the precise manner in which the trial court erred and to provide legal support for the claimed points of error. Similar to the statement of facts, Mr. Tipton's "points relied on" section leaves us confused. His first point maintains in part:
POINTS RELIED ON POINT 1.
For the non custodial parents, maintaining the parent-child relationship requires protected visitation rights. The importance of this concept was emphasized in Franz v. United States 707 f2d 582, 601 (D.C.Cir.1983), When the court held that the parentchild relationship is a "liberty interest" constitutionally protected by the Fourteenth Amendment.... Although it has been held that grandparents do not have an actual right to visitations of (Brooks v. Parkinson, 265 Ga. 189, 454 S.E.2d 769 (1995) (concluding that a statute regarding "grandparental visitation" violated the federal and state constitutions)), this section plainly declared the public policy of this state.
Mr. Tipton's second point asserts the following in part:
POINTS TO RELY ON POINT 2.
This case as in the re marriage of Dunn (2002), Cal.App. 4th [No. G028497. Fourth Dist., Div. Three. Oct 30, 2002.] In re Marriage of NANCY K. and TIMOTHY J. DUNN. And also as in the remarriage of Hall (2000) 81 Cal. App. 4th 313, 319-320, "My case which is so similar to these two cases has followed into the all too-common pattern in family law of lawyers disappearing into a judge's chamber and emerging with a judge's order, of independent of any hearing or settlement." Although in my case there was a hearing, I was informed it was settled in court on abatement and agreement the house inspectors opinions after inspecting the house, found the house livable and the two lawyers had agreed on the house inspector not having to be called as a witness because he found the house not condemned in any means and very livable. * The judge order's a judgment of substantial change of circumstances, altogether doesn't give fact or reason in the proceeding for finding a substantial change of circumstances exists.... "What about the manifest best interest of the children "Miss Buckley and her lawyer draws up a visitation order So heinous obliterating all these wonderful years of being able to have ordinary visitation with my children, that she makes it to where the kids don't really need there dad!, Not allowing an expert witness to testify, or explain what's happening in the last court hearing so defendant would have been ready for different aspects of the case. I prey *924 for this error for the kids! To allow a man to be accused of all the lies, To never have a chance to answer, to allow accuser to hide behind and accuse another honest hard working soul to relieve herself of guilt? Deny visitation and receive monies is in total error in itself.
It appears that Mr. Tipton might be claiming that he was denied due process or, perhaps, that there was insufficient evidence for the trial court's finding of a change of circumstances. At other portions, it appears Mr. Tipton's complaint is with Ms. Buckley's actions or with the statutes designed to protect children's welfare. See Gerlach v. Adair, 211 S.W.3d 663, 669 (Mo.App. W.D.2007) (both parents have a statutory duty to support their children irrespective of the relationship with the child; the purpose of child support is to provide for the children). We cannot decide the merits where we cannot identify Mr. Tipton's contentions, nor can we "sift through the record to divine what precisely is being argued on appeal." Holland, 203 S.W.3d at 300.
Mr. Tipton's argument section is similarly deficient. See Rule 84.04(d)-(e). That section of his brief states in pertinent part:
ARGUMENT
Statements in the case the development of the pictures of the house we all lived in for a year or more!, the lack of pre evidentiary procedure to give warnings of pictures to be submitted not by an expert witness but by my own cousin at intermittent times while visiting us as a guest can be construed as a terrible court error or error by my disbarred attorney....
In a case ordering termination of the fathers rights to his two children is reversed; where there is no evidence where the father couldn't improve. FLORIDAS 3rd DISTRICT COURT OF APPEALS family law per curium E.R.V. DEPT OF CHILDRENS FAMILY SERVICES 09/13/06 3d05-2606 without my testimony at the time of these new allegations that I know are not true! ... All allegations are Unjust and unsubstantiated. I Wouldn't want to be perjuring myself and making something untrue, believable at the sake of hurting others. I argue the judge in the case gave very little opinion or very little if any factual statement on facts or relevancy to find specifically for contempt for the reasons in this case, Allowed an unfair change of course, by plaintiff and her attorney, for not allowing expert testimony without any reason!
Further, Mr. Tipton's legal citations are largely irrelevant. They refer to termination of parental rights, or custody denials, not changes to visitation, and he does not cite to Missouri law. He argues facts not raised in the trial court and he does not cite to the record as required by Rule 84.04(i). Mr. Tipton has also included an appendix with additional arguments, further complicating our review. For example, in this latter section he appears to contend that his daughter Alyssa should be required to pay a third of the cost of her medical bills.
Finally, Mr. Tipton appears to be arguing in the brief's conclusion for a right to present evidence. He states: "Wouldn't it be just that evidence can be presented fairly from both parties? That defendants can come to trial with the knowledge of what's really going on?" We note that the trial court retains jurisdiction over further modification as long as the requirements of section 452.450[4] or section 454.867 are satisfied.
*925 Conclusion
A failure to substantially comply with Rule 84.04 preserves nothing for appellate review. Holland, 203 S.W.3d at 299. Accordingly, Mr. Tipton's appeal is dismissed.
JAMES M. SMART, JR., and JAMES E. WELSH, JJ., concur.
NOTES
[1] Rule references are to Missouri Rules of Civil Procedure 2007.
[2] When Mr. Tipton filed his appellate brief, he provided an address in the State of Oregon.
[3] See Foraker v. Foraker, 133 S.W.3d 84, 95 (Mo.App. W.D.2004) (explaining the nature of a Form 14).
[4] All statutory references are to RSMo 2000. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590388/ | 972 So. 2d 440 (2007)
Darryl BOUDREAUX
v.
SIMONEAUD GROCERY & MARKET, INC.
No. 07-511.
Court of Appeal of Louisiana, Third Circuit.
December 19, 2007.
Morris M. Haik, Jr., New Iberia, LA, for Defendant/Appellee, Simoneaud Grocery & Market, Inc.
D. Brennan Stockstill, New Iberia, LA, for Plaintiff/Appellant, Darryl Boudreaux.
Court composed of JIMMIE C. PETERS, MARC T. AMY, MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
SULLIVAN, Judge.
The plaintiff, Darryl Boudreaux, appeals the dismissal of his suit, arguing that the trial court erred in finding it was abandoned under La.Code Civ.P. art. 561. For the following reasons, we reverse.
Factual and Procedural Background
The plaintiff filed the petition in this matter on December 10, 2002, alleging that he had incurred medical expenses as the result of an automobile accident. He asserted that he had medical benefits coverage through his wife's employer, Simoneaud Grocery & Market, Inc. (Simoneaud), and that coverage for his medical expenses had been denied. The plaintiff *441 sought payment of his past medical expenses and damages, including an award for past and future anguish/emotional distress, as well as penalties "pursuant to La.R.S. 22:657, et seq."
On September 7, 2006, Simoneaud filed a motion and order to dismiss, arguing that "no steps have been taken in the prosecution or defense of this matter for a period in excess of three (3) years, and therefore all claims in this matter as against all parties, including any incidental demands, should be dismissed as abandoned pursuant to La.C.C.P. Art. 561[.]" The trial court signed the order of dismissal. Thereafter, the plaintiff filed a motion seeking to set aside the order of dismissal, asserting that he had forwarded discovery requests in August 2003 and February 2006 that interrupted the three-year abandonment period. The trial court signed an order setting aside the dismissal and reinstated the suit.[1]
Simoneaud responded to the reinstatement with a motion and order for reconsideration of the September 26, 2006 ruling. In opposition, the plaintiff again argued that the requests for discovery interrupted the abandonment period and, for the first time, asserted that Simoneaud had paid his medical expenses, thus waiving its right to assert that he had abandoned his suit. Following a hearing, the trial court dismissed the plaintiff's suit with prejudice.
The plaintiff appeals the dismissal, designating the following as error:
1. The tr[ia]l court manifestly erred and abused its discretion by not considering the extrinsic evidence of the defense's tender (the check and accompanying correspondence for payment of medical bills) in ruling in favor of defense's Motion for Abandonment.
2. The trial court manifestly erred and abused its discretion by not considering and ruling the unconditional tender constituted either a step in defense of this action or a waiver of the right to have the suit declared abandoned and therefore dismissed.
3. The trial court manifestly erred and abused its discretion by not considering and ruling that re-mailing previously propounded discovery which has been served on all parties effectively re-propounds the discovery and shall be deemed to be a step in the prosecution of an action.
4. The trial court manifestly erred and abused its discretion by signing a Judgment dismissing the suit with prejudice when the prescriptive period for a contractual obligation (LSA-R.S.22:658) is ten (10) years.
Discussion
Abandonment is controlled by La.Code Civ.P. art. 561, which provides, in pertinent part:
A. (1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:
. . . .
(2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall *442 enter a formal order of dismissal as of the date of its abandonment. . . .
. . . .
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.
As explained in Clark v. State Farm Mutual Automobile Insurance Co., 00-3010 (La.5/15/01), 785 So. 2d 779, a party's right to assert abandonment may be waived. In Clark, the plaintiff, who was injured in a car accident, settled his claim against the insurer of the driver of the other vehicle for policy limits. He filed suit on January 16, 1996 against his UM insurer, State Farm, to recover the remainder of his damages. The plaintiff withheld service of the petition but forwarded State Farm copies of the petition and his medical records. On October 14, 1996, State Farm forwarded a $3,000.00 check to the plaintiff along with correspondence stating that this was an unconditional tender. Neither party took other action until June 15, 1999, when the plaintiff filed a copy of the tendered check and correspondence into the record and requested that State Farm be served with a copy of the petition. On August 2, 1999, State Farm sought to have the suit dismissed as abandoned. The trial court found that the unconditional tender was a step in the defense of the case, which interrupted the abandonment period and caused it to run anew. On State Farm's application for supervisory writs, the court of appeal reversed.
After granting certiorari, the supreme court analyzed whether a party's actions must be on the record to constitute "steps" in the prosecution or defense of the suit. The supreme court explained:
The rule requiring that a party's action be on the record is designed to protect a defendant. The rule is intended to ensure notice to the defendant of actions taken that interrupt abandonment. The purpose underlying the rule is not present when, as here, it is the defendant taking action and doing so in defense of plaintiff's suit to avoid penalties and attorney's fees. Based on this rationale, we concluded earlier in this opinion that the remark in Melancon [v. Continental Casualty Co., 307 So. 2d 308 (La.1975)] precluding the consideration of conduct not on the record in determining if defendant's conduct constituted a waiver was mistaken. Repeating, we conclude that to the extent a defendant's conduct would amount to a waiver as an acknowledgment if taken after the abandonment period has elapsed, such pre-abandonment acknowledgment can also be established by evidence outside the record to be a waiver, which serves to recommence the abandonment period running anew.
If the defendant's conduct in this case was simply informal settlement negotiations, as defendant contends and the court of appeal concluded, then the waiver exception would not apply, and the general rule requiring formal action would apply. This case, however, presents an entirely different factual scenario: an unconditional tender.
An unconditional tender is made to a plaintiff "not in settlement of the case, but to show [the insurer's] good faith in the matter and to comply with the duties imposed upon them under their contract of insurance with the insured." McDill v. Utica Mutual Insurance Co., 475 So. 2d 1085, 1091-92 (La.1985). A tender made to satisfy the requirements of La. Rev.Stat. 22:658(A)(1) must be unconditional, i.e., with "no strings attached," *443 and thus, by definition, cannot be a settlement offer. The court of appeal's characterization of the tender as part of informal negotiations was thus erroneous.
Clark, 785 So.2d at 790-91 (footnote omitted). Thus, the supreme court determined that State Farm's pre-abandonment unconditional tender, although made outside of the record, was an acknowledgment and thus within the waiver exception, which resulted in interruption of the abandonment and a recommencement of the abandonment period from the date of the tender. Id. In so ruling, the supreme court noted that the result reached was "consistent with the policy considerations underlying abandonment that require any doubt be construed in favor of maintaining a plaintiff's action." Id. at 793.
Relying on Clark, the plaintiff asserts that Simoneaud acknowledged liability by issuing two checks to his medical providers in September 2003, thereby waiving its right to assert abandonment.
The checks, which were entered into evidence by the plaintiff at the hearing on Simoneaud's motion for reconsideration, were made payable directly to two of the plaintiff's health care providers. The checks were accompanied by correspondence from Simoneaud's counsel in this matter, along with detailed billing statements from the health care providers. Both of the checks were written for the full amounts due the health care providers, and both contained notations that they were being paid for services rendered to Darryl Boudreaux, Sr.
Clearly, Simoneaud was seeking to avoid liability to the plaintiff for penalties under La.R.S. 22:657 when it paid the full amounts due his health care providers for services rendered to him as a result of the subject automobile accident. Moreover, the payments were sent directly to the health care providers rather than to the plaintiff or his attorney, and no argument has been made that the payments would serve to satisfy his claims against Simoneaud. Indeed, the plaintiff was not given the opportunity to accept or reject the payments made on his behalf. We conclude that the payments by Simoneaud were made unconditionally and thus constituted tacit acknowledgments of the plaintiff's claim sufficient to waive its right to assert that he had abandoned his action. (Cf. Mallett v. McNeal, 05-2289, 05-2322 (La.10/17/06), 939 So. 2d 1254, where the supreme court held that a liability insurer's issuance of two checks in payment of insured's property damage before suit was filed constituted an acknowledgment sufficient to interrupt prescription thereby making plaintiff's suit timely even though it was filed more than one year after the date of the accident).[2]
Having so found, we need not determine whether the trial court erred in its finding that the re-mailing of previously propounded discovery by counsel for plaintiff amounted to a step in the prosecution of this action. Moreover, because we have determined that the trial court erred in dismissing the plaintiff's suit, we likewise need not determine whether the dismissal should have been with or without prejudice.
DECREE
For the foregoing reasons, the judgment of the trial court is reversed, and the plaintiff's suit is reinstated. All costs of *444 this appeal are assessed against the defendant, Simoneaud Grocery & Market, Inc.
REVERSED.
NOTES
[1] It appears that the initial order of dismissal, as well as the subsequent order setting aside that dismissal, was signed by a judge other than the one to which the case was allotted upon filing.
[2] While we recognize that Mallett dealt with La.R.S. 22:658 rather than La.R.S. 22:657, which is at issue herein, we nonetheless find the supreme court's analysis pertinent to the issue before us. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592082/ | 19 So. 3d 485 (2009)
Nathaniel MASSI
v.
Blane ROME, Sr.
No. 08-CA-1281.
Court of Appeal of Louisiana, Fifth Circuit.
June 23, 2009.
Robert R. Faucheux, Jr., Attorney at Law, LaPlace, Louisiana, for Plaintiff/Appellant.
Leandre M. Millet, Attorney at Law, LaPlace, Louisiana, for Defendant/Appellee.
Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and JEROME M. WINSBERG, Pro Tempore.
WALTER J. ROTHSCHILD, Judge.
This is an appeal from a judgment of the trial court granting the exception of prescription brought by defendant and dismissing a portion of plaintiffs claims. Because we find that the judgment is a non-appealable partial judgment, we hereby dismiss this appeal and remand the case to the trial court for further proceedings.
On May 1, 2008, plaintiff Nathaniel Massi filed the present petition for damages against Blane Rome, Sr., alleging that on January 25, 2001 Rome obtained a permit to build a garage on his residential property in LaPlace, Louisiana. Plaintiff alleges that the location of the garage is not zoned for commercial use, but that Rome unlawfully uses the garage to operate a boat repair business whereby he fixes, repairs and stores boats for customers. Plaintiff alleges that the permit was obtained fraudulently, and that the defendant should be prohibited from operating a business on the property.
In addition, plaintiff alleges the following:
Plaintiff resides in close proximity to defendant's property and the acts of defendant are a nuisance to the plaintiff, have caused plaintiff to suffer sleep loss, and have interfered with plaintiffs right to peaceable possession.
* * *
Plaintiff also avers that defendant should be made to pay damages in an amount determined by this Court for defendant's nuisance and interruption of *486 plaintiffs peaceable possession as well as defendant's loss of sleep.
In response to the petition, defendant brought a peremptory exception of prescription on the basis of La. R.S. 9:5625 which provides a prescriptive period for all actions based upon the violation of a zoning or building restriction commencing from the first act constituting commission of the violation.[1] As plaintiffs petition alleged that the activity began in 2001, defendant argued that his petition filed in 2008 has prescribed.
Plaintiff answered the exception and stated that the cause of action asserted in his petition is not based upon the violation of zoning ordinances, but rather is based on intentional and continuing tort law. As such, plaintiff argues that La. R.S. 9:5625 is not applicable to his tort claims and that his claims have not prescribed.
Following a hearing, the trial court rendered judgment granting defendant's exception of prescription "as to any of plaintiffs claims based upon alleged violations of zoning ordinances." The judgment further provided that "[a]ny claim based upon violation of a zoning ordinance is hereby dismissed with prejudice."
In its oral reasons for judgment, the trial court noted that the only matter for his consideration was a "prescriptive-related exception under Title 9." The court further stated that the entire suit was not dismissed, but that the judgment dismissed all Title 9 violations. As such, the trial court found that the allegations of plaintiffs petition with regard to zoning or building restrictions had prescribed, but that plaintiffs allegations in tort were not included in this judgment.
By this appeal, Massi contends that the trial court erred in relying on La. R.S. 9:5625 to determine the prescriptive date in this matter. Massi argues that the wrongful acts of the defendant are actionable in tort and are continuing and recurring. Thus, he contends the prescriptive period has not yet begun to run.
La C.C.P. art.2083, as amended in 2005, provides in pertinent part:
A. A final judgment is appealable in all causes in which appeals are given by law. . .
* * *
C. An interlocutory judgment is appealable only when expressly provided by law.
La. C.C.P. art. 1915 B provides that:
B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment *487 shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.
The trial court's judgment in this case granted the exception of prescription and dismissed plaintiffs claims based upon violation of zoning ordinances. However, the judgment does not adjudicate all the claims between the parties, and the trial court specifically failed to consider plaintiffs claims of nuisance and interruption of peaceable possession. The sole defendant was not dismissed from the action. The judgment is therefore a partial judgment.
Although La. C.C.P. art. 1915(A) provides that a partial judgment in some instances may be a final judgment even if it does not grant the successful party all of the relief prayed for or adjudicate all of the issues in the case, none of the specified instances are applicable in this case. Further, there is no designation in the record that the judgment would be final for the purposes of appeal or that there was not just reason for delay as required by La. C.C.P. art. 1915(B)(1).
In the absence of a such a designation, such a judgment "shall not constitute a final judgment for the purpose of an immediate appeal." La. C.C.P. art. 1915(B)(2). Thus, since the judgment is not a final judgment under La. C.C.P. art. 1915(A) and has not been properly designated as a final judgment under La. C.C.P. art. 1915(B), it is not a final appealable judgment. Pontchartrain Tavern, Inc. v. Johnson, 07-115, p. 5, (La.App. 5 Cir. 8/28/07), 966 So. 2d 1062, 1064; O'Connor v. Nelson, 05-125, p. 4 (La.App. 5 Cir. 7/26/05), 910 So. 2d 441, 443; Eiswirth v. Anthony L. Golemi Contractor, Inc., 02-1060, p. 3 (La.App. 5 Cir. 1/28/03), 839 So. 2d 346, 348.
Accordingly, we find we have no jurisdiction to consider this matter. The appeal is therefore dismissed, and the matter is remanded to the trial court for complete disposition of the claims between the parties.
APPEAL DISMISSED
NOTES
[1] Although defendant argued the prescriptive period was two years from the first act constituting the commission of the violation, the law as applied to this claim contains a five year prescriptive period. The prescriptive period contained in La. R.S. 9:5625(A) was amended by Acts 1997, No. 491, § 1 and now provides as follows:
A. (1) All actions civil or criminal, created by statute, ordinance, or otherwise, except those actions created for the purpose of amortization of nonconforming signs and billboards enacted in conformity with the provisions of R.S. 33:4722, which may be brought by parishes, municipalities, or their instrumentalities or by any person, firm, or corporation to require enforcement of and compliance with any zoning restriction, building restriction, or subdivision regulation, imposed by any parish, municipality, or an instrumentality thereof, and based upon the violation by any person, firm, or corporation of such restriction or regulation, must be brought within five years from the first act constituting the commission of the violation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1260191/ | 208 Kan. 605 (1972)
493 P.2d 590
HELEN POWERS, Appellant,
v.
STATE DEPARTMENT OF SOCIAL WELFARE OF KANSAS, Appellee and Cross-Appellant.
No. 46,205
Supreme Court of Kansas.
Opinion filed January 22, 1972.
Thomas DeCoursey, of Kansas City, argued the cause, and was on the brief for the appellant.
*606 Woody D. Smith, attorney for the State Department of Social Welfare, argued the cause, and was on the brief for the appellee and cross-appellant.
The opinion of the court was delivered by
PRAGER, J.:
This is an appeal from a decision of the Wyandotte County Board of Social Welfare denying welfare benefits to the appellant, Helen Powers, under the Aid to the Disabled Program. Welfare benefits were denied because of appellant's refusal to submit to a medical examination as required by the regulations of the State Department of Social Welfare. Appellant is a member of the Wyandotte County Tabernacle Holiness Church and her religious beliefs do not permit her to submit to a medical examination. On September 12, 1969, appellant applied to the Wyandotte County Board of Social Welfare for assistance in the form of Aid to the Disabled. Her application was denied because she refused to take the medical examination required. Applicant then requested a fair hearing before an appeals committee of the State Department of Social Welfare. The reasons stated for the appeal were in substance that nothing in the Social Security Act required her to take a medical examination and, if so, the requirement of a medical examination constituted a violation of her First Amendment right to freedom of religion. Pursuant to K.S.A. 75-3306 and department regulations J.J.B. Wigglesworth was appointed as referee to conduct the hearing. Mr. Wigglesworth was a member of the legal staff of the State Department of Social Welfare. On December 10, 1969, a hearing was held in Wyandotte County on the appeal with Wigglesworth serving as referee. At this hearing there was non-medical testimony presented to the effect that Mrs. Powers had physical disabilities consisting of deafness, limited capacity to use her hands, failing eye sight, arthritis in her back, and varicose veins. To substantiate her physical condition appellant offered only the testimony of herself and her two sons, Joe and Jordan, and that of her minister, Rev. Henry Utter, of the Wyandotte County Holiness Church. In addition Mrs. Mary L. Burton, the caseworker assigned to appellant's case, testified that Mrs. Powers was ineligible for Aid to the Disabled because she refused to take the medical examination required by the regulations of the State Department of Social Welfare. Mrs. Burton testified that to her knowledge the only reason Mrs. Powers did not submit to the medical examination was because of her religious beliefs. There was no medical testimony presented since Mrs. Powers had refused *607 to submit to a medical examination. On January 22, 1970, the referee, Wigglesworth, made his recommendation to the appeals committee. He recommended that the appeals committee make a finding that there was insufficient evidence to conclude that either the applicant was disabled or that she was not disabled. He pointed out in his recommendation that without a medical examination he could not determine the extent of appellant's health problems or whether singularly or together they would constitute disability as defined in the regulations of the State Department of Social Welfare and applicable statutes. On January 27, 1970, by a memorandum decision the State Appeals Committee affirmed the decision of the Wyandotte County Board of Social Welfare denying Aid to the Disabled benefits to the applicant. The basis of its decision was the failure of appellant to submit to a medical examination as required by the regulations of the State Department. On February 3, 1970, appellant appealed the decision of the Appeals Committee to the District Court of Wyandotte County pursuant to K.S.A. 60-2101. On February 9, 1970, the appellee State Department moved to dismiss the appeal claiming that the Wyandotte County District Court did not have jurisdiction over the matter. The basis for the motion was that the order appealed from was an administrative order rather than a judicial or a quasi-judicial order and therefore an appeal could not be taken under K.S.A. 60-2101. The question of the venue of the appeal was not presented in this motion. On February 18, 1970, the appellant moved to have J.J.B. Wigglesworth disqualified as attorney representing the State Department of Social Welfare in the district court on the grounds that he had previously acted as referee during the fair hearing. On March 10, 1970, the district court overruled the motion to dismiss holding that under K.S.A. 60-2101 the appellant had the right to appeal to the district court. The motion of appellant to disqualify Mr. Wigglesworth as attorney for the State Department was denied and he continued to represent the State Department of Social Welfare in all further proceedings in district court.
On March 12, 1970, the appellee State Board filed an answer in which among other defenses it contended that the venue of the appeal was improper for the reason that K.S.A. 60-2101 (a) requires a hearing in "the county in which such judgment or order was entered" and that county is Shawnee County rather than *608 Wyandotte County, Kansas. On May 6, 1970, a hearing was held before the District Court of Wyandotte County at which time appellee orally moved to dismiss the case on the ground of improper venue. This motion was overruled. The appeal was then presented to the court on the record and the appeal was taken under advisement. On June 3, 1970, the district court entered judgment affirming the ruling of the Appeals Committee of the State Department of Social Welfare and denied relief to the appellant. Appellant filed a motion for a new trial which was overruled. A timely appeal was then taken to this court. The State Department of Social Welfare also filed a cross-appeal raising the jurisdictional questions previously presented to the trial court and overruled.
Since the cross-appeal filed by the State Department of Social Welfare raises jurisdictional issues it is appropriate to consider those points first. The points raised by the appellee and cross-appellant are as follows:
(1) The district court erred by finding that the appeals committee of the State Board of Social Welfare exercises judicial or quasi-judicial functions within the meaning of K.S.A. 60-2101 (a) holding thereby that the district court has jurisdiction for an appeal from the appeals committee.
(2) The court erred in finding that the venue for such an appeal was in Wyandotte County rather than in Shawnee County.
K.S.A. 60-2101 (a) provides that a judgment rendered or final order made by a court or any other tribunal, board or officer exercising judicial or quasi-judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated or modified by the district court. The issue to be determined under this point is whether or not the State Appeals Committee of the State Department of Social Welfare in denying welfare benefits is exercising judicial or quasi-judicial functions. If so, an appeal may be taken to the district court; if not, the district court has no jurisdiction under K.S.A. 60-2101 (a) to take an appeal from that tribunal. The test to be applied in determining whether an administrative agency performs a judicial or quasi-judicial function is set forth in Gawith v. Gage's Plumbing & Heating Co., Inc., 206 Kan. 169, 476 P.2d 966. In the Gawith case it is stated that a judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist, whereas legislation looks to the future and changes existing conditions by making a new rule to be applied thereafter. It is clear that in the present case the order of the State Appeals Committee *609 denying Aid to Disabled benefits was quasi-judicial within the meaning of K.S.A. 60-2101 (a). The State Appeals Committee is required by K.S.A. 75-3306 and by the regulations of the State Department of Social Welfare, K.A.R. 30-7-17 and K.A.R. 30-7-19, to receive and weigh evidence, to apply existing statutes and regulations and to make a determination of the applicant's right to receive welfare benefits. In the instant case the State Appeals Committee further determined that the appellant's rights, both statutory and constitutional, had not been violated by the requirement that she submit to a medical examination since the State Appeals Committee rejected appellant's contentions by denying her disability benefits. These actions taken by the State Appeals Committee in affording a fair hearing to an applicant for welfare benefits clearly constitute the exercise of judicial or quasi-judicial functions within the meaning of K.S.A. 60-2101 (a). Hence the decision of the district court holding that it had jurisdiction to take this appeal from the Appeals Committee pursuant to K.S.A. 60-2101 (a) was entirely correct.
The trial court did not err in finding that the venue for the appeal was in Wyandotte County rather than Shawnee County. In the first place K.S.A. 60-610 provides that objection to the venue of an action shall not be allowed except on timely motion made and for grounds established before trial of the action is commenced on the merits. In this case the appellee, State Board, filed its answer setting forth the defense that the venue of the appeal was improper for the reason that any appeal should have been brought in Shawnee County rather than Wyandotte County. K.S.A. 60-212 (b) provides in substance that every defense in law or fact to a claim for relief in any pleading shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
"(1) Lack of jurisdiction over the subject matter;
"(2) lack of jurisdiction over the person;
"(3) improper venue; ..."
It is further provided in K.S.A. 60-212 (b) that a motion making any of these defenses shall be made before pleading if a further pleading is permitted. On the face of it it would appear that there is a conflict between the provisions of K.S.A. 60-212 (b) which permits every defense to be included in an answer and the provisions of K.S.A. 60-610 which states clearly that objection to the venue shall not be allowed except on timely motion made and for grounds *610 established before trial on the action is commenced on the merits. In order to reconcile these statutory provisions it would seem reasonable to construe them to permit a party to set up the defense of improper venue in his answer or other responsive pleading but also to require him to file a timely motion and to establish his grounds therefore before the commencement of the trial on the merits. The rule of statutory construction is that a specific provision controls over a general provision incidentally covering the same subject matter. (Harris v. Shanahan, 192 Kan. 629, 390 P.2d 772.) In this case the appellee State Department of Social Welfare set up the defense of improper venue in its answer but failed to present a timely motion to the district court before the case came on to be heard on the merits. Here the objection to the venue should not be allowed since appellee failed to comply with the provisions of K.S.A. 60-610. However in any event the trial court ruled properly in holding that the venue of this case was in Wyandotte County and not Shawnee County.
It should be noted that K.S.A. 60-2101 (a) provides in substance that an appeal brought thereunder is perfected by filing a notice of appeal with the administrative tribunal and then causing copies of the proceedings to be "filed with the clerk of the district court of the county in which such judgment or order was entered." [Emphasis supplied.]
Here Wyandotte County was the proper venue for the appeal from the decision of the State Appeals Committee since Wyandotte County was the county in which the judgment or order appealed from was entered. Under the regulations of the State Department of Social Welfare the county board is required to maintain one or more intake offices where applications for welfare assistance may be made, (K.A.R. 30-3-1 and K.A.R. 30-3-3). It is the responsibility of the county board of social welfare to receive such applications for assistance, to investigate them, and to determine eligibility or ineligibility of the applicant within 30 days of the application date. (K.A.R. 30-3-5.) The county board makes the initial decision either approving or denying welfare benefits. (K.A.R. 30-3-17.) The county board is required by statute to keep records on applications for public assistance (K.S.A. 39-713 [d]) and to maintain files containing information about each individual case (K.S.A. 39-713 [g]). K.S.A. 75-3306 provides that an applicant who has been denied welfare benefits has an absolute right *611 to appeal to an appeals committee designated by the State Board of Social Welfare. The State Department of Social Welfare has adopted K.A.R. 30-7-14 requiring that all state hearings shall be held in the county in which the appellant resides unless other special arrangements are necessary. The regulations of the State Department do not declare where the Appeals Committee shall meet or arrive at is decision. It should also be noted that after making its decision the Appeals Committee is required to prepare a written opinion stating its decision and the facts, rules, law, and reasons upon which it is based. Copies of the decision must be delivered to the appellant and to the county board. The county department must act upon the decision and recommendation of the Appeals Committee within 30 days after the decision has been rendered. Until the decision of the Appeals Committee has been received and filed with the county welfare department there could be no "entry of judgment" within the meaning of K.S.A. 60-2101. K.S.A. 60-258 (b) provides that if the form of the judgment is to be settled by a journal entry or other document it should be filed with the clerk and such filing should constitute the "entry of judgment" and it shall not be effective before such filing. It is, of course, important to determine when judgment has been entered since an appeal must be taken from an administrative agency exercising quasi-judicial functions within 30 days of its entry. Under the statutes cited and the regulations of the State Department of Social Welfare it seems clear that there can be no "entry of judgment" until the decision of the Appeals Committee has been filed with the county welfare department. Hence the venue for this appeal is properly in Wyandotte County where appellant resides, where the application for welfare benefits was originally filed and denied by the Wyandotte County Welfare Department, where the hearing on appeal was held and where the State Appeals Committee was required to file its decision. It follows that the district court was correct in this case in holding that the venue for this appeal was in Wyandotte County rather than in Shawnee County, Kansas.
It having been determined that the district court had jurisdiction to act in this case we can now turn to the contentions of appellant on this appeal. The appeal relies upon four points:
(1) The Social Security Act, 42 U.S.C., Chapter 7, exempts an applicant for Aid to the Disabled benefits from taking a medical examination when the applicant objects thereto for religious reasons.
*612 (2) The trial court erred in its interpretation of the First Amendment to the Constitution of the United States which prevents any state from making any law affecting the free exercise of religion.
(3) The trial court erred in its interpretation of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States in that the decision has the effect of discriminating between applicants for various types of public assistance on solely religious grounds.
(4) The trial court erred in overruling the appellant's Motion to Disqualify the Attorney of Record for the Defendant because such action denied appellant due process as required by the Fourteenth Amendment.
Appellant's first point requires an interpretation of certain sections of 42 U.S.C., Chapter 7. Chapter 7 is divided into 19 subchapters which cover the various federal welfare programs. Included within Chapter 7 are two sections which specifically exempt an applicant for certain designated welfare benefits from taking a medical examination when the applicant objects thereto for religious reasons. The two sections are 42 U.S.C. § 1396f and 42 U.S.C. § 715 which are nearly identical in phraseology and which provide as follows:
"Nothing in this subchapter shall be construed to require any State which has a plan approved under this subchapter to compel any person to undergo any medical screening, examination, diagnosis, or treatment or to accept any other health care or services provided under such plan for any purpose (other than for the purpose of discovering and preventing the spread of infection or contagious disease or for the purpose of protecting environmental health), if such person objects (or, in case such person is a child, his parent or guardian objects) thereto on religious grounds."
Both of these sections were added to the Social Security Act in January 1968. Section 715 is included in Subchapter V which is concerned with only Maternal and Child Care Health and Crippled Children Services. Section 1396f is found in Subchapter XIX which is concerned exclusively with Grants to States for Medical Assistance Programs. There are no other subchapters in Chapter 7 of 42 U.S.C. which exempt applicants from taking a medical examination where they object thereto on religious grounds. In this case the appellant made application for welfare benefits under Subchapter XIV which is concerned exclusively with Grants to States for Aid to the Disabled. It should be noted that the wording of 42 U.S.C. § 1396f and 42 U.S.C. § 715 specifically restricts their application to the subchapter in which each is placed. If Congress had intended these provisions to apply to all of the programs included under Chapter 7 it would have been a simple matter to include in Chapter 7 a general provision exempting all applicants *613 for welfare benefits of any type from undergoing medical examinations where objection was made on religious grounds. Congress could also have placed a similar exemption in Subchapter XIV if it had intended the exemption to apply to applicants for Aid to the Disabled benefits. This the Congress failed to do. We have concluded that appellant's first point is without merit and that an applicant for Aid to the Disabled benefits under Subchapter XIV of the Social Security Act, 42 U.S.C., Chapter 7, is not by statute exempted from taking a medical examination when the applicant objects thereto for religious reasons.
The appellant as her second point contends in substance that the requirement of a medical examination as a condition of eligibility for receiving Aid to the Disabled benefits violates the appellant's freedom of religion as guaranteed by the First Amendment to the Constitution of the United States and as applied to the State of Kansas through the due process clause of the Fourteenth Amendment. It is clear from the record in this case that the appellant's refusal to submit to a medical examination was based upon her religious beliefs as a member of the Wyandotte County Tabernacle Holiness Church. Under the provisions of K.S.A. 1971 Supp. 39-708 and K.S.A. 75-3304 the State Board of Social Welfare is granted the power to determine the general policies relating to all forms of social welfare and to make appropriate rules and regulations pertaining thereto. Pursuant to this statutory authority the State Board has adopted rules and regulations setting forth requirements of eligibility for welfare assistance under the various welfare programs. As applied to the Aid to the Disabled program, the State Board has adopted regulations which in substance provide that in order for an applicant to be eligible for Aid to the Disabled benefits the applicant must be found to be permanently and totally disabled by the State Appeals Committee on the basis of medical and social findings submitted by the county welfare department. This requirement of eligibility is set forth in Kansas Public Assistance Manual, Section 1123.121. The stated purpose of requiring the medical examination is so that medical evidence may be available to determine whether or not the applicant has a permanent and total disability which would make the applicant eligible for Aid to the Disabled benefits. In the Kansas Public Assistance Manual, Section 1123.12, a requirement is made that medical evidence must show that a physical, mental or emotional *614 impairment of major importance exists; that the impairing condition is one that is not likely to improve because the condition is not apt to respond to any known therapeutic procedures or because treatment that might lead to improvement is unavailable and unadvisable; the etiology of the impairing condition if it can be determined; and the extent to which the impairment curtails normal activity such as mobility, walking, lifting, use of senses, ability to learn, ability to act purposely, etc.
One of the precepts of Mrs. Power's religion is that faith in God will cure an impairment of any physical disability. Starting with this statement as a premise appellant argues that to compel her to undergo a medical examination as a condition to receiving Aid to the Disabled benefits constitutes a violation of her First Amendment guarantee of freedom of religion. We, of course, accept the principle that every individual has a right to worship according to the dictates of his own conscience. The Fourteenth Amendment safeguards religious liberty from state interference. The cases, however, make a distinction between religious beliefs and religious practices. Freedom to believe is absolute but freedom to act is not absolute but limited and qualified. (State v. Garber, 197 Kan. 567, 419 P.2d 896, cert. den. 389 U.S. 51, 19 L. Ed. 2d 50, 88 S. Ct. 236.) A State acting through the police power may reasonably limit the free exercise of religion for the protection of society. Where the exercise of legislative power comes into conflict with the freedom of religion, the validity of legislation will depend upon the balance of the factors affecting the public interest. The individual cannot be permitted on religious grounds to be the sole judge of his duty to obey laws enacted in the public interest. (State v. Garber, supra.) Each case involving an alleged invasion of the constitutional right of freedom of religion must be determined on its individual facts. Stated in another way a state in providing services for its people may provide them on a condition which is contrary to the religious scruples of some; but the condition imposed must be reasonable and must be justified by some compelling state interest. (Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790.)
The real issue presented under this point is whether the regulation of the State Board of Social Welfare requiring a medical examination as a condition for receiving welfare disability benefits is reasonable and is justified by some compelling state interest. In *615 this case we are, of course, faced with the problem of accommodating between the rights of the state acting through the police power and the right of the appellant to her religious freedom as guaranteed by the constitution.
There is no contention presented here that the State Department of Social Welfare does not have the power to establish rules and regulations to govern eligibility for Aid to the Disabled and to prescribe appropriate procedures for eligibility to be determined. The requirement of a medical examination for applicants seeking Aid to the Disabled is in substance simply a procedural rule of evidence which prescribes a method of proof to establish a determination of fact in a quasi-judicial hearing. The issue of fact to be determined is whether or not the applicant is permanently and totally disabled within the meaning of the applicable statutes. The important state interest which is involved in this situation is described clearly and unequivocally by Justice Blackmun in Wyman v. James, 400 U.S. 309, 27 L. Ed. 2d 408, 91 S. Ct. 381:
"The agency, with tax funds provided from federal as well as from state sources, is fulfilling a public trust. The State, working through its qualified welfare agency, has appropriate and paramount interest and concern in seeing and assuring that the intended and proper objects of that tax-produced assistance are the ones who benefit from the aid it dispenses. Surely it is not unreasonable, in the Fourth Amendment sense or in any other sense of that term, that the State have at its command a gentle means, of limited extent and of practical and considerate application, of achieving that assurance.
"One who dispenses purely private charity naturally has an interest in and expects to know how his charitable funds are utilized and put to work. The public, when it is the provider, rightly expects the same. It might well expect more, because of the trust aspect of public funds, and the recipient, as well as the caseworker, has not only an interest but an obligation." (pp. 318, 319.)
In Wyman v. James, supra, the Supreme Court of the United States held that the right to gain entry to and inspect a home of an applicant for welfare assistance is a reasonable requirement and does not violate Fourth Amendment rights under the United States Constitution.
The cases today generally recognize that where there is an adversary proceeding involving the physical or mental condition of a claimant a requirement of a medical examination as a basis for proof of disability does not offend constitutional liberties. For example Rule 35 of the Federal Rule of Procedure grants to the Federal Courts the power to order a party to submit to a physical or mental examination by a physician in any action in which the mental or *616 physical condition of a party is in controversy. K.S.A. 60-235 gives similar powers to the trial courts of Kansas. Such statutory provisions are quite common throughout the United States. The constitutional validity of such procedural rules has been attacked at various times since these rules have been adopted. They are generally upheld on the theory that the invasion of the person involved in a physical examination is outweighed by the need for such examinations in the interest of truth and justice. The United States Supreme Court has held Rule 35 constitutional and not in violation of any substantive constitutional right. (Sibbach v. Wilson & Co., 312 U.S. 1, 61 S. Ct. 422, 85 L. Ed. 479; Schlagenhauf v. Holder, 379 U.S. 104, 85 S. Ct. 234, 13 L. Ed. 2d 152.)
Statutory provisions requiring a medical examination for persons claiming physical or mental disabilities are likewise quite common throughout the United States in the area of workmen's compensation. In Kansas K.S.A. 1971 Supp. 44-515 requires a claimant for workmen's compensation to submit to a medical examination. If the injured employee refuses to submit to a medical examination, then his right to workmen's compensation is suspended until he does so. (K.S.A. 44-518.) Likewise provisions in various types of insurance policies which require a medical examination in order for insurance benefits to be collected have been consistently upheld in the face of constitutional objections. See for example the annotation in 5 A.L.R. 3d 929, where many cases are cited. When we consider all of these cases it would seem to follow by analogy that a medical examination may be reasonably required of an applicant for welfare disability benefits as a condition precedent for him to become eligible for such benefits. Under the rules and regulations of the State Department of Social Welfare the applicant for Aid to the Disabled benefits is entitled to a medical examination by a doctor of his choice if he so desires. Another factor important to note is that an applicant for Aid to the Disabled benefits cannot be compelled to submit to a medical examination. Here the choice is entirely the appellant's; she is fully within her rights to refuse to undergo a medical examination but in asserting this right she will be denied welfare benefits. We hold that the requirement of a medical examination as a condition of eligibility for receiving Aid to the Disabled benefits does not violate appellant's freedom of religion.
Appellant's third point is that the requirement of a medical *617 examination for an applicant for Aid to the Disabled benefits under Title XIV and the exemption from a similar medical examination for applicants for medical care under Title XIX and applicants for Maternal or Child Health or Crippled Children's Services under Title V constitutes a violation of the equal protection clause under the Fourteenth Amendment to the United States Constitution. The contention here of course, is that this constitutes an invidious discrimination as between applicants for different types of welfare benefits. It is, of course, within the police power of the state to establish classifications when a real, logical and substantial basis exists for the classification. (Pinkerton v. Schwiethale, 208 Kan. 596, 493 P.2d 200.
The equal protection of the law clause does not restrain the normal exercise of governmental power but only abuse in the exertion of such authority. That clause is not offended against simply because as the result of the exercise of the power to classify some inequality may be occasioned. (Martin v. Davis, 187 Kan. 473, 357 P.2d 782, appeal dism. 368 U.S. 25, 7 L. Ed. 2d 5, 82 S. Ct. 1, reh. den. 368 U.S. 945, 7 L. Ed. 2d 341, 82 S. Ct 376; Louisville & Nashville R.R. v. Melton, 218 U.S. 36, 54 L. Ed. 921, 30 S. Ct. 676.) The issue to be determined here is whether or not there is a reasonable basis for applying different rules of eligibility to applicants for different types of welfare benefits. We have no hesitancy in holding that the Medical Assistance program under Title XIX and the Maternal and Child Health program under Title V are sufficiently different in nature and scope from the Aid to the Disabled program under Chapter XIV to justify different requirements of eligibility and different procedures to establish the same. In the first place the medical assistance and child and health programs are not concerned with disability or inability to engage in gainful employment. They are concerned solely with medical treatment and maternal and child health. Benefits under these programs are obtainable even though an applicant is not permanently and totally disabled and even though an applicant may be able to derive some income from his own endeavors. On the other hand the Aid to the Disabled program is concerned exclusively with the applicant's permanent and total disability, both at the time the original application is made and at subsequent points in time when the state of his physical and mental health is required to be periodically reviewed. It is clear that the ultimate purpose and scope of each program *618 sufficiently differs from the others to justify different eligibility requirements and procedures to establish the same. We therefore conclude that the appellant has not been denied equal protection of the law under the Fourteenth Amendment to the Constitution of the United States.
In her fourth point the appellant contends that the district court erred in refusing to disqualify J.J.B. Wigglesworth as attorney for the State Department of Social Welfare in all proceedings in the district court. Appellant's position is that she has been denied due process of law under the Fourteenth Amendment to the Constitution of the United States because Mr. Wigglesworth served as the referee at the fair hearing before the State Appeals Committee and he therefore should have been disqualified as attorney for the appellee in the proceedings before the district court. The appellant takes the position that a referee is a quasi-judicial officer who is appointed to exercise judicial powers by taking testimony, hearing evidence, and reporting his findings. It is further contended that the administrative hearing is quasi-judicial in nature and that the constitutional guaranty of due process of law applies to such proceedings. (Neeley v. Board of Trustees, Policemen's & Firemen's Retirement System, 205 Kan. 780, 473 P.2d 72.) One essential element of due process of law is that the hearing officer or referee be impartial. (Long Beach Fed. S. & L. Ass'n v. Federal Home Loan Bk. Bd., 189 F. Supp. 589.) Appellant points out that under the Canon 36 of the Canons of Professional Ethics a lawyer should not accept employment as an advocate in any matter upon the merits which he has previously acted in a judicial capacity. A similar provision is contained in the Code of Professional Responsibility adopted by this court on February 11, 1970, effective July 1, 1970. The specific provision applicable is Canon 9, DR 9-101(A) (205 Kan. XCI).
It is undisputed here that Mr. Wigglesworth served as referee at the "fair hearing" conducted on December 10, 1970. At that time he heard the testimony of the witnesses and made recommendation to the Appeals Committee. His specific recommendation was as follows: "There is insufficient evidence to conclude either that appellant is disabled or that she is not disabled". This exact recommendation was adopted by the State Appeals Committee by its memorandum decision dated January 27, 1970. Subsequently Mr. Wigglesworth served as attorney for the State Department of Social Welfare in the proceedings before the *619 District Court of Wyandotte County, Kansas. We have no hesitancy whatsoever in holding that it was highly improper for the State Department of Social Welfare to assign Mr. Wigglesworth to serve in the capacity of its attorney after he had previously served in the same matter as referee. Under the regulations of the State Department of Social Welfare the referee is selected by the State Board to conduct its hearings. (K.A.R. 30-1-1 (145).) The regulations invest in the referee a number of powers which are clearly judicial in nature. A referee has the right to approve persons who may attend the hearing and issue subpoenas. (K.A.R. 30-7-16.) Under K.A.R. 30-7-17 the referee is required to advise the parties of the procedure to be followed, to make a preliminary statement of the issues, to receive evidence reasonably related to the issues involved, to establish the competence of witnesses, to adjourn the hearing, and to conclude the hearing when he is satisfied that all pertinent information bearing upon the appeal has been introduced and examined. The referee also is required to make recommendations to the State Appeals Committee. These powers are, for all practical purposes, the same as those granted masters under K.S.A. 60-253. These powers are those customarily performed by judicial officers and it cannot be seriously maintained that Mr. Wigglesworth, as the referee who conducted the fair hearing, was not a judicial officer and acting as such. Were there issues of fact involved on this appeal grave issues of due process of law may well have justified a reversal of this case and a new trial. Mr. Wigglesworth clearly should have been disqualified to serve as attorney for the appellee in the district court. His appearance as an advocate was clearly in conflict with his former quasi-judicial position. The issues presented in this case, however, are pure issues of law and not issues of fact. It is undisputed in the record that Mrs. Powers refused to undergo a medical examination in accordance with the regulations of the State Board of Social Welfare. The validity of such a regulation is strictly a question of law. Hence the impropriety of Mr. Wigglesworth's serving both as a referee and as an advocate should not affect our decision in this case. We emphasize however that the State Board of Social Welfare was clearly guilty of an impropriety in assigning Mr. Wigglesworth to represent it in a case in district court in which he had previously served as referee. (O'Carroll v. Civil Aeronautics Board, 144 F.2d 993.) The *620 court wishes to make it clear that it is not questioning the integrity or the fairness of Mr. Wigglesworth or the manner in which he handled the hearing provided to appellant by the appellee. We only wish to emphasize that decisions of an Appeals Committee of the State Department of Social Welfare should not be tainted by the appearance of partiality. Procedures should be established by the State Department to protect the creditability of the fair hearings provided applicants for welfare in this state. We wish to make it clear that in the future a procedure which permits a referee or quasi-judicial officer to represent a party in subsequent proceedings in the same case will not be sanctioned by this court.
For the reasons set forth above we find no reversible error in the record. The issues to be determined below were exclusively questions of law and we find that they were properly determined by the learned trial judge. It follows that the judgment is affirmed.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/533992/ | 892 F.2d 79
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.Robert L. MASON, Plaintiff-Appellant,v.Will Tom WATHEN, Circuit Court Judge, Webster Co., Ky;Tommy Chandler, Commonwealth Attorney, Webster Co., Ky;Lontte Dunning Phelps; Connie Townsend, Circuit CourtClerk, Webster Co., Ky (in their individual and officialcapacities); County of Webster, Kentucky, Defendants-Appellees.
No. 89-5366.
United States Court of Appeals, Sixth Circuit.
Dec. 18, 1989.
Before KEITH and KENNEDY, Circuit Judges, and JOHN W. PECK, Senior Circuit Judge.
ORDER
1
This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
Robert L. Mason, a pro se Kentucky prisoner, appeals the district court's order dismissing his civil rights action filed pursuant to 42 U.S.C. § 1983.
3
Seeking monetary, injunctive, and declaratory relief, Mason sued appellees alleging that they had joined a conspiracy to fraudulently alter the recordings of testimony and the transcript of his trial, on charges of kidnapping, in violation of his constitutional rights. After a somewhat lengthy procedural history, the district court granted summary judgment for appellees, finding that Mason had failed to state a claim upon which relief could be granted because his claims were barred by the applicable statute of limitations. Mason has filed a timely appeal, challenging the dismissal of his case.
4
Upon review, we conclude that the district court's judgment must be vacated and the case remanded for further consideration because the district court erred in concluding that the applicable statute of limitations bars Mason's claim.
5
Concluding that Mason's § 1983 claims accrued in August of 1983, see Sevier v. Turner, 742 F.2d 262, 272 (6th Cir.1984), the district court applied Kentucky's one-year personal injury statute of limitations to Mason's claims, see Ky.Rev.Stat.Ann. § 413.140(1)(a) (Michie/Bobbs-Merrill 1972); McSurely v. Hutchison, 823 F.2d 1002, 1005-06 (6th Cir.1987), cert. denied, 108 S.Ct. 1107 (1988), and found Mason's claims to be barred since the complaint was not filed until February 1985, more than eighteen months after the claims accrued.
6
However, in reaching its decision, the district court failed to consider the effect of Ky.Rev.Stat.Ann. § 413.310, which tolls the applicable statute of limitations period, regardless of when the claim accrues, if a plaintiff is confined in a Kentucky state penitentiary. See Ky.Rev.Stat.Ann. § 413.310 (Michie/Bobbs-Merrill 1972); Cunningham v. Jones, 567 F.2d 653, 654 n. 2 (6th Cir.1977). There is evidence of record which shows that by February 1983, Mason was already housed in the Kentucky State Reformatory and that he continued to be an inmate there in February 1985 when he filed his complaint. Consequently, we conclude that Mason's confinement in a state penitentiary tolled the applicable statute of limitations period for § 1983 actions under Kentucky law.
7
Accordingly, the judgment of the district court is hereby vacated and the case remanded for further proceedings. Rule 9(b)(6), Rules of the Sixth Circuit. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/534086/ | 892 F.2d 84
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Eduardo Espinosa ELENES, Defendant-Appellant.
No. 89-30008.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 1, 1989.Decided Dec. 12, 1989.
Before EUGENE A. WRIGHT, TANG and FERNANDEZ, Circuit Judges.
1
MEMORANDUM*
2
We consider a claim of outrageous government conduct and an alleged failure by the district court to make findings at sentencing as required by Fed.R.Crim.P. 32(c)(3)(D).
BACKGROUND
3
Eduardo Espinosa Elenes and five others were arrested following a six-month FBI undercover investigation into large-scale cocaine dealing in the Portland area. A grand jury returned a 24 count indictment charging them with narcotic offenses.
4
After jury selection and opening arguments and, prior to the government calling witnesses, Elenes entered into a plea agreement with the government, which provided that he would be sentenced under pre-guideline law. The presentence report, however, was prepared as though the sentencing guidelines applied.
5
Elenes' counsel objected to the report, indicating for the first time that the FBI had engaged in outrageous conduct. At the sentencing hearing, Judge Redden stated that he was sentencing under pre-guideline law, and imposed a 20-year term and a $50 penalty.
6
Elenes appeals the entry of his plea and the court's sentence. We have jurisdiction under 28 U.S.C. § 1291.
DISCUSSION
I. Outrageous Government Conduct
7
Elenes argues that the FBI engaged in outrageous conduct by purchasing cocaine from him seven times before arresting him. We need not reach the merits of this claim because he waived it on appeal.
8
He has waived the claim for two reasons. First, he failed to raise it properly in the district court. Generally, an issue not presented to the trial court may not be raised for the first time on appeal. United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir.1983), cert. denied, 465 U.S. 1100 (1984). Exceptions to this rule have been found where (1) a new theory or issue arises while an appeal is pending; (2) the issue conceded or neglected below is purely one of law and does not affect or rely on the factual record developed by the parties; or (3) plain error has occurred and injustice might otherwise result. Id. at 1012.
9
Elenes first raised this constitutional argument after his plea, in his objections to the presentence report. He made no motion, the government had no opportunity to respond to the argument, and the court was never asked to rule on it. In addition, he does not argue in his briefs for the application of the exceptions, and none appears to apply.
10
Second, a guilty plea erases claims of constitutional violation antedating the plea. United States v. Montilla, 870 F.2d 549, 552 (9th Cir.1989) (citing Tollett v. Henderson, 411 U.S. 258, 267 (1973)). As an exception to this rule, the Supreme Court has held that a meritorious claim of prosecutorial vindictiveness amounting to a due process violation survived a guilty plea, because the claim "went to the very power of the State to bring the defendant into court...." Blackledge v. Perry, 417 U.S. 21, 30 (1974); see also Menna v. New York, 423 U.S. 61, 62 (1975) (per curiam) (extending Blackledge to a double jeopardy claim).
11
The Court recently clarified the Blackledge/Menna doctrine in United States v. Broce, 109 S.Ct. 757 (1989). It limited it to cases in which the judge could determine at the time of accepting the plea, from the face of the indictment or from the record, that the government lacked the power to bring the indictment. Id. at 765; Montilla, 870 F.2d at 552.
12
In this case, the Blackledge/Menna exception does not apply. The indictment gives no indication on its face that the government engaged in outrageous conduct. Moreover, establishing the truth of Elenes' allegations would have required further evidentiary proceedings. See Montilla, 870 F.2d at 553.
13
Elenes waived his claim of outrageous government conduct.
II. Application of Rule 32(c)(3)(D)
14
Elenes argues that the court failed to apply Fed.R.Crim.P. 32(c)(3)(D), which reads:
15
If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons.
16
Strict compliance with Rule 32(c)(3)(D) is required and failure to comply will result in remand. United States v. Sharon, 812 F.2d 1233, 1234 (9th Cir.1987). The rule is designed to "help reduce unnecessary appeals based on the parties' misunderstanding of the record." United States v. Ibarra, 737 F.2d 825, 828 (9th Cir.1984).
17
The probation officer recommended in the presentence report that Elenes' sentence be enhanced because of his role as a "manager or supervisor" and his use of a firearm in the drug transactions. In responding to the report, Elenes objected to the factual basis for those recommendations. Although the court stated that it would take into account the culpability of Elenes and whether weapons were used during the commission of the offense in passing sentence, Judge Redden made no explicit findings on these issues. He failed to comply with Rule 32(c)(3)(D), and remand for resentencing is required.1 See United States v. Pettito, 767 F.2d 607, 610 (9th Cir.1985).
18
When Elenes is resentenced, the district court may rely on a presentence report prepared using the sentencing guidelines, if it imposes sentence under pre-guideline law in accordance with the plea agreement. See United States v. Twomey, 845 F.2d 1132, 1135 (1st Cir.1988); United States v. Vega, 860 F.2d 779, 800-01 (7th Cir.1988); United States v. Burgess, 858 F.2d 1512, 1514 (11th Cir.1988).
19
AFFIRMED IN PART and REMANDED IN PART. We VACATE sua sponte the $50 penalty assessment. See Shah v. United States, 878 F.2d 1156, 1163 (9th Cir.), cert. denied, 110 S.Ct. 195 (1989); United States v. Munoz-Flores, 863 F.2d 654 (9th Cir.1988), cert. granted, 110 S.Ct. 48 (1989).
*
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
1
Elenes also objected to the recommendation in the presentence report that his sentence not be reduced for "acceptance of responsibility." The court stated that it would not take this factor into account when passing sentence. No findings or determinations were required on this issue under Rule 32(c)(3)(D) because a sentence reduction for "acceptance of responsibility" was not available under pre-guideline law | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1590272/ | 972 So. 2d 191 (2008)
JACKSON
v.
BENGAL MOTOR CO., LTD.
No. 3D07-926.
District Court of Appeal of Florida, Third District.
December 12, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590279/ | 14 So. 3d 1041 (2009)
STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILIES, Appellant,
v.
In the Interest of C.W., Appellee.
No. 1D09-0025.
District Court of Appeal of Florida, First District.
May 22, 2009.
*1042 Lori Lee Fehr, Department of Children and Families, Pensacola, for Appellant.
Scott W. Tatum of Northwest Florida Legal Services, Pensacola; and Annette M. Lizardo, GAL Appellate Counsel, Statewide Guardian Ad Litem Office, Orlando, for Appellee.
VAN NORTWICK, J.
The Florida Department of Children and Families (DCF) appeals the trial court's order denying a petition to terminate the parental rights of T.R. to her child, C.W. This is the second appearance of this case in our court. In the first appeal, this court felt constrained to reverse the order denying termination of parental rights because "we read the order under review as stating that the trial court based its finding that termination of parental rights was not in C.W.'s best interests solely on the availability of a relative placement, in direct contravention of section 39.801(1)." Guardian Ad Litem Program v. T.R., 987 So. 2d 1269, 1271 (Fla. 1st DCA 2008). We remanded to the trial court, directing the court to "again weigh all relevant factors, including those under section 39.810, to determine whether termination of parental rights is in the manifest best interests of C.W." Id. Following an evidentiary hearing, the trial court entered a detailed order applying the facts of this *1043 case to the factors enumerated in section 39.810(1) and again concluded that termination of T.R.'s parental rights was not in C.W.'s best interests. Finding that the trial court's order is based on competent substantial evidence, we affirm.
C.W. was placed with his maternal grandmother after his sibling was admitted to the hospital suffering from grievous injuries and it was discovered that C.W. had endured three fractured ribs that had never been treated. C.W.'s stepfather is currently serving a prison term for aggravated child abuse. C.W. has visitation with his mother, T.R.
In the order under review, the trial court found that there existed adequate grounds to terminate T.R.'s parental rights "based upon egregious abuse of [C.W.'s younger sibling], and upon evidence that [C.W.], while still very young, suffered broken ribs while in the sole care of the mother and stepfather, for which [C.W.] received no treatment or medical attention." Nonetheless, the court concluded, after considering the factors enumerated in section 39.810, that "it is not in the manifest best interest of this child to have parental rights terminated and be placed for adoption."
The court found that C.W. has a strong bond with his grandmother, with whom he has lived for more than half of his young life, and that she has provided him a stable and satisfactory environment. The court noted the position of the guardian ad litem "that maintaining [C.W.] in his grandmother's custody is in his best interest, provided the grandmother does not return him to his mother" and "concur[red] in that analysis." The record reflects that the grandmother testified unequivocally that she would never let anyone harm her grandson and would make sure he was protected. The trial court found that adoption by the grandmother is not a viable alternative because the maternal grandfather is currently on probation for felony drug charges, which would likely disqualify the grandparents' household as a prospective adoptive household. The trial court rejected the concept that adoption by a third party would be preferable because of the "significant and deep relationship between the child and [his grandmother]." Reviewing the options available in section 39.621(2),[1] the court determined that the goal of the case plan should be changed to placement with a fit and willing relative.
On appeal, DCF contends that the trial court has violated the law of the case. We disagree. That doctrine "requires that questions of law actually decided on appeal must govern the case in the same court and trial court, through all subsequent proceedings." Fla. Dep't of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla.2001). However, the doctrine is "limited to rulings on questions of law actually presented and considered on a former appeal." (Emphasis supplied). Id. at 106 (quoting United States Concrete Pipe v. Bould, 437 So. 2d 1061, 1063 (Fla.1983)). In this case, the trial court dutifully followed the directions of this court in Guardian Ad Litem Program v. T.R., and did not disobey or disregard any of the rulings of law made by this court. DCF *1044 simply disagrees with the ruling of the trial court, which is not a sufficient basis to warrant reversal.
We find that the trial court's order is based on competent substantial evidence in the record and that there is no basis upon which this court should reverse. See Fla. Dep't of Children and Family Servs. v. A.Q., 937 So. 2d 1156, 1158 (Fla. 3d DCA 2006). Our standard of review of the trial court's order is "highly deferential." N.L. v. Dep't of Children and Family Servs., 843 So. 2d 996, 999 (Fla. 1st DCA 2003).
AFFIRMED.
KAHN, and WOLF, JJ., concur.
NOTES
[1] (2) The permanency goals available under this chapter, listed in order of preference, are:
(a) Reunification;
(b) Adoption, if a petition for termination of parental rights has been or will be filed;
(c) Permanent guardianship of a dependent child under s. 39.6221;
(d) Permanent placement with a fit and willing relative under s. 39.6231; or
(e) Placement in another planned permanent living arrangement under s. 39.6241. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590298/ | 14 So. 3d 205 (2007)
HENRY CLAY SMITH
v.
STATE.
No. CR-06-1611.
Court of Criminal Appeals of Alabama.
September 28, 2007.
Decision of the Alabama Court of Criminal Appeals without opinion Rehearing denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590339/ | 972 So. 2d 326 (2008)
Hunter HARRIS III
v.
Elizabeth STOGNER, et al.
No. 2007-CC-1451.
Supreme Court of Louisiana.
January 11, 2008.
Rehearing denied.
CALOGERO, C.J., would grant rehearing and assigns reasons.
JOHNSON, J., would grant rehearing.
CALOGERO, Chief Justice, Granting Rehearing.
I would grant the application for rehearing filed by plaintiff, Hunter Harris III, in order to consider whether the 2007 amendment to La.Code Civ. Proc. art. 561(B) applies to this case. The amendment extended the abandonment period from three years to five years in cases where a party can prove that the failure to take a step in the prosecution or defense of the action "was caused by or was the direct result of Hurricane Katrina or Rita." As amended, La.Code Civ. Proc. art. 561(A)(2) now provides as follows:
(2) If a party whose action is declared or claimed to be abandoned proves that the failure to take a step in the prosecution or defense in the trial court or the failure to take any step in the prosecution or disposition of an appeal was caused by or was a direct result of Hurricane Katrina or Rita, an action originally initiated by the filing of a pleading *327 prior to August 26, 2005, which has not previously been abandoned in accordance with the provisions of Subparagraph (1) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years.
On original hearing, this court did not consider whether the amendment applies to plaintiff's case. Further, neither the district court nor the court of appeal considered that issue, as the amendments did not become effective until July 9, 2007, after the district court had denied the defendant's motion to dismiss as abandoned and the court of appeal had denied writs on that issue. Nevertheless, the district court specifically found that plaintiff's failure to take a step in the prosecution of his suit within three years of the last action in the case on December 20, 2002, was caused by "circumstances beyond his control." Further, the court of appeal expressly opined that "Hurricane Katrina was beyond everyone's control."
In my view, the fact that the 2007 amendments to La.Code Civ. Proc. art. 561 did not become effective until July 9, 2007, does not necessarily mean that the Louisiana Legislature did not intend for it to apply to this case and to other similar cases in which the regular three-year abandonment period would have expired between August 25, 2005, and July 9, 2007, when the amendment because effective. In fact, the amendment states specifically that it applies to "an action originally initiated by he filing of a pleading prior to August 26, 2005, which has not previously been abandoned." From a practical and logical point of view, the word "previously" in the above-quoted phrase must have been intended by the Legislature to refer to actions not abandoned prior to August 26, 2005. No other interpretation of the amendment is reasonable.
I believe interpreting the 2007 amendment to La. C.C.P. art. 561 to apply only to those cases that become abandoned after the effective day of July 9, 2007, would essentially cancel the exact benefits the amendment was adopted to address. If the amendments do not apply until July 9, 2007, none of the cases pending at the time of Hurricanes Katrina and Rita that would have been abandoned between August 25, 2005, and July 9, 2007, would be given the benefits of the amendment. And, I would suggest that the cases that would otherwise be abandoned during that period are the exact cases the amendment was designed to address since they are the only cases in which the party seeking avoid a finding of abandonment would likely be able to prove that his failure to prosecute or defend within the three-year period "was caused by or was a direct result of" either Hurricane Katrina or Hurricane Rita. As everyone involved in the legal community knows, it was only during those days and months immediately following the storms that legal activity in the State of Louisiana was stymied by the various circumstances caused by the storm.
In fact, it is difficult to envision any circumstance in which a party to a legal action could prove that a failure to prosecute or defend an action after July 9, 2007, somehow "was caused by or was a direct result of" either Hurricane Katrina or Rita. Although there were surely many lingering effects of Hurricane Katrina and Rita in south Louisiana on July 9, 2007, and following, the State's legal system had almost fully recovered as much as a year prior to that date. Perhaps there were still situations in which individual attorneys were still in the process of recovering and therefore may have been unable to perform their regular functions, but the courts had certainly reopened and much of the legal business was proceeding as usual. *328 Seen in that light, the Legislature could not have intended to provide extra time for a plaintiff to take a step in the prosecution of his action only in those cases that would have been abandoned after July 9, 2007, when such an extension was in most cases at least no longer necessary. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590322/ | 686 N.W.2d 853 (2004)
Allan G. CEDERBERG, Appellant,
v.
CITY OF INVER GROVE HEIGHTS, Respondent.
No. A04-214.
Court of Appeals of Minnesota.
September 21, 2004.
*854 Allan G. Cederberg, Inver Grove Heights, MN, pro se appellant.
Tona T. Dove, Levander, Gillen & Miller, P.A., South St. Paul, MN, for respondent.
Considered and decided by KLAPHAKE, Presiding Judge, KALITOWSKI, Judge, and HUDSON, Judge.
OPINION
KLAPHAKE, Judge.
Pro se appellant Allan G. Cederberg challenges the district court's dismissal of his appeal from a special assessment imposed on his residential property by respondent City of Inver Grove Heights (the city). The district court dismissed the appeal as untimely after determining that appellant failed to comply with the mandatory jurisdictional requirements of Minn. Stat. § 429.081 (2002). The court also determined that appellant's attempt to join additional affected property owners was improper and invalid.
Because the district court timely received the appeal papers on June 9, 2003, even though the papers were not stamped *855 "filed" until June 24, 2003, we conclude that the district court erred in dismissing the appeal. Because appellant's attempt to join additional affected property owners was improper under Minn. R. Civ. P. 20.01, we conclude that the district court did not err in dismissing these additional parties. We therefore affirm in part, reverse in part, and remand to consider whether the city acted unlawfully by imposing a special assessment that exceeds the benefit to appellant's property.
FACTS
In December 2002, the city council adopted a resolution ordering certain improvements to 82nd Street that included grading, gravel base, drainage culverts, bituminous surfacing, and related appurtenances. The improvements were to be funded by special assessments to be paid by all affected property owners, including appellant. In April 2003, appellant and four other property owners submitted their objections to the proposed project.
Proper notice was sent to all affected property owners, including appellant, for a May 12, 2003 hearing. Notice also was published. The notices stated:
An owner may appeal an assessment to the District Court pursuant to Minnesota Statute, Section 429.081, by serving notice of the appeal upon the Mayor or the Clerk of the City within thirty (30) days after the adoption of the assessment and filing such notice with the District Court within ten (10) days after service upon the Mayor or the Clerk.
At the assessment hearing, the assessments were approved and adopted by the city council. On May 15, appellant was provided with a "Statement of Special Assessments."
On June 9, 2003, appellant served the City Clerk with a "Petition Against Local Improvements and Assessment," which objected to the assessment and requested the district court "to hear this appeal." A copy of the petition was also stamped "received" by the district court on June 9, suggesting that appellant, or someone else, personally delivered it to the Dakota County District Court on that date. For some reason, the petition was not stamped "filed" by the district court administrator until two weeks after its receipt, on June 24, 2003.
The city moved for summary judgment and dismissal, arguing that appellant failed to comply with the mandatory time limits of Minn.Stat. § 429.081 (2002), because the appeal was not "filed" with the district court within 10 days after it was served on the city. The city also argued that appellant's attempt to join additional property owners was invalid, because these additional owners did not personally sign the appeal papers and because their issues were not identical.
On December 17, 2003, the district court granted the city's motion for summary judgment. The court determined that it had no jurisdiction over the appeal because appellant failed to comply with the mandatory requirements of Minn.Stat. § 429.081 and because his attempt to join additional property owners was improper and invalid. This appeal followed.
ISSUES
1. Did the district court err in determining that appellant failed to timely file his appeal with the district court administrator as required by Minn.Stat. § 429.081 (2002)?
2. Did the district court properly determine that it lacked jurisdiction to hear a joint appeal, where the issues of the additional property owners were not identical?
*856 ANALYSIS
Summary judgment is properly granted when there are no genuine issues of material fact and either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. We view the evidence in a light most favorable to the party against whom summary judgment is granted. Nord v. Herreid, 305 N.W.2d 337, 339 (Minn.1981).
I.
In order to perfect an assessment appeal, an aggrieved party must first serve a notice of appeal on the city clerk within 30 days after the city adopts the assessments. The party must then file the notice of appeal with the district court administrator within 10 days after service upon the city clerk. Minn.Stat. § 429.081 (2002). These appeal requirements are mandatory and strictly construed. Wessen v. Village of Deephaven, 284 Minn. 296, 298, 170 N.W.2d 126, 128 (1969); Village of Edina v. Joseph, 264 Minn. 84, 93-94, 119 N.W.2d 809, 816 (1962).
Here, it is undisputed that appellant timely served his appeal on the city clerk on June 9, 2003. It is also undisputed that his appeal papers were stamped "received" by Dakota County District Court on the same day, June 9, 2003. For unknown reasons, the papers were not stamped "filed" until June 24, 2003, two weeks later, well beyond the 10-day time limit set out in Minn.Stat. § 429.081.
A document is "filed" when it is "deliver[ed]... to the court clerk or record custodian for placement into the official record." Black's Law Dictionary 642 (7th ed. 1999). The document must be delivered to the clerk at his office or at the place where it is required to be filed. Schulte v. First Nat'l Bank of Minneapolis, 34 Minn. 48, 51, 24 N.W. 320, 321 (1885) (stating that "mere delivery of the paper to the clerk to be filed, at a place other than his office, where it was required to be filed, even though the proper endorsement was put upon the paper, did not constitute a filing in that office").
Cases from other jurisdictions hold that the actual date of filing is the date upon which a pleading or a document is delivered or handed to the clerk to be filed, and that the clerk's endorsement as to the date of filing is merely the best evidence of the date of filing and is presumed correct so long as it is not challenged. Lavan v. Philips, 184 Ga.App. 573, 362 S.E.2d 138, 139 (1987); see also Valio v. Bd. of Fire & Police Comm'rs, 311 Ill.App.3d 321, 244 Ill. Dec. 136, 724 N.E.2d 1024, 1029 (2000) (stating that document is filed when it is delivered to proper officer with intent of having document kept on file by such officer in proper place, and that "ministerial tasks such as stamping a pleading `Filed' are unnecessary to perfect a filing"); Wallace v. Wallace, 708 So. 2d 1190, 1191 (La. App.1998) (stating that pleading is filed when it is delivered to clerk of court for that purpose and that clerk's failure to endorse and file pleading is not imputable to litigant). These jurisdictions further hold that the "critical date is the date the document is received; and, once the document is delivered, the person filing the document is not responsible for the disposition of the document by the clerk's office." Euge v. Golden, 551 S.W.2d 928, 931 (Mo.App.1977); see also NCD, Inc. v. Kemel, 308 Ill.App.3d 814, 242 Ill. Dec. 419, 721 N.E.2d 698, 701 (1999) (disagreeing with argument that litigant has duty to ensure that clerk file-stamps pleading and places it in court file).
Minnesota case law does not address this particular issue. In Greer v. City of Eagan, 486 N.W.2d 470, 471 (Minn.App. 1992), five days after serving their notice of appeal on the city clerk, the property *857 owners mailed their notice of appeal to the district court for filing. But the notice was not stamped "received" by the district court until 11 days after it had been served on the city; it was stamped "filed" 12 days after it had been served on the city. Id. The property owners argued that their appeal should be considered timely because under Minn. R. Civ. P. 6.05, the 10-day period may be enlarged by three days to allow for their service by mail. This court rejected the property owners' argument, noting that rule 6.05 discusses service of papers, not filing. Greer, 486 N.W.2d at 471. This court further concluded that its decision was generally consistent with other cases dealing with appeals under Minn.Stat. § 429.081. Greer, 486 N.W.2d at 472-73 (discussing other cases). Nothing in Greer or the other cases discussed in Greer precludes us from holding that appellant timely filed his appeal with the district court. The evidence here establishes that the appeal papers were received by the district court on June 9, 2003, which was well within the 10-day time limit of Minn.Stat. § 429.081, even though the papers were not stamped "filed" until June 24, 2003.
The city offers no explanation for the two-week delay, but appellant suggests that the delay occurred because "[t]he District Court has thirty days to review the Appeal for Material Fact, Date of File and Justification." Under Minn. R. Civ. P. 5.04, however, a court "administrator shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by any court rule or practice." Rule 5.04 thus supports the conclusion that a paper is filed when it is presented to the court administrator for that purpose and that the administrator may not delay filing to review the paper for proper form. See Carlson v. Cal. Dep't of Fish & Game, 68 Cal. App. 4th 1268, 80 Cal. Rptr. 2d 601, 606 (1998) (holding that clerk of court did not have authority to reject filing of complaint that complied with state requirements, merely because complaint failed to comply with local rule).
We therefore conclude that the district court erred in determining that the appeal was not timely filed. Because it is undisputed that appellant's appeal papers were received by the district court on June 9, his appeal was timely, even though his papers were not stamped "filed" until June 24, 2003.
II.
Appellant argues that his attempt to join additional parties in this appeal is allowed under Minn. R. Civ. P. 20.01. But joinder is generally inappropriate in assessment appeals concerning benefits and damages because "each of the[se] issues ... would necessarily be resolved on the basis of the particular facts relevant to each individual landowner's property." Bisbee v. City of Fairmont, 593 N.W.2d 714, 718 (Minn.App.1999) (quoting Lenz v. Coon Creek Watershed Dist., 278 Minn. 1, 19, 153 N.W.2d 209, 222 (1967)). Here, the petition states that "[w]e make notice that the tax assessment of $13,989.00 of each individual for a total of $209,835 greatly exceeds any increase in property value resulting from this project." This, and other statements made by appellant, suggests that the property owners are claiming that the increases in their market values are less than the assessments imposed upon them. These challenges necessarily involve distinct facts relevant to each individual parcel of property. We therefore conclude that the district court did not err in dismissing the additional property owners *858 from this appeal.[1]
Finally, appellant argues that the city acted unlawfully by imposing a special assessment that exceeds the benefit to his affected property. If proven, this presents a valid challenge to a special assessment. See Carlson-Lang Realty Co. v. City of Windom, 307 Minn. 368, 370, 240 N.W.2d 517, 519 (1976) (stating that property owner may challenge assessment by introducing evidence that amount of assessment exceeds benefit to property). The district court never reached this issue and granted summary judgment solely on the basis of the untimeliness of the appeal and the invalidity of the attempted joinder of additional property owners. Issues not presented or decided by the district court cannot be considered on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988). We therefore remand for further proceedings on this issue.
DECISION
Because the appeal papers were received by the district court within the 10-day time limit set out in Minn.Stat. § 429.081, the district court erred in determining that this appeal was not timely filed. Because the issues raised here involve different parcels and different facts, the district court did not err in dismissing the additional property owners whom appellant attempted to join. Because the district court granted summary judgment solely on the timeliness of the appeal and did not reach the underlying factual issues, we reverse and remand for further proceedings.
Affirmed in part, reversed in part, and remanded.
NOTES
[1] In the alternative, the city also argued that these additional property owners cannot be joined because none of them personally signed any documents relative to the appeal. We do not believe this is necessarily fatal to the attempted joinder. Minn. R. Civ. P. 11.01 provides that if a party to an action is not represented by a lawyer, the pleadings "shall be signed by the party." While appellant's attachment of a photocopy of the other property owners' signatures from another document fails to strictly comply with rule 11.01, the rule further allows the striking of an unsigned paper only when "omission of the signature is [not] corrected promptly after being called to the attention of the ... party." Thus, a pleading should be stricken only if a party refuses to provide a signature after a request or order to do so is made. 1 David F. Herr & Roger S. Haydock, Minnesota Practice § 11.4, at 263 (2002). Here, it is unclear whether the additional property owners were ever given an opportunity to personally sign the defective petition. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590328/ | 972 So. 2d 63 (2007)
Angela Mitchell HORN, as personal representative of the estate of Pamela Ann Mitchell
v.
FADAL MACHINING CENTERS, LLC, and Cardinal Machinery, Inc.
1051161.
Supreme Court of Alabama.
February 9, 2007.
Rehearing Denied May 11, 2007.
*67 David A. Kimberley of Cusimano, Keener, Roberts, Kimberley & Miles, P.C., Gadsden, for appellant.
Lawrence B. Clark and Jason Asbell of Baker, Donelson, Bearman, Caldwell & Berkowitz, Birmingham, for appellee Fadal Machining Centers, LLC.
Daniel S. Wolter and Brandon T. Bishop of Gaines, Wolter & Kinney, P.C., Birmingham, for appellee Cardinal Machinery, Inc.
WOODALL, Justice.
Angela Mitchell Horn, as personal representative of the estate of Pamela Ann Mitchell, appeals from a summary judgment in favor of Fadal Machining Centers, LLC ("Fadal"), and Cardinal Machinery, Inc. ("Cardinal"), in Horn's product-liability action against Fadal, Cardinal, and others for the wrongful death of Pamela Mitchell. We affirm in part, reverse in part, and remand.
I. Factual Background
Mitchell died on February 1, 2002, while operating a model VMC-6030HT vertical milling machine, one of three such machines purchased by her employer, Southern Defense Systems, Inc. ("SDS"), for use in its business. The machine cuts materials of various compositions, including metal and plastic. Its cutting tools are attached to a spindle that rotates at variable speeds from as low as 150 rpm to as high as 10,000 rpm. The machine can be operated in "manual mode" or in "automatic mode."
The machine was designed and manufactured by Fadal. SDS purchased it through Cardinal, a "sales/service" company, which also installed the machine on the premises of SDS on June 24, 1997, and made four visits to SDS between June 24, 1997, and February 1, 2002, to service or perform maintenance on the machine. At the time of its purchase and installation, the machine was equipped with impact-resistant "front door shields" ("the doors") that enclosed the cutting area. It also had an electronic feature described as a "safety interlock system" ("the interlock"), which automatically prevented the spindle from rotating when the doors were open and the machine was being operated in automatic mode. There was evidence indicating that the interlock was working properly on June 24, 1997, when the machine was installed.
At the time of the accident, two relevant warning stickers were affixed to the machine. One sticker read, in pertinent part: "Flying objects from this machine may injure. ALWAYS wear safety glasses when operating this machine. . . . DO NOT operate this machine with the doors open or with enclosures removed." Another sticker read: "Cutting tools can seriously injure or kill. DO NOT operate unless doors are closed and interlocks are working." (Capitalization in original.) That sticker also included a drawing of a hand above a rotating blade showing the tips of fingers being severed. Finally, the "Fadal Engineering User's Manual" ("the user's manual") stated, in pertinent part: "Rotating cutting tools can severely injure. NEVER place any part of the body near rotating cutting tools. Inspect cutting *68 tools for damage before operating this machine. DO NOT operate this machine unless doors are closed. DO NOT operate this machine unless door interlocks are working properly." (Capitalization in original.)
The accident occurred while the doors to the cutting area were open and the spindle was rotating at 4,000 rpm. Attached to the spindle was a cutting tool fabricated by SDS. Mitchell was killed when the cutting tool broke and flew out of the cutting area, striking her in the throat. Three days later, the Occupational Safety and Health Administration ("OSHA") began an investigation of the accident and inspection of the premises. The report generated by the inspection reveals that the interlocks on all three machines had been disabled and were nonfunctional on the day of the accident. This result had been accomplished by an unknown individual or individuals, who, at unknown times, had unplugged the "J-13 circuit" in the circuit panels located on the back of each machine. Shortly after the OSHA inspection, "Buck" Kadrowski, a service representative for Fadal, performed an on-site investigation and discovered that the J-13 circuits had been reconnected and that the interlocks were operational.
In February 2003, Horn filed this wrongful-death action against Fadal, Cardinal, and others. Her claims against Fadal and Cardinal included violations of the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"), negligence, and breach of the implied warranty of merchantability under Ala.Code 1975, § 7-2-314. Fadal and Cardinal each moved for a summary judgment. The trial court granted their motions and certified the judgment as a final judgment pursuant to Ala. R. Civ. P. 54(b). Horn appealed.
II. Discussion
On appeal, Horn challenges the summary judgment on the AEMLD claims as to both Fadal and Cardinal. However, she challenges the judgment on the negligence claims as to only Cardinal, and she challenges the judgment on the breach-of-warranty claims as to only Fadal.[1] We first address the propriety of the summary judgment in favor of Fadal.
A. Judgment for Fadal
On December 16, 2005, Fadal filed a motion for a summary judgment that stated, in toto:
"Comes now Defendant, Fadal Machining Centers, LLC, and pursuant to [Ala. R. Civ. P.] Rule 56, moves the court for summary judgment and in support thereof, says as follows:
"1. This case involves the removal of a safety device, an interlock intended to require the polycarbonate doors be closed before defendant's machine could be operated in the automatic mode. The evidence is undisputed that the interlock had been defeated and that [Mitchell] was using the machine in spite of adequate warnings not to operate the machine without operable interlocks. Thus, under the undisputed facts of this case, this defendant's machine had been substantially altered by willful acts of someone intending to defeat defendant's safety device.
"2. The tool used at the time of the accident was not manufactured or sold *69 by this defendant and was defective. The defects in the tool caused it to wobble while [Mitchell] was using it. In addition, the tool holding components were worn out and incapable of holding the tool in place. [Mitchell] was well aware of the condition of the tool holding components and used a hammer on a wrench in an effort to tighten the tool holding components. As a consequence of the combination of these two factors, the tool became disengaged causing [Mitchell's] death.
"3. The design of the machine approved by plaintiff's expert is one which the defendant manufactures for sale in Europe. Plaintiff's evidence is that any interlock is capable of defeat, and, as demonstrated by the Affidavit of Kathleen Holst, not only can the European interlock system be defeated, she has observed such defeat.
"4. The proper operating speed for defendant's machine under the circumstances at the time of the accident was more or less 150 rpms, yet [Mitchell] was operating the machine at 4,000 rpms, clearly an improper use of defendant's machine under those circumstances.
"This defendant attaches the identification of expert witnesses as well as Affidavits signed by them in support of this motion.
"WHEREFORE, PREMISES CONSIDERED, defendant moves the court for summary judgment."
Fadal filed no brief/memorandum of law in support of this motion.
The role of this Court in reviewing a summary judgment is well establishedwe review a summary judgment de novo, "`apply[ing] the same standard of review as the trial court applied.'" Stokes v. Ferguson, 952 So. 2d 355, 357 (Ala.2006) (quoting Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038 (Ala.2004)). "In order to grant the [summary-judgment] motion, the court must find clearly [1] that there is no genuine issue of material fact and [2] that the movant is entitled to a judgment as a matter of law. . . . The movant bears the burden initially of showing the two prongs of the standard." Maharry v. City of Gadsden, 587 So. 2d 966, 968 (Ala.1991) (second emphasis added). "If the movant meets [its] burden of production by making a prima facie showing that he is entitled to a summary judgment, `then the burden shifts to the nonmovant to rebut the prima facie showing of the movant.'" American Gen. Life & Accident Ins. Co. v. Underwood, 886 So. 2d 807, 811-12 (Ala.2004) (quoting Lucas v. Alfa Mut. Ins. Co., 622 So. 2d 907, 909 (Ala. 1993)).
However, "the party moving for summary judgment has the burden to show that he is entitled to judgment under established principles; and if he does not discharge that burden, then he is not entitled to judgment. No defense to an insufficient showing is required." Ray v. Midfield Park, Inc., 293 Ala. 609, 612, 308 So. 2d 686, 688 (1975) (emphasis added). See also Watts v. Watts, 943 So. 2d 115 (Ala.2006); Legg v. Kelly, 412 So. 2d 1202 (Ala.1982). Thus, this Court must initially consider the sufficiency of Fadal's showing in order to determine whether the burden of rebuttal ever shifted to Horn.
"Rule 56(c)(1), Ala. R. Civ. P., requires that a motion for summary judgment `be supported by a narrative summary of what the movant contends to be the undisputed material facts.' Although it may be included in the motion or may be separately attached as an exhibit, the rule clearly requires that a narrative summary be included with any motion for summary judgment. The narrative summary must include specific *70 references to pleadings, portions of discovery materials, or affidavits for the court to rely on in determining whether a genuine issue of material fact exists.
"A summary judgment is not proper if the movant has not complied with the requirements of Rule 56. Moore v. ClaimSouth, Inc., 628 So. 2d 500 (Ala. 1993); see also Thompson v. Rehabworks of Florida, Inc., 727 So. 2d 807 (Ala. Civ.App.1997), Hale v. Union Foundry Co., 673 So. 2d 762 (Ala.Civ. App.1995). While the Rule provides that a movant may base its motion upon the pleadings and other documents on file with the court, it does not allow a party to file a simplistic motion devoid of a narrative summary and specific references to those portions of the record demonstrating that no genuine issue of material fact exists."
Northwest Florida Truss, Inc. v. Baldwin County Comm'n, 782 So. 2d 274, 276-77 (Ala.2000) (summary judgment reversed for failure to file a narrative summary of undisputed facts) (emphasis added); see also Singleton v. Alabama Dep't of Corr., 819 So. 2d 596, 600 (Ala.2001)("an entry of a summary judgment for the defendants would not be proper until they have complied with the requirement of [Rule 56, Ala. R. Civ. P.,] that they submit a narrative summary of what they contend to be the undisputed material facts").
Having filed no memorandum of law, Fadal filed no narrative summary of undisputed facts as required by Rule 56(c). The summary-judgment motion contains only conclusory allegations regarding (1) the adequacy of the warnings affixed to the machine, (2) the substantiality of the alteration to the machine, (3) Mitchell's awareness of the condition of the cutting tool, (4) her alleged method of tightening the tool, and (5) the proper operating speed of the machine. Although the motion was accompanied by affidavits, it did not "include specific references to pleadings, portions of discovery materials, or affidavits for the court to rely on." Northwest Florida Truss, 782 So.2d at 277. It was nothing more than "a simplistic motion devoid of a narrative summary and specific references to those portions of the record [purporting to demonstrate] that no genuine issue of material fact exists." Id.
A motion that does not comply with Rule 56(c) does not require a response in defense from the nonmovant. Ray, 293 Ala. at 612, 308 So.2d at 688. Because the burden never shifted to Horn to rebut Fadal's motion, the summary judgment for Fadal was improper, regardless of the sufficiency of Horn's response, and that judgment is reversed with the exception of the abandoned failure-to-warn claim. We shall restrict our discussion in the remainder of the opinion to the issues presented by the judgment in favor of Cardinal.
B. Judgment for Cardinal
1. AEMLD
In order to defeat a properly supported summary-judgment motion, the plaintiff claiming a violation of the AEMLD must present substantial evidence indicating that he or she was injured or damaged by a product, which was sold "in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer" by one "engaged in the business of selling such a product," where the product was "expected to and [did] reach the [plaintiff] without substantial change in the condition in which it [was] sold." Casrell v. Altec Indus., Inc., 335 So. 2d 128, 132-33 (Ala.1976). "The term `defective' means that the product fails to meet the reasonable safety expectations of an `ordinary consumer,' that is, an objective `ordinary consumer,' possessed of the ordinary knowledge common to the community." Deere & Co. v. Grose, 586 So. 2d 196, 198 *71 (Ala.1991) (quoting Casrell, 335 So.2d at 133 n. 2). "[W]hether or not a product is defective is ordinarily a question for the jury." Joe Sartain Ford, Inc. v. American Indem. Co., 399 So. 2d 281, 284 (Ala. 1981), overruled on other grounds, Lloyd Wood Coal Co. v. Clark Equip. Co., 543 So. 2d 671 (1989); see also Gean v. Cling Surface Co., 971 F.2d 642 (11th Cir.1992); Entrekin v. Atlantic Richfield Co., 519 So. 2d 447, 449 (Ala.1987).
a. Plaintiff's Theory
According to Horn, the feature that made it "easy" to disable the interlock by "simpl[y] unplugging the J-13 circuit render[ed] the [machine] defective and thus unreasonably dangerous." Horn's brief, at 49. Horn's expert witness, B.J. Stephens, testified that it was foreseeable that the interlock "[would] be defeated," and that it was too easy to defeat the interlock. Horn's theory of the case is that Mitchell was killed while operating the machine in automatic mode, and that the machine was operational in that mode with the doors open and the cutting area unprotected because the interlock could be disabled by simply unplugging one wire in the circuit box on the back of the machine. Her theory, in other words, is that the machine as designed and marketed virtually invited removal of the interlock so as to permit open-door operation in the automatic mode. Thus, Horn does not fault the design for failing to inhibit open-door operation of the machine in manual mode.
In that connection, Cardinal contends that Horn "has failed to present substantial evidence indicating that the machine was in fact being operated in automatic mode." Cardinal's brief, at 27 (emphasis added). We disagree. It is undisputed that Mitchell's machine was set to operate at 4,000 rpm at the time of the accident. Roy Procter,[2] who is the "machine shop supervisor" for SDS and was, therefore, Mitchell's supervisor at the time of the accident, testified that 4,000 rpm was a "more appropriate" speed for automatic mode.
That fact is also supported by findings contained in the OSHA report. According to the OSHA report, Mitchell's machine had "finished [its] X axis," and she "was preparing [to make] her second cut" when the cutting tool broke. (Emphasis added.) Based on these findings, Horn's expert witness, B.J. Stephens, opined that the machine must have been operating in automatic mode. Procter agreed with Stephens that the OSHA findings suggest that Mitchell was operating the machine in automatic mode. In particular, he stated that if Mitchell was in the process of making a "second cut" when the accident occurred, she must have been operating the machine in automatic mode. He also testified that one could infer from the finding that the machine had "finished the X axis" that Mitchell "was in the middle of a job and in the automatic mode." Thus, the evidence indicating that Mitchell was operating the machine in automatic mode at the time of the accident was substantial.
Cardinal also contends that because of the deliberate circumvention of the interlockostensibly by employees of SDS after the installation of the machine by Cardinal the machine was not in substantially the same condition at the time of the accident as when it was marketed and sold. Therefore, it argues, the action of individuals not affiliated with Cardinal was an intervening cause of the accident, relieving Cardinal of liability.
Horn, however, contends that alteration does not relieve Cardinal of liability as a matter of law. This is so, because, she *72 argues, "where an alteration or modification is reasonably foreseeable to a manufacturer or seller, the manufacturer or seller is not relieved of liability under a design defect claim under the AEMLD." Horn's brief, at 55-56. This argument is in accord with Alabama law.
"`An essential element of an AEMLD claim is proof that the product reached the consumer without substantial change in the condition in which it was sold. . . . However, the mere fact that a product has been altered or modified does not necessarily relieve the manufacturer or seller of liability.'" Hicks v. Commercial Union Ins. Co., 652 So. 2d 211, 218 (Ala. 1994) (quoting Sears, Roebuck & Co. v. Harris, 630 So. 2d 1018, 1027 (Ala.1993)). "`A manufacturer or seller remains liable if . . . the alteration or modification was reasonably foreseeable to the manufacturer or seller. . . .'" Id. (emphasis added).
Harris involved, among other things, an AEMLD action against a manufacturer and a retailer arising out of the improper installation of a water heater, resulting in the severe carbon-monoxide poisoning of the occupants of a mobile home. The heater was improperly installed "without a pipe to vent carbon monoxide and other exhaust gases outside the mobile home." 630 So.2d at 1023. The heater was previously owned, and no "draft hood" accompanied the heater when it left the original purchaser's possession.
"At trial, [the installer for the occupants] testified that when he installed the water heater he did not know that gas water heaters required venting." 630 So.2d at 1023. After a jury returned a verdict against the manufacturer and seller, the manufacturer and seller moved for a judgment notwithstanding the verdict,[3] arguing, among other things, that the plaintiffs had failed to "carry their burden of establishing that the water heater had not been substantially altered between its [sale] and the time of the accident." 630 So.2d at 1027. Indeed, the "undisputed evidence was that when the water heater was installed in the mobile home its draft hood and vent pipe and the plastic pouch containing the instruction manual were missing." 630 So.2d at 1023. However, the trial court denied their motion, and they raised that issue on appeal. The plaintiffs argued that "[i]t was foreseeable . . . that the pouch containing the instruction manual, as well as the draft hood and vent pipe, would be removed from the water heater." 630 So.2d at 1027.
This Court agreed with the plaintiffs and held that "the trial court did not err in denying the motions for a [judgment notwithstanding the verdict] on the basis of a substantial alteration of the product." 630 So.2d at 1028. The Court stated:
"[W]e hold that the changes in the water heater either were not substantial alterations or, if they were substantial alterations, were foreseeable. First, the evidence shows that the vent pipe was not sold with the water heater. The instruction manual states that the customer must provide his own vent pipe. Therefore, the absence of a vent pipe cannot be a substantial alteration of the product. Second, substantial evidence shows that the instruction manual [and] the draft hood . . . were detachable and easily removed. When the water heater was originally sold, the instruction manual was contained in a plastic pouch affixed to the water heater by adhesive tape. The draft hood was attached by slipping tabs located on the legs of the draft hood into holes placed in the jacket *73 top covering the top of the water heater. . . . Thus, the removal of the manual [and] the draft hood . . . was a foreseeable alteration of the water heater."
630 So.2d at 1028 (emphasis added).
Horn's expert testified that it was foreseeable that the interlock "[would] be defeated" and that it was too easy to defeat it. Gary Wooster, a computer engineer employed by Fadal, testified that Fadal "know[s]" that users attempt to defeat the interlock. Wooster also stated that users of the machines Fadal markets and sells in Europe "expect to be able to defeat it." Because there is substantial evidence indicating that attempts to disable the interlock were foreseeable, there is substantial evidence indicating that the machine "reached the consumer without substantial change in the condition in which it was sold." 652 So.2d at 218.
In that respect, Fenley v. Rouselle Corp., 531 So. 2d 304 (Ala.1988), cited by Cardinal, is distinguishable. That case involved post-sale modifications of a machine press manufactured by Rouselle Corporation and purchased by the employer of the plaintiff, Virgil Fenley. 531 So.2d at 304. The trial court found that, before the accident that injured Fenley, his employer had modified the machine in a number of important ways:
"`The press was acquired by the employer of the Plaintiff and as manufactured was operated by a foot treadle. Prior to the day of this accident, the foot treadle had been removed. The employer was in the process of altering the press at the time of the accident by converting it to operate off of four palm buttons. Once the alterations were completed, the operation of the press would require two employees, each with both hands fully engaged on the buttons, before the press would operate.
"`Before the modification process had been completed, the employer elected to run some parts and had installed one unguarded palm button at approximately waist high in order to do so. The plaintiff, Virgil Wallace Fenley, apparently leaned against the one unguarded palm button, thus activating the press and injuring his hands.
"`In short, the Plaintiff and his employer were making temporary use of the press by putting the press in operation before the modification procedure had been completed.'"
531 So.2d at 304-05.
To those findings, this Court added the following comments:
"The rigging of the press to operate with one palm button was not the only change that decreased the safety of the press. James Brooks, the electrician who modified the press for Fenley's employer, testified regarding the changes made. He had been installing new electrical equipment and controls supplied by Rockford Safety Equipment. The press in question was the last to have its controls changed, and Fenley's employer instructed him to get this press running the best way he could, so that it could be used temporarily. He did not install the controls specified by Rockford Safety Equipment.
"For one operator, the press should have had two palm buttons wired in series so that the machine could operate only when the operator had both hands on the buttons. The buttons required guards so that they could not be pressed accidentally, but the guard was not in place on the button that caused the accident. The control box had interlocks to require the use of both buttons, but Brooks had bypassed the interlocks. He also testified that an anti-tie-down circuit was not wired, but did not specify *74 how that made the machine less safe. The motor start circuit was also bypassed. Brooks was asked, `When the motor had been turned to the off position, and if the motor start circuit had been wired properly, could the press have been actuated?' He answered, `No.' There is evidence in the record that Fenley may have turned the motor off before attempting to change dies, but did not wait for the motor to stop completely, and that the press could operate as long as the motor was still turning.
"Thus, it can be seen that Fenley's employer had caused numerous safety devices on the machine to be deactivated and had made the machine operate in a very different manner than it had when it left the control of Rouselle. . . . "
531 So.2d at 306 (emphasis added). Significantly, the trial court held that, "[a]t the time [Fenley] was injured, the machine was being operated in a manner or fashion and in a rigged condition that could not have been foreseen by the manufacturer." 531 So.2d at 305. On the basis of those findings and that holding, this Court affirmed the summary judgment in favor of the manufacturer.
Similarly, Burkett v. Loma Machine Manufacturing, Inc., 552 So. 2d 134 (Ala. 1989), involved post-sale modifications of a "saw blade guard, increasing the exposed part of the blade from 15 to 30 inches," and resulting in injury to a user. 552 So.2d at 135-36. This Court affirmed a summary judgment in favor of the manufacturer, because the manufacturer had presented uncontroverted evidence that the alteration was substantial. 552 So.2d at 136. In this case, we cannot say that, as a matter of law, the machine was substantially altered within the meaning of the AEMLD.
In short, Horn has presented substantial evidence as to the elements of her AEMLD claim. Her expert opined that the machine was "defectively designed due to the foreseeability of the industrial customer to bypass the interlock circuit in the elementary method employed in the instant case" and that the accident could have been prevented had the machine been equipped with technology that was readily available when it was manufactured. Indeed, Cardinal concedes that the broken cutting tool "was allowed to escape the confines of the machine because the front door shields were open." Cardinal's brief, at 3. Thus, we turn to Cardinal's affirmative defenses.
b. Affirmative Defenses of Contributory Negligence and Assumption of the Risk
Cardinal argues that "[e]ven if [Horn] proved that the machine was unreasonably dangerous, Mitchell was contributorily negligent and assumed the risk." Cardinal's brief, at 20 (emphasis added). More specifically, it contends that "a reasonable machine operator would [have] heed[ed] the warnings posted on the machine and in the manual that explain the purpose of the doors and warn that they should remain closed and that the interlocks should not be bypassed." Cardinal's brief, at 21 (emphasis added). Consequently, it argues, "Mitchell acted unreasonably and assumed the risk associated with operating the machine while the doors remained open at such a high rate of speed." Id. (emphasis added). Thus, Cardinal addresses the warning issue in the context of its affirmative defenses. See Spain v. Brown & Williamson Tobacco Corp., 872 So. 2d 101, 132 (Ala.2003) ("the presence of an adequate warning may be part of a defendant's assumption of the risk defense") (Johnstone, J., concurring in part and dissenting in part); see also Pitts v. Dow Chem. Co., 859 F. Supp. 543, 551 *75 (M.D.Ala.1994). However, in seeking a summary judgment on the affirmative defenses of assumption of the risk and contributory negligence, it advances the wrong legal standard.
"In order to establish assumption of the risk as a matter of law, the evidence must show that the plaintiff discovered the alleged defect, was aware of the danger, proceeded unreasonably to use the product, and was injured." Sears v. Waste Processing Equip., Inc., 695 So. 2d 51, 53 (Ala.Civ.App.1997) (emphasis added). "`[T]he plaintiff's state of mind is determined by [a] subjective standard,'" not the objective standard of reasonability. H.R.H. Metals, Inc. v. Miller, 833 So. 2d 18, 27 (Ala.2002) (emphasis added) (quoting McIsaac v. Monte Carlo Club, Inc., 587 So. 2d 320, 324 (Ala.1991)). "Assumption of the risk proceeds from the injured person's actual awareness of the risk." 587 So.2d at 324. "The plaintiff must know that a risk is present and must understand its nature." Id.
"To establish contributory negligence as a matter of law, [as Cardinal seeks to do here,] a defendant seeking a summary judgment must show that the plaintiff put [herself] in danger's way and that the plaintiff had a conscious appreciation of the danger at the moment the incident occurred. See H.R.H. Metals, Inc. v. Miller, 833 So. 2d 18 (Ala.2002); see also Hicks v. Commercial Union Ins. Co., 652 So. 2d 211, 219 (Ala.1994). The proof required for establishing contributory negligence as a matter of law should be distinguished from an instruction given to a jury when determining whether a plaintiff has been guilty of contributory negligence. A jury determining whether a plaintiff has been guilty of contributory negligence must decide only whether the plaintiff failed to exercise reasonable care. We protect against the inappropriate use of a summary judgment to establish contributory negligence as a matter of law by requiring the defendant on such a motion to establish by undisputed evidence a plaintiff's conscious appreciation of danger. See H.R.H. Metals, supra."
Hannah v. Gregg, Bland & Berry, Inc., 840 So. 2d 839, 860-61 (Ala.2002) (emphasis added). Thus, assumption of the risk and contributory negligence as a matter of law are both subjective standards, focusing on the risk as known and appreciated by the plaintiff.
Therefore, when Horn insists that "a `general awareness of danger' is not sufficient to establish [that] the plaintiff assumed the risk of injury," Horn's brief, at 62 (quoting Bowden ex rel. Bowden v. Wal-Mart Stores, Inc., 124 F. Supp. 2d 1228, 1235 (M.D.Ala.2000)), she is correct. Instructive in this connection is Campbell v. Robert Bosch Power Tool Corp., 795 F. Supp. 1093, 1099-1100 (M.D.Ala.1992) (applying Alabama law). In that case, William Campbell was injured when a "grinder disc sold by defendant Robert Bosch Power Tool Corporation (`Bosch')" shattered, sending a piece of the broken disc into his eye. 795 F.Supp. at 1095. "Although the disc bore a label instructing operators to `use guards and goggles,' Campbell . . . was not wearing eye protection at the time of his injury." Id. Campbell commenced an AEMLD action against Bosch, which asserted, among other things, the affirmative defense of assumption of the risk. Id. Campbell "move[d] for a partial summary judgment, arguing that Bosch [had] failed to generate a triable issue of fact concerning" that defense. 795 F.Supp. at 1095-96. Bosch presented evidence in opposition to the motion.
"In this regard, Bosch . . . offered evidence that Mr. Campbell had extensive *76 experience and training with power tools such as electric drills, bench grinders, sanders, buffing machines, power saws, and lathes. The evidence further indicate[d] that Campbell was aware of the potential of many of these devices to cause eye injury, and he owned a welding hood which he would wear to protect his eyes when he thought it necessary. Mr. Campbell admit[ted] that he was aware that swarf or grit kicked up by many of these tools, including the grinding and sanding tool in question, could cause eye injury, and he admits that he assumed that particular risk by not using a guard or goggles on many occasions, including the occasion of his injury.
". . . .
". . . Bosch offer[ed] evidence that Campbell ha[d] sustained four eye injuries prior to the date of the accident in question."
795 F.Supp. at 1099-1100 (emphasis added).
The court concluded that this evidence was "insufficient to raise an issue of material fact concerning assumption of the risk of harm from a shattering grinding disc." 795 F.Supp. at 1100. That evidence, said the court, "at most demonstrate[d] that Mr. Campbell was aware of a generalized danger of eye injury when using power tools, or . . . that he assumed the risk of having small particles of wood or metal striking his eye." Id. (emphasis added). According to the court, "[t]he danger presented by swarf or grit is different in kind and magnitude from the danger presented by a shattering disc, and Mr. Campbell's assumption of the risk of the former does not evidence his intent to assume the latter." Id. (emphasis added).
Nevertheless, the court ultimately held that Campbell was not entitled to a summary judgment on Bosch's assumption-of-the-risk defense. This holding was based on evidence indicating that Campbell owned a "Dremel `Moto-Tool' which serve[d] as a sander and grinder, [and] came with an owner's manual [that] Mr. Campbell admit[ted] to having read." 795 F.Supp. at 1099.
"The manual contained a number of admonishments for users to wear safety glasses, such as: `The operation of any power tool can result in foreign objects being thrown onto the eyes, which can result in severe eye damage. Always wear safety glasses or eye shields before commencing power tool operation.' On the same page as two eye protection notices, the manual bore a passage which read:
"`!WARNING When using the steel saw wheels . . . or cutoff wheels . . . always have the work securely clamped. Never attempt to hold the work with one hand while using either of these accessories. The reason is that these wheels will grab if they become slightly canted in the groove, and can kickback causing loss of control resulting in serious injury. . . . When a cutoff wheel grabs, the wheel itself usually breaks. When the steel saw wheel grabs, it may jump from the groove and you could lose control of the tool.'"
795 F.Supp. at 1099-1100 (emphasis added). Because "the owner's manual which accompanied the Dremel Moto-Tool warned specifically that cutoff wheels `usually' break when they grab," and because "[b]oth [the Dremel Moto-Tool] and the one Mr. Campbell was using when he was injured appear[ed] to utilize high-speed rotating wheels, discs, or cutters to cut, grind, sand, or polish materials such as wood or metal," the court concluded that there was a triable issue as to whether the "tools [were] relatively similar, and *77 [whether] knowledge of the specific dangerous propensities of one tool could translate into specific knowledge regarding the other." 795 F.Supp. at 1100 (emphasis added).
According to Horn, "the best argument defendants can make is that Pam Mitchell might have had a general awareness of danger of a spinning part." Horn's brief, at 61 (emphasis added). Again, we agree. The evidence is not undisputed that Mitchell had a "conscious appreciation" or "actual awareness" of the specific danger made the basis of this action.
One sticker warned the user to beware of injury from "[f]lying objects from [the] machine." The remedies suggested for that danger, however, were the use of "safety glasses" and closed-door operation of the machine. The other sticker warned that "[c]utting tools can seriously injure or kill," but also counseled against operating the machine "unless [the] doors [were] closed and [the] interlocks [were] working." These stickers, either by themselves or in combination, do not form the basis for a summary judgment on the affirmative defenses of assumption of the risk and contributory negligence, and Cardinal's reliance on them is misplaced for a number of reasons.
First, it is clear that the use of safety glasses would have been immaterial in protecting Mitchell in this accident. In that connection, the deposition testimony of Procter, Mitchell's supervisor, is particularly relevant to the potential effect of these warnings. Procter, who stated that he had "somewhat" trained Mitchell, opined that the primary purpose of the warnings against open-door operation was to protect the machine operator from the discharge of coolant and small chips. More specifically, he stated that one "would want [the doors] closed" while operating the machine at "real high speed rates." At such times, "the chips would be flying up high, or the coolant swinging around, or you might cut out something that had a little thing on it, and [you might] not want it to fly out or stuff like that." He later reiterated that opinion, stating that, because the coolant "would come [out] and spray out over you [and] you would get soaking wet," the doors were to be closed primarily because of the "coolant and chips." Like "[t]he danger presented by swarf or grit" in Campbell, the danger presented by small chips and coolant spraying from the cutting area in this case "is different in kind and magnitude from the danger presented by a shattering [cutting tool]," 795 F.Supp. at 1100, and awareness of a "generalized danger" of eye injury or irritation from small chips and coolant redressable with safety goggles does not necessarily "translate into specific knowledge," id., of the possibility of a fatal injury from a flying tool.
Similarly, although one sticker, indeed, warned of potentially fatal danger from "cutting tools," the accompanying picture showed fingers being severed. Winston Hadley, "vice-president of operations" at SDS, testified by deposition that he interpreted the picture on the sticker as a warning not to "reach in there and grab hold of that cutter." Of course, this accident did not involve the intrusion of body parts into the cutting area.
Second, both stickers advised against operating the machine with the doors open. The closed-door aspect of these warnings is subject to a latent difficulty. Facially, these warnings purport to cover all operations of the machine. It is undisputed, however, that the machine was designed and manufactured to operate in two modes automatic and manual and that the interlock was designed to be operational only in automatic mode.
*78 Procter testified that in his opinion the closed-door warnings applied only to operation of the machine in automatic mode. During Procter's deposition, the following colloquy occurred:
"Q. [By Horn's counsel] [D]id you ever take notice also of the part of the sign that said do not operate unless doors are closed?
"A. [By Procter] You mean, did I see it when I read it?
"Q. Yes.
"A. Yes.
"Q. Had you ever informed your machinists or machine operators to not before the death of Pam Mitchell to not operate their [machine] with the doors open?
"A. Yes. I would tell them they need to close the doors when it was in automatic mode because the chips and stuff would fly out on them. You don't want to do that.
"Q. When it was in automatic mode?
"A. Yes.
"Q. What about when it was in manual mode?
"A. No.
"Q. Do you think that sign just made reference strictly to . . . automatic mode as opposed to manual mode?
"A. That would be my opinion.
"Q. What do you base that on?
"A. Just when youwhen you're in manual mode, there are certain things you perform with the doors open."
(Emphasis added.)
Procter further stated that the machinists at SDS, both before and after Mitchell's accident, routinely operated their machines in manual mode with the doors open. Indeed, his testimony suggested that some operations would be difficult, if not impossible, to perform with the doors closed. Hadley also stated that there were functions of the machining process that could not be performed with the doors closed.
According to Procter, the difference between operation in manual mode and automatic mode was characterized largely by the speed of the spindle. Operations in manual mode were properly performed at rpm on the lower end of the scale of 150 rpm to 10,000 rpm, while automatic-mode operation involved rpms on the higher end of that scale. However, the warning stickers made no reference to spindle speed. Because the machines were designed to be, and were, operated with the doors open at low speeds, Mitchell may have understood the closed-door warning, as did Procter, as applying only to automatic mode, and further, may have understood that the most relevant feature of the warning was spindle speed.
Although Procter testified that 4,000 rpm was a "more appropriate speed for . . . automatic mode" (emphasis added), he also stated that during his regular supervision of Mitchell, he never knew her "to operate her machine in . . . a manner [he] considered unsafe." Thus, Mitchell may have thought that the closed-door warnings did not apply to an operation at 4,000 rpm, that is, that it was safe to operate the machine at that speed with the doors open.
Finally, one sticker, to be sure, specifically warned against operating the machine without a functioning interlock. However, Procter, who had worked for SDS for 10 years at the time of his deposition, testified that the interlocks on the machines had not worked in years, "if ever." He and Hadley, who had operated a Fadal machine for a previous employer, each stated that he did not even know what an interlock was, or how it was supposed to work, until after the accident. *79 There was no evidence indicating that Mitchell had ever seen a user's manual for the machine she was operating. There was no evidence, therefore, indicating that Mitchell knew what an interlock was, knew that the interlock on the machine she was operating had been disconnected, or knew how the interlock might have affected her operation of the machine had it been functional.
Cardinal, which, in effect, urges us to hold that the warnings were adequate as a matter of law to apprise Mitchell of the danger as bases for its affirmative defenses of assumption of the risk and contributory negligence, has failed to present undisputed evidence of Mitchell's "actual awareness of the risk," McIsaac, 587 So.2d at 324, or her "conscious appreciation of the danger," Hannah, 840 So.2d at 861, of operating the machine at 4,000 rpm with the doors open. Consequently, it is not entitled to a summary judgment based on the affirmative defenses of assumption of the risk or contributory negligence.
c. Affirmative Defense Product Misuse
Cardinal also argues that the accident resulted from misuse of the machine. Specifically, it contends that the cutting tool Mitchell was using was defective.
However, "`"[w]hen asserting misuse as a defense under [the] AEMLD, the defendant must establish that the plaintiff used the product in some manner different from that intended by the manufacturer. Stated differently, the plaintiff's misuse of the product must not have been `reasonably foreseeable by the seller or manufacturer.'"'" Sears, Roebuck & Co. v. Harris, 630 So.2d at 1028 (quoting Kelly v. M. Trigg Enters., Inc., 605 So. 2d 1185, 1192 (Ala.1992), quoting in turn Edward C. Martin, Alabama's Extended Manufacturer's Liability Doctrine (AEMLD), 13 Am. J. Trial Advoc. 983, 1040 (1990) (emphasis added)). Foreseeability may be established by expert testimony. Halsey v. A.B. Chance Co., 695 So. 2d 607, 609 (Ala. 1997). "Ordinarily, the plaintiff's misuse of an allegedly defective product is a factual issue for the jury." Harris, 630 So.2d at 1028. "Only `"[w]hen there is no genuine issue of material fact as to any element of an affirmative defense, . . . and it is shown that the defendant is entitled to a judgment as a matter of law"' is a summary judgment proper." Denmark v. Mercantile Stores Co., 844 So. 2d 1189, 1195 (Ala.2002) (quoting Wal-Mart Stores, Inc. v. Smitherman, 743 So. 2d 442, 445 (Ala.1999), quoting in turn Bechtel v. Crown Central Petroleum Corp., 495 So. 2d 1052, 1053 (Ala.1986)). "`The movant's proof must be such that he would be entitled to a directed verdict if this evidence was not controverted at trial."'" Denmark, 844 So.2d at 1195 (quoting Ex parte General Motors Corp., 769 So. 2d 903, 909 (Ala.1999)). In this case, Horn presented expert testimony that it was reasonably foreseeable that Fadal's "industrial customers [would] machine their own tools" and that such "tools [would not] necessarily be of the quality of those provided by the manufacturer." Because the issue of foreseeability is controverted, Cardinal has not met its burden on the affirmative defense of product misuse.
2. Negligence
Finally, Horn contends that Cardinal is guilty of negligence in the manner in which it inspected and serviced the machine throughout the period between its installation and the accident. Under this theory, as summarized by Horn's expert witness B.J. Stephens:
"Cardinal . . . breached its duties in this matter by its personnel not performing routine circuit box inspection during their visits and/or not following *80 any general safety checklist while on SDS premises. The performance of such, with appropriate notification to SDS and Fadal, would have likely modified SDS personnels' interlock bypass behavior in time to avert this tragedy."
However, Horn cites no legal authority relevant to her negligent-maintenance theory.
"Rule 28(a)(10), Ala. R.App. P., requires that arguments in an appellant's . . . brief contain `citations to the cases, statutes, other authorities, and parts of the record relied on.' The effect of a failure to comply with Rule 28(a)(10) is well established:
"`It is settled that a failure to comply with the requirements of Rule 28(a)([10]) requiring citation of authority for arguments provides the Court with a basis for disregarding those arguments:
"`"When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court's duty nor its function to perform an appellant's legal research. Rule 28(a)([10]); Spradlin v. Birmingham Airport Authority, 613 So. 2d 347 (Ala.1993)."
"`City of Birmingham v. Business Realty Inv. Co., 722 So. 2d 747, 752 (Ala.1998). See also McLemore v. Fleming, 604 So. 2d 353 (Ala.1992); Stover v. Alabama Farm Bureau Ins. Co., 467 So. 2d 251 (Ala.1985); and Ex parte Riley, 464 So. 2d 92 (Ala.1985).'
"Ex parte Showers, 812 So. 2d 277, 281 (Ala.2001). `[W]e cannot create legal arguments for a party based on undelineated general propositions unsupported by authority or argument.' Spradlin v. Spradlin, 601 So. 2d 76, 79 (Ala.1992)."
University of South Alabama v. Progressive Ins. Co., 904 So. 2d 1242, 1247-48 (Ala. 2004).
"Authority supporting only `general propositions of law' does not constitute a sufficient argument for reversal." Beachcroft Props., LLP v. City of Alabaster, 901 So. 2d 703, 708 (Ala.2004) (quoting Geisenhoff v. Geisenhoff, 693 So. 2d 489, 491 (Ala.Civ.App.1997)). "`[W]here no legal authority is cited or argued, the effect is the same as if no argument had been made.'" Steele v. Rosenfeld, LLC, 936 So. 2d 488, 493 (Ala.2005) (quoting Bennett v. Bennett, 506 So. 2d 1021, 1023 (Ala.Civ. App.1987) (emphasis in Steele)). Because Horn has cited no legal authority specific to her negligent-maintenance claim, she has not presented an argument sufficient for reversal of the judgment on that claim. The judgment in favor of Cardinal is, therefore, affirmed as to the negligent-maintenance claim.
III. Conclusion
In summary, the judgment in favor of Cardinal, insofar as it addressed the claim of negligent maintenance and negligent failure to warn, is affirmed. In all other respects, it is reversed. The summary judgment in favor of Fadal is, except for the negligent-failure-to-warn claim, reversed. The cause is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
COBB, C.J., and SMITH and PARKER, JJ., concur.
SEE, J., concurs in the rationale in part and concurs in the result.
*81 SEE, Justice (concurring in the rationale in part and concurring in the result).
Although I do not entirely agree with the majority's rationale in Part II.B.1.a., concerning Horn's theory of liability under the AEMLD, as to the remainder of the opinion, I concur in the rationale, and I concur in the result.
NOTES
[1] Although the complaint contained a negligent-failure-to warn claim, Horn has made no such argument on appeal. Thus, we deem as abandoned any challenge to the summary judgment in favor of Cardinal and Fadal on this claim. Chunn v. Whisenant, 877 So. 2d 595, 601 (Ala.2003); Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So. 2d 317 (Ala. 2003); Bettis v. Thornton, 662 So. 2d 256, 257 (Ala.1995) (an argument not made on appeal is considered abandoned or waived).
[2] Procter is a defendant in this action; however, he is not involved in this appeal.
[3] That motion would now be a postverdict motion for a judgment as a matter of law. See Rule 50, Ala. R. Civ. P., amended effective October 1, 1995. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590362/ | 686 N.W.2d 193 (2004)
BILL GRUNDER'S SONS CONSTRUCTION, INC., Plaintiff,
v.
William R. GANZER and Linda S. Ganzer, Husband and Wife, and Community Bank, Defendants.
Community Bank, Appellee,
v.
William R. Ganzer and Linda S. Ganzer, Husband and Wife, Defendants,
Bill Grunder's Sons Construction, Inc., Appellant.
No. 03-1002.
Supreme Court of Iowa.
September 1, 2004.
*194 David L. Scieszinski, Wilton, for appellant.
Richard R. Phillips, Muscatine, for appellee.
CADY, Justice.
This appeal provides an excellent opportunity to reiterate the importance of preservation of error for appeal. The appellant, having filed no resistance with the district court to the appellee's motion for summary judgment, and having filed no motion after entry of summary judgment, now asks us to reverse the district court's decision based on grounds first raised in the appellant's brief to this court. We choose instead to adhere to well-established rules of procedure and notions of fairness and judicial economy. For the reasons that follow, we affirm the district court's grant of summary judgment.
I. Background Facts and Proceedings.
This case stems from activities related to real estate owned by William R. and Linda S. Ganzer described as Lot 16 of Emerald Valley Subdivision in Fruitland, *195 Iowa. On May 22, 1996, the Ganzers executed a deed of trust on Lot 16 in favor of Community Bank of Muscatine as security for a $16,500 loan. The deed of trust was recorded on May 30, 1996.
On July 7, 2000, the Ganzers entered into a contract with Bill Grunder's Sons, Inc. (Grunder) to pour a foundation for a house on Lot 16. Grunder furnished labor and materials on the project valued at $8,423.50. The Ganzers, however, never made payment. On April 20, 2001, Grunder perfected a mechanic's lien on Lot 16. See Iowa Code § 572.2 (2003) ("Every person who shall furnish any material or labor for, or perform any labor upon, any building or land for improvement ... shall have a lien upon such building or improvement, and land belonging to the owner on which the same is situated ... to secure payment for the materials or labor furnished or labor performed.").
On May 17, 2002, Grunder filed a petition to foreclose on the mechanic's lien, naming the Ganzers and Community Bank as defendants. Because the Ganzers had also defaulted on their payments to the Bank, the Bank filed an answer and cross-petition also seeking to foreclose on Lot 16.
The Bank filed a motion for summary judgment on March 13, 2003, claiming that any interest Grunder had in Lot 16 was junior and inferior to the Bank's deed of trust. Grunder filed no resistance to the Bank's motion, and did not file a statement of material facts or memorandum of authorities. See Iowa R. Civ. P. 1.981(3) ("Any party resisting the motion shall file a resistance within 15 days, unless otherwise ordered by the court, from the time when a copy of the motion has been served. The resistance shall include a statement of disputed facts, if any, and a memorandum of authorities supporting the resistance."). Accordingly, on April 3, 2003, the district court granted the Bank's motion and entered a decree of foreclosure in the Bank's favor, declaring the deed of trust "to be superior and paramount to the interests, claims or liens of" Grunder.
On April 17, 2003, the Ganzers filed for bankruptcy in the United States Bankruptcy Court for the Southern District of Iowa. This resulted in an automatic stay of proceedings against the Ganzers. See 11 U.S.C. § 362(a) (2000). The Bank subsequently filed a motion with the bankruptcy court for relief from the stay. The court granted the motion and lifted the stay.
Grunder appeals[1] the district court's grant of summary judgment. It claims the *196 Bank's deed of trust on Lot 16 was defective and that the Bank was therefore not entitled to judgment as a matter of law.
II. Standard of Review.
We recently set forth the standard of review of a district court's entry of summary judgment:
"In reviewing the grant of summary judgment ... the question is whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. An issue of fact is `material' only when the dispute is over facts that might affect the outcome of the suit, given the applicable governing law. The requirement of a `genuine' issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. We examine the record in a light most favorable to the party opposing the motion for summary judgment to determine if movant met his or her burden."
Rants v. Vilsack, 684 N.W.2d 193, 199 (Iowa 2004) (quoting Junkins v. Branstad, 421 N.W.2d 130, 132-33 (Iowa 1988)); accord Estate of Harris v. Papa John's Pizza, 679 N.W.2d 673, 677 (Iowa 2004); Hynes v. Clay County Fair Ass'n, 672 N.W.2d 764, 766 (Iowa 2003).
III. Preservation of Error.
Grunder asserts that the deed of trust contained a defective future advances or "dragnet" clause.[2] A dragnet clause in a mortgage states that the "mortgage secures all the debts that the mortgagor may at any time owe to the mortgagee." Blacks Law Dictionary 1036 (8th ed. 2004). "Dragnet clauses are valid but not favored by the law. They are thus strictly construed against the mortgagee." Decorah State Bank v. Zidlicky, 426 N.W.2d 388, 390 (Iowa 1988) (citing Farmers Trust Sav. Bank v. Manning, 311 N.W.2d 285, 289 (Iowa 1981)). Nevertheless, "they have a proper and legitimate place in commerce" and "will be enforced to the extent it appears to have been within the intent of the parties." Freese Leasing, Inc. v. Union Trust Sav. Bank, 253 N.W.2d 921, 925 (Iowa 1977) (quoting Brose v. Intl. Milling Co., 256 Iowa 875, 879, 129 N.W.2d 672, 675 (1964)).
Grunder points to Iowa Code section 654.12A, claiming that it renders the deed of trust junior to its mechanics lien. Section 654.12A provides, in pertinent part:
[I]f a prior recorded mortgage contains the notice prescribed by this section and identifies the maximum credit available to the borrower, then loans and advances made under the mortgage, up to the maximum amount of credit together with interest thereon, are senior to indebtedness to other creditors under subsequently recorded mortgages and other subsequently recorded or filed liens *197 even though the holder of the prior recorded mortgage has actual notice of indebtedness under a subsequently recorded mortgage or other subsequently recorded or filed lien.... The notice prescribed by this section for the prior recorded mortgage is as follows:
NOTICE: This mortgage secures credit in the amount of ... .... Loans and advances up to this amount, together with interest, are senior to indebtedness to other creditors under subsequently recorded or filed mortgages and liens.
Iowa Code § 654.12A (2003). Grunder argues that because the Bank's deed of trust contained a dragnet clause and did not contain the statutory notice, the Bank's security interest in Lot 16 cannot be senior to Grunder's mechanic's lien. However, even assuming this argument has merit, Grunder raised it for the first time in this appeal. It was not made to the district court, and the district court had no opportunity to pass upon it.
We will not review issues on appeal unless they were properly preserved below. Weltzin v. Nail, 618 N.W.2d 293, 296 (Iowa 2000) (citing In re Marriage of Hitchcock, 265 N.W.2d 599, 606 (Iowa 1978)). As we have repeatedly explained,
[B]ased upon considerations of fairness,... this court is not ordinarily a clearinghouse for claims which were not raised in the district court[.] "[I]t is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider. Furthermore, it is unfair to allow a party to choose to remain silent in the trial court in the face of error, taking a chance on a favorable outcome, and subsequently assert error on appeal if the outcome in the trial court is unfavorable."
Sorci v. Iowa Dist. Ct., 671 N.W.2d 482, 489 (Iowa 2003) (quoting DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002)); accord Wilson v. Liberty Mut. Group, 666 N.W.2d 163, 167 (Iowa 2003) ("`It is a fundamental doctrine of appellate procedure that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.'" (citation and emphasis omitted)); Strand v. Rasmussen, 648 N.W.2d 95, 100 (Iowa 2002); Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002); Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995); see also Garwick v. Iowa Dep't of Transp., 611 N.W.2d 286, 288 (Iowa 2000) ("`Issues not raised before the district court ... cannot be raised for the first time on appeal.'" (quoting State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997))); Vincent v. Four M Paper Corp., 589 N.W.2d 55, 64 (Iowa 1999) ("We will not address an argument which the district court did not have an opportunity to consider." (citing Sun Valley Iowa Lake Ass'n v. Anderson, 551 N.W.2d 621, 642 (Iowa 1996))).
Grunder is correct that the Bank, as the party moving for summary judgment, had the burden to show the district court that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3). The moving party in a summary judgment proceeding is obligated to establish a right to recover on its claim. Id. Moreover, while our rules of summary judgment direct the nonmoving party to contest the entry of judgment and point out deficiencies in the claim, the failure to do so does not necessarily relieve the movant of its obligation. However, if the movant has failed to establish its claim and the court nevertheless enters judgment, the nonmovant must at least preserve error by filing a motion following *198 entry of judgment, allowing the district court to consider the claim of deficiency.
In this case, not only did Grunder fail to file a resistance to the Bank's motion, it also remained silent when the district court allegedly erroneously entered judgment in favor of the Bank. If Grunder believed the Bank failed to show entitlement to judgment as a matter of law by failing to show the deed of trust was free from defects, it was obligated to alert the trial court by filing a motion following entry of judgment. Id. R. 1.904(2); Meier, 641 N.W.2d at 537-39. Because Grunder filed no such motion, the issue is not preserved for appeal.
IV. Conclusion.
Because Grunder failed to preserve any issue for appeal, "there is nothing before us to review." Wilson, 666 N.W.2d at 167. We therefore affirm the decision of the district court.
AFFIRMED.
All justices concur except LARSON, J., who takes no part.
NOTES
[1] On June 17, 2003 seventy-five days after the district court entered judgment in favor of the Bank Grunder filed a Notice of Appeal. The Bank argues that the appeal is untimely because it was filed more than thirty days after the entry of judgment. See Iowa R.App. P. 6.5(1) (stating that appeals to the supreme court must generally be filed within thirty days of judgment). Grunder responds that it had an additional thirty days after it received notice of the lifting of the stay on June 2, 2003 to file its appeal and that its filing on June 17 was therefore timely. See 11 U.S.C. § 108(c)(2) (2000) (extending the time "for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor, or against" a co-debtor until "30 days after notice of the termination or expiration of the stay").
The Bank asserts the stay only applies to actions against the debtors (the Ganzers) and does not apply to toll Grunder's time to file notice of appeal of the judgment in the Bank's favor. See C.H. Robinson Co. v. Paris & Sons, Inc., 180 F. Supp. 2d 1002, 1009 (N.D.Iowa 2001) ("As a general proposition, this automatic stay provision of the Bankruptcy Code applies only to bar actions against the debtor and does not extend to solvent codefendants." (citations omitted)). We need not decide whether the stay effectively tolled Grunder's time to file a notice of appeal, because even assuming arguendo that the appeal was untimely, the record shows that Grunder failed to preserve error with the district court's entry of summary judgment.
[2] The deed of trust contained a provision stating that its purpose was
[t]o secure payment to the Bank, its successors or assigns, of all notes, obligations and liabilities of Borrower to the Bank, and on which note or notes, obligations and liabilities Borrower, either jointly or severally, is a maker, endorser, surety or guarantor. The intention of Borrower hereby is to cover and secure payment to the Bank of any indebtedness now or hereafter owing by Borrower and also to secure payment of any extensions or renewals of any such indebtedness or any part thereof. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590350/ | 686 N.W.2d 241 (2004)
262 Mich.App. 274
Penny RYMAL, Plaintiff,
v.
Herman BAERGEN and MTD Systems, Inc., Defendants-Appellees, and
Clark Products, Inc., and Clark Foodservice, Inc., Defendants-Appellants.
Penny Rymal, Plaintiff-Appellant,
v.
Herman Baergen and MTD Systems, Inc., Defendants-Appellees, and
Clark Products, Inc., and Clark Foodservice, Inc., Defendants.
Docket Nos. 243795, 248124.
Court of Appeals of Michigan.
Submitted March 9, 2004, at Detroit.
Decided June 8, 2004, at 9:05 a.m.
Released for Publication August 18, 2004.
*245 Mazur, Morgan, Meyers & Kittel, PLLC (by Linda M. Galante and Courtney E. Morgan, Jr.), Dearborn, for Penny Rymal.
Vercruysse, Murray & Calzone, P.C. (by Daniel J. Bernard and Susan Hartmus Hiser), Franklin, for Herman Baergen and MTD Systems, Inc.
Butzel Long, P.C. (by Marcia L. Proctor) and Kienbaum, Opperwall, Hardy & Pelton, P.L.C. (by Elizabeth Hardy and Robert Bruce Brown), Detroit, Birmingham, for Clark Products, Inc., and Clark Foodservice, Inc.
Before: KELLY, P.J., and MURPHY and NEFF, JJ.
MURPHY, J.
In Docket No. 248124, plaintiff appeals as of right the trial court's order granting summary disposition in favor of defendants Herman Baergen and MTD Systems, Inc., with respect to plaintiff's claims of sexual harassment and retaliation in the workplace brought pursuant to the Civil Rights Act (CRA), MCL 37.2101 et seq.[1]In Docket No. 243795, defendants Clark Products, Inc., and Clark Foodservice, Inc., (hereinafter collectively referred to as Clark) appeal by leave granted an order disqualifying Clark's counsel for a conflict of interest. Because there exists genuine issues of material fact in regard to all of plaintiff's claims against defendants Baergen and MTD, and because Baergen can be held individually liable solely for the retaliation claim in spite of this Court's decision in Jager v. Nationwide Truck Brokers, Inc., 252 Mich.App. 464, 652 N.W.2d 503 (2002), we affirm in part and reverse in part the grant of summary disposition in Docket No. 248124 and remand for further proceedings. Because there was a lack of evidence showing a conflict of interest or improper use of confidential information requiring disqualification, and because Baergen expressly consented to counsel's continued participation should a conflict be discovered, we reverse the order disqualifying Clark's counsel in Docket No. 243795.
I. FACTUAL ALLEGATIONS and PROCEDURAL HISTORY
A. Plaintiff's Complaint
On July 26, 2001, plaintiff filed a two-count complaint against all defendants. The complaint alleged that plaintiff commenced her employment with Clark in 1983 as an accounts receivable manager. She later became an office manager, assistant division manager, acting division manager, and subsequently, in 1993, a sales manager. Baergen was an employee-supervisor of Clark having authority over plaintiff. During plaintiff's and Baergen's tenure with Clark, they formed MTD Systems, which plaintiff refers to as her employer, *246 along with Clark. MTD is in the business of picking up movies from distribution points and delivering the movies to various theaters.
Plaintiff alleged that in October 1999, Baergen propositioned plaintiff to have a sexual relationship, and she declined. Shortly thereafter, Baergen asked plaintiff to sign a noncompete agreement that would reflect a promise not to engage in any business that was competitive with Clark. Plaintiff alleged that the request was an act of harassment and was made because of plaintiff's refusal to comply with Baergen's sexual advances. Plaintiff did not sign the noncompete agreement.
Further, plaintiff averred that, beginning in November 1999, Baergen started reassigning plaintiff's duties to other persons. These duties included creation of advertisements, approval of vacation requests, and assignment of new account leads to sales people. Additionally, plaintiff alleged that Baergen removed her as liaison to several customers, thereby interfering with sales commissions, questioned her about her work hours, and pressured plaintiff to relinquish her management position. Moreover, Baergen became verbally abusive and once became so enraged, because he thought plaintiff was on the phone too long, that he punched a wall in plaintiff's office, requiring him to seek medical attention. Plaintiff averred that Baergen started accusing her of having sexual relations with customers to obtain their business, and that she spent her lunch hours having sex with various men.
The complaint alleged that in January 2000, plaintiff demanded a sales review and a formal description of her job duties and responsibilities in response to a complaint that she was inadequately performing, but Baergen refused. It was asserted that plaintiff contacted a Clark executive about her ongoing problems with Baergen and that the executive promised to, but did not, meet with plaintiff. After this failed attempt by plaintiff to rectify the situation, Baergen refused to pay an expense voucher for plaintiff and removed her expense account entirely. Her duties were lowered to those of an administrator. Plaintiff additionally averred that the claimed reasons for these actions were that, on March 1, 2000, she had been demoted to a sales person. In July 2000, Baergen informed plaintiff that the sales manager job was given to a male. Plaintiff alleged that she left her employment on July 27, 2000, as she had been constructively discharged. We note that with respect to the alleged retaliatory actions, discriminatory practices, and other events, plaintiff's complaint does not distinguish whether the actions were in the context of her employment with Clark or MTD Systems.
Count I of the complaint, which is fairly cursory, asserted a cause of action predicated on the CRA. The count provided, in relevant part:
22. Plaintiff was sexually harassed and retaliated against by defendants' agent and employee, Defendant Baergen, throughout the course of her employment.
23. This sexual harassment and retaliation included, but is not limited to, unwelcome comments and conduct of an offensive and sexual nature directed at plaintiff, the creation of a hostile work environment, as described herein[,] and constructively terminating plaintiff's employment and withholding pay commissions due to her, based on her refusal to engage in a sexual relationship ....
Count II of the complaint alleged violations of the SRCA for outstanding sales commissions due and owed plaintiff by Clark and MTD.
*247 B. Proceedings Concerning Attorney Disqualification
Before Baergen and MTD filed an answer to the complaint, and fast approaching the deadline for answering, the law firm serving as counsel for Clark contacted Baergen and asked him whether he wished for Clark's counsel to file an answer on his and MTD's behalf with the understanding that the appearance would initially be limited to filing an answer and affirmative defenses. Counsel also informed Baergen that continued representation would be conditioned on an opportunity to determine to its satisfaction that no conflict of interest existed between Clark and Baergen and MTD. Counsel also indicated that while there did not initially appear to be a conflict, if a conflict were revealed through discovery, counsel for Clark would have to cease representation of Baergen and MTD. Counsel required that Baergen agree that if a conflict were discovered, counsel could continue to represent Clark notwithstanding that Baergen may have shared information subject to the attorney-client privilege. Baergen signed a letter setting forth all of the conditions noted above, acknowledging acceptance of the law firm's representation under the terms described. Clark's counsel then filed an answer and affirmative defenses on behalf of Baergen and MTD in late August 2001.
A few days later, in early September 2001, Clark's CEO met with Baergen and counsel law firm, and during a discussion of the nature of MTD's business and Baergen's and plaintiff's involvement with the business, it was determined that a conflict of interest existed. Baergen was excused from the meeting, and after it had concluded counsel informed him that the law firm was withdrawing representation of Baergen and MTD. Baergen obtained new counsel for himself and MTD, and an order for substitution of counsel was entered on October 10, 2001. In December 2001, Clark terminated Baergen's employment on the basis of Baergen's involvement with MTD.
In July 2002, after the conclusion of plaintiff's and Baergen's depositions, Clark filed a motion for leave to add a counterclaim against plaintiff and a cross-claim against Baergen and MTD. The proposed claims related to Baergen and MTD, which closely mimicked the proposed claims against plaintiff, included breach of implied contract, breach of fiduciary duty, usurpation of corporate business opportunity, tortious interference with business relations or reasonable business expectations, silent fraud, and civil conspiracy. These causes of action were predicated on allegations that, in 1989, Baergen was approached about the film distribution idea while he was working in his capacity as a manager for Clark, that Baergen did not tell Clark superiors about the opportunity, that Baergen, without authority, declined the opportunity on behalf of Clark, and that Baergen thereafter, acting in concert with plaintiff, took advantage of the opportunity and formed and began operating MTD to distribute films. Clark alleged that in 1990, Baergen registered MTD as a Michigan corporation. Clark further averred that Baergen and plaintiff, at times, used "on the clock" employees of Clark to conduct MTD business without corporate approval from Clark and utilized Clark's petty cash fund in operating MTD. Clark was adamant that the allegations supporting the proposed cross-claim arose through knowledge solely derived from the depositions of plaintiff and Baergen, which occurred after counsel terminated representation of Baergen and MTD. Leave to amend to add a counterclaim and cross-claim was denied by the trial court on grounds of untimeliness.
*248 Baergen and MTD filed a motion to disqualify Clark's counsel from further representing Clark, arguing that continued representation constituted a conflict of interest. A short evidentiary hearing was conducted on the motion for disqualification. The director of administration and general counsel for Clark testified that Clark wished to retain present counsel because counsel was most familiar with the action and obtaining new counsel would place Clark at a disadvantage in that new counsel would have to be advised of prior developments, causing delays and a great deal of extra expenses. On cross-examination, general counsel stated that he played no role whatsoever with respect to the retention agreement between Clark's litigation counsel and Baergen, and that Clark never obtained Baergen's consent to Clark actually taking adverse action against Baergen and MTD.
Baergen testified that he was the sole shareholder of MTD, and that he indeed signed a retainer agreement with Clark's counsel. Baergen asserted that counsel never indicated an intent that an adverse action would be taken against Baergen, that he never consented to allow counsel to take an adverse action against him, that he never consented to counsel's representation of Clark in a manner adverse to Baergen, that he did not now consent to counsel's continued representation of Clark, and that he did not and does not waive a conflict of interest. Baergen stated that he had never met Clark's general counsel. On cross-examination, Baergen acknowledged the meeting in early September 2001 with Clark's CEO and counsel, and that, shortly into the meeting, the CEO stated, "that's a smoking gun," after which Baergen was asked to leave the room and subsequently told that he had to obtain his own attorney. An affidavit by Baergen that was submitted with the motion to disqualify provided that he had confidential discussions with Clark's counsel in preparation for filing the answer, along with subsequent confidential discussions, all related to giving counsel background on himself, MTD, and the allegations in the lawsuit.
The trial court found a conflict of interest existed and that Clark's counsel attempted to take an adverse action against Baergen and MTD. The order entered by the trial court provided that "the motion to disqualify Clark's counsel is granted, and Clark's counsel is disqualified from further representation of the Clark defendants in this matter and from representing any party in any matter where such party is adverse in any way to Herman Baergen and/or MTD System Inc."
This Court granted Clark's application for leave to appeal the disqualification order, limited to the issues raised in the application. Rymal v. Baergen, unpublished order of the Court of Appeals, entered March 25, 2003 (Docket No. 243795). A motion for summary disposition filed by Clark was denied by the trial court, and on April 2, 2003, an order was entered by the trial court granting plaintiff's motion for an order approving settlement and for the entry of judgment. The order reflects that plaintiff and Clark settled the lawsuit for $200,000.
C. Summary Disposition
Defendants Baergen and MTD (hereinafter defendants) filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10). Defendants first argued that Baergen had no liability under the CRA because, citing Jager, supra, the CRA does not provide for individual, supervisor liability. Defendants further argued that there was no MTD work environment, let alone a hostile work environment, and that plaintiff's allegations related solely to her employment with *249 Clark. This argument was made by defendants in reliance on plaintiff's deposition testimony that her work for MTD, which involved general clerical work, including billing, making bank deposits, and paying bills, was done on evenings and Saturdays, totaled about twelve to fifteen hours a week, and was done from her home. The remainder of defendants' argument pertained to the SRCA claim.
Oral argument was presented to the trial court on the motion for summary disposition, and the court took the matter under advisement, subsequently issuing a written opinion. After reviewing the factual background of the case and presenting an overview, the trial court next stated that "[w]hile perhaps unartfully worded, plaintiff's allegations are sufficient to put defendant MTD on notice of claims of retaliation, hostile work environment, and quid pro quo sexual harassment." Regarding the claim of retaliation, the trial court ruled that plaintiff had not established that her participation in protected activity, rejection of Baergen's sexual advances, and complaint to the Clark executive were significant factors in MTD's employment actions. The trial court further stated:
Although plaintiff claims defendant Baergen's behavior toward her at defendants Clark changed after her rejection of his proposition, she testified she left the dinner [where the proposition was made] and proceeded to a regular distribution meeting for defendant MTD that defendant Baergen also attended without incident. Despite the allegations of ongoing problems with defendant Baergen at defendants Clark, the record does not suggest plaintiff had any problems with defendant Baergen at defendant MTD until April 2000 (some six months later) when he took over the bookkeeping duties for defendant MTD. However, plaintiff's remaining duties with defendant MTD were not apparently affected.
While perhaps suggestive of a possible causal connection, the remoteness in time of the single incident related to defendant MTD does not establish plaintiff's presumed protected activities were a significant factor in defendant MTD's reduction of her duties. Moreover, plaintiff continued working for defendant MTD for another three months before ceasing her functions therewith, suggesting defendant MTD's actions were not so adverse or severe that plaintiff would have felt compelled to resign her duties.
With respect to the claims of a hostile work environment and quid pro quo harassment, the trial court first noted that the apparent lack of a physical workplace did not preclude an action for hostile work environment. The trial court then proceeded to conclude that "plaintiff has failed to proffer evidence suggesting her October 14, 1999 refusal of defendant Baergen's proposition either was a factor in defendant MTD's reduction of her duties in April 2000 or created an intimidating, hostile or offensive work environment with defendant MTD."
Plaintiff filed a motion for reconsideration, arguing that the trial court committed palpable error in finding that no adverse consequences of plaintiff's rejection of Baergen's sexual advances occurred until April 2000 because deposition testimony showed that duties and pay were negatively affected in 1999. Plaintiff further argued that palpable error was committed where the trial court ignored plaintiff's claims of Baergen's repeated harassment and verbal abuse, as noted by the court in its opinion denying Clark's motion for summary disposition, which pertained to Baergen as a supervisor for both Clark and MTD. Additionally, plaintiff asserted that the trial court committed palpable *250 error by dismissing the retaliation claim against Baergen because the court's opinion did not even address the issue; it only addressed the retaliation claim against MTD, and Jager, supra, did not preclude individual liability for retaliation claims.
The trial court issued a written opinion and order denying the motion for reconsideration. The trial court ruled that "[w]hile defendant Baergen may have been wearing two hats, the evidence only suggests that he acted wrongly while wearing ... Clark's hat." The trial court found that there was no evidence that any of the heated exchanges between plaintiff and Baergen while on Clark's time and premises involved MTD business. The court stated that MTD was dismissed "for a failure of proof that plaintiff was subjected to harassment by defendant Baergen with respect to her job duties and conditions with defendant MTD." In regard to plaintiff's apparent reduction in pay and duties, the trial court pointed to evidence that two other MTD employees were treated similarly, thus "plaintiff has not established her rejection of defendant Baergen's proposition was a significant factor in her reduction in pay and duties." Accordingly, the court found a lack of the necessary causal connection between the protected activity and any retaliatory acts. Finally, the trial court ruled that Jager, supra, precluded all claims of individual liability against Baergen under the CRA.
II. ANALYSIS
INTRODUCTION
Plaintiff challenges summary dismissal of her CRA claims in Docket No. 248124 on grounds that genuine issues of material fact exist and that the CRA does not preclude individual liability. Clark challenges the order disqualifying counsel from any participation in proceedings against Baergen and MTD in Docket No. 243795.
DOCKET NO. 248124
A. Standard of Review
This Court reviews de novo a trial court's decision on a motion for summary disposition. Koenig v. South Haven, 460 Mich. 667, 674, 597 N.W.2d 99 (1999). Construction or interpretation of the CRA presents an issue of law that is also reviewed de novo. Haynie v. Dep't of State Police, 468 Mich. 302, 306, 664 N.W.2d 129 (2003).
B. Individual Liability of Defendant Baergen
Plaintiff raises three separate arguments on the matter of individual liability under the CRA. First, Baergen was liable because he was in fact plaintiff's employer as a sole proprietor. Second, assuming that Baergen was not plaintiff's employer, this Court's decision in Jager, supra, was legally incorrect and unsound. Third, with respect to the retaliation claim, Jager is inapposite because the CRA makes "persons," not just employers, liable for such claims if established.
Plaintiff's complaint asserted CRA violations sounding in sexual harassment (quid pro quo harassment and hostile environment harassment) and retaliation. In Chambers v. Trettco, Inc., 463 Mich. 297, 309, 614 N.W.2d 910 (2000), our Supreme Court reviewed the principles underlying a sexual harassment lawsuit in the context of employment and stated:
Through the Civil Rights Act, Michigan law recognizes that, in employment, freedom from discrimination because of sex is a civil right. MCL 37.2102; MSA 3.548(102). Employers are prohibited from violating this right, MCL 37.2202; MSA 3.548(202), and discrimination because of sex includes sexual harassment, MCL 37.2103(i); MSA 3.548(103)(i).
MCL 37.2103(i) provides, in pertinent part:
Discrimination because of sex includes sexual harassment. Sexual *251 harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions:
(i) Submission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment ....
(ii) Submission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual's employment ....
(iii) The conduct or communication has the purpose or effect of substantially interfering with an individual's employment... or creating an intimidating, hostile, or offensive employment ... environment.
The first two of these subsections have been commonly referred to as quid pro quo sexual harassment. Chambers, supra at 310, 614 N.W.2d 910. "Sexual harassment that falls into the third subsection is commonly labeled hostile environment harassment." Id. (citation omitted).
With respect to the retaliation claim, MCL 37.2701(a) of the CRA provides, in relevant part, that a person shall not "[r]etaliate or discriminate against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act."
The trial court ruled that Jager, in which this Court held "that the CRA provides solely for employer liability," id. at 485, 652 N.W.2d 503, precluded any claim of individual liability under the CRA.
We note that in Elezovic v. Ford Motor Co., 259 Mich.App. 187, 202, 673 N.W.2d 776 (2003), this Court concluded that "under the controlling legal principles regarding sexual harassment under Michigan law, Chambers, supra at 313, 614 N.W.2d 910, the Legislature did not intend to preclude individual liability for sexual harassment." The Elezovic panel, however, recognized its obligation to abide by Jager under MCR 7.215(J)(1), and ruled accordingly. The judges of this Court were polled, pursuant to MCR 7.215(J), and rejected the convening of a special panel to resolve any conflict between Jager and Elezovic.[2]Elezovic v. Ford Motor Co., 259 Mich.App. 801, 677 N.W.2d 378 (2003). Therefore, Jager remains controlling precedent.
Before we commence a substantive discussion of Jager, we reject plaintiff's argument that Baergen was the sole proprietor of MTD and, as such, he was both an employer and employee and thus can be held liable as an employer under the CRA. The record reflects that MTD is a Michigan corporation. Baergen testified in his deposition that he was the sole shareholder in MTD, a subchapter S corporation. Plaintiff testified in her deposition that she was a twenty-five percent owner of MTD and an employee, but she conceded that there was no written documentation showing her ownership. Plaintiff asserted that no MTD stock was ever issued; however, she made no claim that MTD was not a corporate entity, nor did she present evidence that MTD was not a recognized Michigan corporation. A corporation and sole proprietorship are two separate and distinct business entities. See Clark v. United Technologies Automotive, Inc., 459 Mich. 681, 693, 594 N.W.2d 447 (1999). Under MCL 37.2201(a) of the CRA, an "employer" is defined as a "person" *252 with one or more employees, and a "person" is defined as including a corporation, MCL 37.2103(g). The law treats a corporation as an entirely separate entity from its shareholders, even where one individual owns all the corporation's stock. Foodland Distributors v. Al-Naimi, 220 Mich.App. 453, 456, 559 N.W.2d 379 (1996); Kline v. Kline, 104 Mich.App. 700, 702, 305 N.W.2d 297 (1981). Here, MTD was plaintiff's employer because the corporation had one or more employees, not Baergen. Moreover, a review of the complaint reveals specific allegations that Baergen was an agent and employee of MTD and that plaintiff was an employee of MTD, not Baergen. Additionally, tax documents indicate that MTD System, Inc., was plaintiff's employer.
Plaintiff fails to argue that MTD's corporate veil should be pierced, and the documentary evidence would not support a piercing, such that Baergen should be treated as the actual employer, assuming that the doctrine is even applicable in the context of the CRA. "The traditional basis for piercing the corporate veil has been to protect a corporation's creditors where there is a unity of interest of the stockholders and the corporation and where the stockholders have used the corporate structure in an attempt to avoid legal obligations." Foodland, supra at 456, 559 N.W.2d 379. In the case at bar, there was no evidence suggesting that Baergen was using the corporate structure in an attempt to avoid legal obligations.
For the corporate veil to be pierced, the corporate entity must be a mere instrumentality of another individual or entity. Id. at 457, 559 N.W.2d 379, quoting SCD Chemical Distributors, Inc. v. Medley, 203 Mich.App. 374, 381, 512 N.W.2d 86 (1994). Further, the corporate entity must have been used to commit a wrong or fraud. Id. Additionally, and finally, there must have been an unjust injury or loss to the plaintiff. Id. There is no single rule delineating when a corporate entity should be disregarded, and the facts are to be assessed in light of a corporation's economic justification to determine if the corporate form has been abused. Id. at 456-457, 512 N.W.2d 86.
In the case before us today, we find no evidence indicating that MTD was a sham corporation or a mere instrumentality of Baergen that he used to commit a wrong. Rather, it appears that MTD is a legitimate corporation and that plaintiff was at one time employed by MTD.
Turning to Jager, the plaintiff there worked for Nationwide Truck Brokers, Inc. (NTB), through an employee lease agreement, and she was supervised by James Wilkerson. Jager accused Wilkerson of making unwanted sexual advances and inappropriate touching. She filed suit against numerous defendants, including Wilkerson, alleging two counts of discrimination in violation of the CRA. The Jager panel stated that "[t]he only count at issue on appeal is plaintiff's claim of `sexual discrimination and harassment.'" Jager, supra at 469, 652 N.W.2d 503. The trial court granted NTB's and Wilkerson's motion for summary disposition pursuant to MCR 2.116(C)(10), finding that, in regard to the quid pro quo theory of sexual harassment, there was no evidence of any adverse job action, and in regard to hostile work environment sexual harassment, the evidence showed that NTB promptly responded to the accusations when provided notice of the situation. The trial court also ruled, as to Wilkerson, that there was "no authority for the proposition that an individual employee could be held liable for sexual harassment where the employer had been dismissed." Id. at 470, 652 N.W.2d 503.
*253 The Jager panel affirmed the trial court's grant of summary disposition. With respect to individual liability under the CRA, the Court began its analysis by rejecting this Court's decision in Jenkins v. Southeastern Michigan Chapter, American Red Cross, 141 Mich.App. 785, 369 N.W.2d 223 (1985), wherein it was held that individual defendants could be held liable under the CRA. Jager, supra at 478, 482, 652 N.W.2d 503. The Court in Jager chose not to follow Jenkins, pursuant to MCR 7.215(I)(1),[3] because Jenkins relied on federal case law that was not controlling and that was implicitly overruled, and because a majority of federal courts interpreting title VII of the Federal Civil Rights Act of 1964 have found that there is no individual liability under title VII. Jager, supra at 481-482, 652 N.W.2d 503. Accordingly, the Jager panel undertook its own examination of individual liability under the CRA.
To keep the ruling in Jager in context, we first note the relevant statutory provisions that were the subject of the Jager litigation. MCL 37.2202, which addresses discriminatory practices and forms the basis for sexual harassment claims, along with MCL 37.2103(i), Chambers, supra at 309, 614 N.W.2d 910, provides, in subsection 1, that "[a]n employer shall not" engage in discrimination. (Emphasis added.) MCL 37.2201(a) defines "employer" as "a person who has 1 or more employees, and includes an agent of that person." MCL 37.2103(g) defines a "person" as including, among other entities and designations, an individual, agent, or corporation.
The Jager panel stated and concluded:
[O]ur Legislature used substantially similar language when including "agent" in the definition of employer under the CRA ("and includes an agent of that person"), MCL 37.2201(a), as is found in title VII ("and any agent of such a person"), 42 USC 2000e(b). We believe that, like title VII, the language in the definition of "employer" concerning an "agent" of the employer was meant merely to denote respondeat superior liability, rather than individual liability. In fact, our Supreme Court recently observed that the reference to "an agent" in the CRA's definition of employer "addresses an employer's vicarious liability for sexual harassment committed by its employees." Chambers, supra, 463 Mich. at 310, 614 N.W.2d 910....
* * *
Read as a whole, the CRA envisions, in our opinion, employer liability for civil rights violations that result from the acts of its employees who have the authority to act on the employer's behalf rather than individual liability for those civil rights violations. Further, had our Legislature intended individual, rather than employer, liability under the CRA, it could have expressly stated so. Thus, we conclude that the CRA provides solely for employer liability, and a supervisor engaging in activity prohibited by the CRA may not be held individually liable for violating a plaintiff's civil rights. [Jager, supra at 484-485, 652 N.W.2d 503.]
We conclude that Jager directs us to hold that Baergen cannot be held individually liable for the sexual harassment claims asserted by plaintiff. Of course, plaintiff's former employer, defendant MTD, does not benefit from the decision in Jager. With regard to plaintiff's retaliation claim, however, we find that Baergen can indeed be held individually liable because Jager is distinguishable in that Jager *254 specifically dealt with the interpretation of the language in the antidiscrimination provision of the CRA, and we are, instead, required to interpret the antiretaliation provision of the CRA that contains language different from that relied on by the Jager panel.
As noted earlier, the antiretaliation provision of the CRA, MCL 37.2701, clearly prohibits "[t]wo or more persons ... or a person" from retaliating or discriminating against a person who has opposed a violation of the CRA or who has made a charge or lodged a complaint under the CRA. In contrast to MCL 37.2202(1), which prohibits an "employer" from engaging in discriminatory practices and which was the focus in Jager, § 2701 refers merely to a "person." And a "person" includes an "individual," MCL 37.2103(g), such as Baergen. The "employer" definition contained in § 2201(a), and referenced in § 2202(1), is simply not implicated in the antiretaliation provision of the CRA.
Reiterating the well-embedded rules of statutory construction in our jurisprudence, our Supreme Court in Pohutski v. City of Allen Park, 465 Mich. 675, 683, 641 N.W.2d 219 (2002), stated:
When faced with questions of statutory interpretation, our obligation is to discern and give effect to the Legislature's intent as expressed in the words of the statute. We give the words of a statute their plain and ordinary meaning, looking outside the statute to ascertain the Legislature's intent only if the statutory language is ambiguous. Where the language is unambiguous, "we presume that the Legislature intended the meaning clearly expressed no further judicial construction is required or permitted, and the statute must be enforced as written." Similarly, courts may not speculate about an unstated purpose where the unambiguous text plainly reflects the intent of the Legislature. [Citations omitted.]
MCL 37.2701 could not be drafted in a manner that is any more clear or unambiguous; a "person," which by statute and necessity includes an individual, shall not retaliate, and the term invokes individual liability. There is no language that could conceivably be interpreted as limiting an action for retaliation under the CRA against only an employer. Giving effect to the Legislature's intent as expressed in the words of the statute leads us to the conclusion that a CRA retaliation claim under § 2701 can be maintained against individuals apart from employers. There is no need to look outside the statute to ascertain the Legislature's intent. We acknowledge that the Jager panel framed its holding with a broad brush, enunciating that individual liability is precluded under the CRA. But it is abundantly clear, and beyond any reasonable dispute, that the sole basis for the Court's ruling was the language found in the antidiscrimination provision of the CRA, and that the Court never referenced, addressed, or mentioned the antiretaliation provision of the CRA. The language in § 2701 is much broader than that in § 2202. As such, we find that the issue whether there is individual liability under the antiretaliation provision of the CRA was not determined in Jager, thereby giving us the opportunity to address the issue.
Although not binding authority, we find persuasive and agree with the decision by the United States District Court for the Eastern District of Michigan in Poches v. Electronic Data Systems Corp., 266 F Supp 2d 623 (E.D.Mich., 2003). The federal court was faced with the exact question posed to us, i.e., whether there is individual liability under the antiretaliation provision of the CRA in the face of Jager. In *255 regard to the all-encompassing language set forth in Jager, the Poches court stated:
Jager's analysis rests entirely and exclusively upon the "employer" language found in the Elliott-Larsen Act's anti-discrimination provision. It follows, in this Court's view, that Jager does not purport to construe other provisions in the Act, such as the anti-retaliation provision, which are not directed solely at employers. As Jager itself recognizes, the Michigan Legislature "could have expressly stated" its intention to impose "individual, rather than employer, liability," but chose not to do so in the Act's anti-discrimination provision. The anti-retaliation provision, in contrast, does express this legislative intent, through its reference to "persons" rather than "employers." Accordingly, just as Jager's holding rests on the language of the statutory provision at issue in that case, this Court's ruling rests on the different language of the statutory provision at issue here. [Poches, supra at 627 (citation omitted; emphasis in original).]
The federal court in Poches concluded that the antiretaliation provision of the CRA, § 2701, authorized the imposition of individual liability for impermissible retaliatory acts. Id. at 628. We also so conclude. If this is not what the Legislature intended by its use of different terms in the two provisions, it is up to the Legislature to amend accordingly and it is not a matter for this Court.[4]
Defendants argue, however, that plaintiff failed to even plead a retaliation claim. This argument lacks merit. We first note that the trial court ruled that plaintiff did in fact, although inartfully, plead a claim of retaliation. A portion of the argument presented by defendants relies on deposition testimony and relates to issues of fact, which are not pertinent to whether plaintiff pleaded a claim.[5] A review *256 of plaintiff's complaint indicates that a cause of action for retaliation was sufficiently pleaded.
In DeFlaviis v. Lord & Taylor, Inc., 223 Mich.App. 432, 436, 566 N.W.2d 661 (1997), this Court stated that "[t]o establish a prima facie case of unlawful retaliation under the Civil Rights Act, a plaintiff must show (1) that he engaged in a protected activity; (2) that this was known by the defendant; (3) that the defendant took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action." (Citations omitted.) Paragraphs 15 and 16 of the complaint alleged:
Plaintiff contacted Brian Fraser, Executive Vice President/General Counsel/Human Relations Director for the Clark defendants to complain of defendant Baergen's treatment toward her. Mr. Fraser stated he would be in Detroit and would meet with plaintiff at that time. Although Mr. Fraser came to Detroit, he never spoke with plaintiff despite her attempts to meet with him.
After plaintiff's attempts to speak with Brian Fraser, defendant Baergen refused to pay an expense voucher for plaintiff and removed her expense account entirely. Defendant Baergen also lowered her duties to those of an administrator....
Plaintiff's complaint further alleged that she was "retaliated against by defendants' agent and employee, Defendant Baergen, throughout the course of her employment." Although the complaint makes a single reference to the retaliation constituting sexual discrimination, we opine that the complaint was sufficient to inform defendants and place them on notice that a retaliation claim was being asserted under the CRA. MCR 2.111(B)(1).[6] The alleged protected activity was the act of lodging a complaint or charge with Fraser about Baergen's discriminatory actions, MCL 37.2701(a).[7] See Jager, supra at 475, 652 N.W.2d 503 (complaint to higher management suffices). The complaint implicitly alleges knowledge by Baergen of the claims and charges made by plaintiff to Fraser, and it specifically alleges adverse employment actions arising from or being caused by the protected activity engaged in by plaintiff.
We hold that plaintiff's CRA retaliation claim against Baergen should not have been dismissed on the basis that Baergen was not her employer. And we further hold that plaintiff sufficiently pleaded a cause of action under the CRA's antiretaliation provision. We next address whether there were genuine issues of material fact sufficient to survive summary disposition with respect to the sexual harassment and *257 retaliation claims against MTD and with respect to the retaliation claim against Baergen.
C. Sexual Harassment and Retaliation Claims and Summary Disposition MCR 2.116(C)(10)[8]
The trial court granted summary disposition of all claims on the basis of its determination that plaintiff failed to submit sufficient documentary evidence to show a significant causal connection between the protected activity and the alleged retaliatory acts and adverse employment actions and failed to show a hostile work environment. The trial court focused somewhat on the failure to show a correlation between the harassment or retaliation and plaintiff's employment with MTD, as opposed to her employment with Clark. We find, on review de novo, that the documentary evidence created a genuine issue of material fact.
"To establish causation, the plaintiff must show that his participation in activity protected by the CRA was a `significant factor' in the employer's adverse employment action, not just that there was a causal link between the two." Barrett v. Kirtland Community College, 245 Mich. App. 306, 315, 628 N.W.2d 63 (2001). A causal connection can be established through circumstantial evidence, such as close temporal proximity between the protected activity and adverse actions, as long as the evidence would enable a reasonable fact-finder to infer that an action had a discriminatory or retaliatory basis. Town v. Michigan Bell Tel. Co., 455 Mich. 688, 697, 568 N.W.2d 64 (1997); Taylor v. Modern Engineering, Inc., 252 Mich.App. 655, 661, 653 N.W.2d 625 (2002); McLemore v. Detroit Receiving Hosp. & Univ. Medical Ctr., 196 Mich.App. 391, 396-397, 493 N.W.2d 441 (1992).[9]
*258 In the context of a motion under MCR 2.116(C)(10), we begin by reviewing the documentary evidence presented to the trial court. Deposition testimony shows that plaintiff and Baergen, twenty years plaintiff's senior, engaged in an extramarital sexual affair in the 1980s during their employment with Clark. The affair lasted approximately a year. Although the affair ended, plaintiff and Baergen remained on good terms, and in 1989 they worked together to launch MTD, a company that distributed films to theaters, after Baergen was approached with the idea by Bob Kleinhans.[10] On October 14, 1999, plaintiff went out to dinner with Baergen at a restaurant after Baergen sent a note to plaintiff asking her out as "old friends." Baergen indicated that they talked about a number of subjects including his concerns about plaintiff's substantial weight loss, the deterioration of her work habits, her divorce, her relationships, and plaintiff's life in general, work and personal. Plaintiff testified in her deposition that, at the dinner, Baergen sought to rekindle the prior relationship. She rejected his request to resume the relationship. Plaintiff testified:
He came right out and told me. He told me that he was in love with me[,] that I was the only woman that he had ever considered leaving his wife for[,] that he wished that I felt the same way about him that he felt about me, and I guess he really didn't understand why I wasn't interested in resuming that relationship since I was no longer married. . . ."
Baergen did not specifically ask plaintiff to engage in sexual relations. After the dinner, plaintiff and Baergen went to a short meeting related to the MTD business and nothing unusual occurred at the meeting. Within a day or so after the dinner, Baergen sent a letter to plaintiff, which could reasonably be construed as an apology for his behavior at dinner in putting plaintiff on the spot regarding resuming the relationship and indicating that Baergen may have had a few too many drinks. The letter, while reflecting a tone of love and disappointment and also being apologetic, contained the following cryptic words of advice: "Be careful as you seek out little pockets of happiness. Everything in life has a price tag and payment always comes due." Baergen made no further attempts to resume the prior sexual relationship.
Plaintiff testified that after her rejection of Baergen's advances, he initiated a campaign against plaintiff at work that included angry and volatile verbal explosions directed at plaintiff, screaming, swearing, and demeaning language. Baergen would *259 berate plaintiff allegedly without justification, and he, at times, would throw things such as pencils during an angry outburst. Plaintiff asserted that Baergen would accuse her of being on the phone too long, having sexual relationships with male customers and clients, and of not properly performing her job. And he would question her about her lunchtime activities, asking if she had engaged in sexual relations with others. Baergen was constantly commenting about plaintiff's personal life and denigrating plaintiff's work and the work of employees under her supervision. One time, Baergen became so inflamed over a believed affair that he punched a wall and had to seek medical treatment. Plaintiff stated that, in the last three months of her employment, which ended with MTD and Clark in July 2000 when she quit or was "constructively discharged," there was an outburst or incident virtually every day. Often, Baergen would berate plaintiff to tears and in front of other employees. A Clark employee testified in his deposition that he recalled an incident in which he was merely assisting plaintiff in finding something in the Clark warehouse, for which Baergen became enraged to the point that he screamed at plaintiff, calling her a "f dumb bitch," which left plaintiff in tears. This employee also recalled Baergen communicating to him that plaintiff was having an affair with a particular customer. Other employees testified about Baergen's outbursts directed at plaintiff, or verbal confrontations between plaintiff and Baergen, along with seeing plaintiff in tears as a result. Baergen would also discuss with others whether plaintiff was having sexual relations with a customer. Although the time frame was not always specific with respect to particular incidents, it can be gleaned from the deposition testimony of all those deposed that the verbally abusive behavior occurred from November 1999 until plaintiff left the companies in July 2000. Additionally, it appears that the verbally abusive behavior occurred on Clark's premises.
Within a week of the dinner, Baergen asked plaintiff to sign a noncompete agreement for Clark, and plaintiff refused without incident. Plaintiff acknowledged that Clark had previously sought a noncompete agreement from her and other employees before the October 1999 dinner, but not of other employees afterwards. There was documentary evidence indicating that commencing in November 1999 and lasting through July 2000, Baergen required that he sign off on duties that plaintiff had typically handled independently before then. Baergen requested that plaintiff think about going into sales full time and giving up her sales manager position and her marketing and customer service responsibilities. Baergen then began reducing these duties and responsibilities, including her advertising and account assignment duties, without a legitimate basis according to plaintiff, and plaintiff testified that she was informed by Baergen in July 2000 that he had hired someone else to be the sales manager. There was testimony by an accounts receivable employee, however, suggesting that plaintiff was not performing at an acceptable manner, in that she kept messing up paperwork. Plaintiff indicated that she subsequently discovered that Baergen had told headquarters that he had actually terminated her as sales manager on March 1, 2000. The job duties and responsibilities discussed by us in this paragraph related to plaintiff's employment with Clark. In regard to vehicle expenses that were not paid to plaintiff per Baergen's instructions, she stated that it did not pertain to expenses incurred for MTD but for Clark. A March 6, 2000, letter regarding the expenses penned by plaintiff and sent to *260 Baergen, suggested that she might go higher up to mediate the issue, and Baergen's written response was "go wherever the f___k you want."
Plaintiff's deposition reflects that her responsibilities with MTD included computer billing, contacting clients, doing mailers, negotiating insurance, interviewing and meeting with drivers, making bank deposits, and paying bills. Plaintiff insisted that she was a twenty-five percent owner of MTD, that she was the secretary-treasurer, and that Baergen stole her interest. Baergen testified that plaintiff did not own an interest in MTD. Regarding MTD duties, plaintiff stated that she spent about twelve to fifteen hours a week working for the business on average, but it varied depending on such things as special openings and events; Baergen testified that plaintiff spent about ten hours a week doing MTD work. Plaintiff indicated that at times she could work as many as thirty hours a week for MTD. She testified in her deposition that the bulk of the work, bookkeeping, accounts payable, billing, and payroll, was done on evenings and Saturdays from her home. Plaintiff asserted that two to five hours of the MTD weekly work was done in Baergen's presence. There was also substantial evidence showing that Baergen and plaintiff were conducting MTD business during their hours at Clark. Many MTD phone calls were fielded by plaintiff and Baergen on Clark time. MTD-related documents were often faxed to Baergen at Clark. A lockbox was kept on Clark's premises, where MTD documents were kept and dropped off by drivers. An employee of MTD and Clark who took over plaintiff's duties after plaintiff left in July 2000 testified that he continued as plaintiff had done by basically fielding MTD phone calls, booking films, making runs, and handling faxes while at Clark. This ceased when the Clark corporate office discovered what was occurring.
Evidence showed that up through 1998, plaintiff was earning on average about $30,000 a year with MTD. This amount included a salary and bonuses that were typically given out at the end of the year but at times sporadically during the year. For 1999, plaintiff was only paid approximately $12,500, and there was no evidence that MTD saw a reduction in business for the year. It appears that a bonus was not paid to plaintiff for 1999, and a March 6, 2000, letter from Baergen to plaintiff reflects him questioning why he should pay her $10,000, considering the work plaintiff actually performed for MTD. Plaintiff responded in writing, on that same letter, that she was still a part owner and therefore should receive her bonus.[11] Plaintiff's response also indicated that she would happily accept doing the duties of billing and payroll if he returned those duties to her. There was evidence showing that Baergen had taken away most of the MTD duties from plaintiff and had given them to another individual, and that by July 2000, plaintiff's involvement was quite limited. There is also record evidence reflecting that Baergen removed MTD duties from plaintiff because she was not completing MTD bookkeeping matters in what Baergen believed to be a timely manner. Plaintiff insisted that Baergen made misrepresentations regarding her work for MTD. What is unclear from the record is *261 the time frame in which various MTD duties were removed from plaintiff's responsibility. There was general testimony by plaintiff that all the adverse actions and verbal abuse she suffered took place after October 1999 when she rejected Baergen's request to resume their relationship.[12] The husband of the woman who took over some of the MTD duties from plaintiff testified that he thought his wife started working for MTD in late 1998 or early 1999, but it could have been late 1999 or early 2000. The record contains a copy of a single MTD check made out to "cash" for bookkeeping services, dated August 1999, and endorsed by plaintiff's replacement. We opine that a fact question remains with regard to the date that Baergen removed plaintiff's MTD duties and responsibilities.
In January or February 2000, plaintiff verbally complained to Brian Fraser, Clark's executive vice-president/general counsel/human relations director, about Baergen's abusive, discriminatory, and harassing behavior and the unfair treatment that she was receiving. Plaintiff charged that Baergen acted in a demeaning manner toward her, was unprofessional, and would swear and scream at plaintiff. According to plaintiff, Fraser cut her short, indicating that he would be in town within a couple of weeks and would discuss the matter further. However, when Fraser was in town, he did not talk to plaintiff, although he spoke to Baergen, and Baergen stated that there was no problem. Fraser later told plaintiff that he did not speak to her at Clark because he did not want to make her feel uncomfortable in front of Baergen. Fraser testified, acknowledging that he received a complaint from plaintiff about Baergen's behavior and spoke to Baergen, but asserting that plaintiff never made any allegations concerning sexual misconduct or communications; there was no sexual harassment complaint. According to plaintiff, a conversation between her and Baergen revealed that he knew that she had complained to Fraser about his behavior. A Clark-MTD employee testified that he once had an altercation with Baergen and threatened to complain to corporate headquarters about Baergen, and Baergen stated that the one thing he would never tolerate was an employee going over his head. This employee further testified that plaintiff told him that she was leaving Clark and MTD because of the actions of Baergen.
To establish a claim of quid pro quo sexual harassment in the workplace, a plaintiff must demonstrate, by a preponderance of the evidence, that (1) he or she was subjected to unwelcome sexual conduct or communications as described in the statute, and (2) that the employer or the employer's agent used submission to or rejection of the proscribed conduct as a factor in a decision affecting employment. Chambers, supra at 310, 614 N.W.2d 910, quoting Champion v. Nationwide Security, Inc., 450 Mich. 702, 708-709, 545 N.W.2d 596 (1996). The issue presented to us is whether there was sufficient evidence to create a factual issue regarding whether plaintiff's rejection of Baergen's advances was a significant factor in employment *262 decisions concerning plaintiff, such that the quid pro quo sexual harassment claim against MTD should proceed to trial.
Because this claim is against MTD, the evidence must be viewed in the context of adverse employment actions tied directly to MTD, as opposed to Clark. This does not, however, mean that Baergen's Clark-related actions cannot be considered as circumstantial evidence of his intent and motivation for making MTD decisions affecting plaintiff. There was evidence of a reduction of plaintiff's MTD duties and responsibilities and a significant reduction in salary in close temporal proximity to plaintiff's rejection of Baergen's advances and desire to rekindle the prior sexual relationship. This, along with the extensive evidence of verbal abuse after October 1999, the letter drafted by Baergen following the "old friends" dinner, and the Clark-related adverse employment decisions, provided circumstantial evidence of a significant causal connection between the unwelcome communication and Baergen's MTD employment decisions, sufficient to show that any reasons for the decisions may have been a pretext and sufficient to survive summary disposition.
To establish a claim of hostile environment sexual harassment in the workplace, a plaintiff must demonstrate, by a preponderance of the evidence, that: (1) the employee belonged to a protected group; (2) the employee was subjected to conduct or communication on the basis of sex; (3) it was unwelcome sexual conduct or communication; (4) the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with the employee's employment or created an intimidating, hostile, or offensive work environment; and (5) respondeat superior. Chambers, supra at 311, 614 N.W.2d 910, quoting Radtke v. Everett, 442 Mich. 368, 382-383, 501 N.W.2d 155 (1993).[13] The issue presented to us on this claim is whether there was evidence, sufficient to survive summary disposition, showing the existence of a hostile work environment in relation to plaintiff's MTD employment, such that the claim against MTD should proceed to trial.
Clearly, there was sufficient evidence of a hostile work environment predicated on abusive behavior closely following the rejection of Baergen's unwelcome attempt to resume a sexual relationship and predicated on Baergen's numerous comments to plaintiff that were of a sexual nature and that questioned her sexual activities. See Haynie, supra at 309, 664 N.W.2d 129. The more difficult issue is whether there was evidence of a hostile "MTD" work environment. Defendants argue that there was no actual MTD work environment, and alternatively, because plaintiff worked out of her home, and because there *263 was no evidence of verbal abuse and angry outbursts at her home, there can be no claim for a hostile work environment. We disagree. While the evidence indicated that Baergen's intimidating, hostile conduct and communications occurred on the premises at Clark, there was evidence that MTD work was being performed at Clark by plaintiff and Baergen on a regular basis. Essentially, the Clark and MTD work environments were one and the same. As the trial court noted, Baergen was wearing two hats, and those hats, including the MTD hat, were being worn on Clark's premises. Summary dismissal was not appropriate.
Finally, in regard to the retaliation claim against both MTD and Baergen, there was sufficient evidence to survive summary disposition. The issue presented to us on this claim is whether there was sufficient evidence to create a factual issue regarding whether plaintiff's complaint to Fraser had a causal connection to adverse employment actions, such that the retaliation claim against MTD and Baergen should proceed to trial. See DeFlaviis, supra at 436, 566 N.W.2d 661.
With respect to Baergen, the close temporal proximity between the January-February 2000 complaint to Fraser and the verbal abuse, berating conduct, and adverse or negative employment decisions, whether related to MTD or Clark, along with the cryptic October 1999 letter that could be interpreted as threatening retribution, provided circumstantial evidence of a significant causal connection between the complaint and adverse employment actions, sufficient to show that any reasons for the employment decisions may have been a pretext and sufficient to survive summary disposition.
With respect to MTD, while the adverse employment actions are somewhat more attenuated and the evidence not as strong as the correlation between the Fraser complaint and the adverse employment actions affecting the Clark employment, there was sufficient evidence to survive summary disposition, where, considering the totality of the circumstances already explored at length in this opinion, a connection could be made between the complaint and the reduction in plaintiff's MTD duties and salary.[14]
We reject defendants' argument that plaintiff did not engage in protected activity because she did not specify the sexual nature of Baergen's misconduct when speaking to Fraser. MCL 37.2701(a) prohibits retaliation where a party lodges a charge or a complaint about a violation of the CRA. While we acknowledge *264 that plaintiff's deposition testimony did not specify sexual misconduct, MCL 37.2103 and MCL 37.2202 prohibit sexual harassment and discriminatory practices, and plaintiff testified that she expressly communicated to Fraser, an attorney, that she was being harassed and discriminated against by Baergen. In McLemore, supra at 396, 493 N.W.2d 441, this Court, addressing a similar issue, stated:
In Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1312-1314 (C.A.6, 1989), the federal court of appeals decided that the Civil Rights Act did not protect from retaliation an employee who had merely expressed concern to his employer about possible discrimination. We strongly disagree with this interpretation of the act. Regardless of the vagueness of the charge or the lack of formal invocation of the protection of the act, if an employer's decision to terminate or otherwise adversely effect an employee is a result of that employee raising the spectre of a discrimination complaint, retaliation prohibited by the act occurs. We will not interpret the act to allow employers to peremptorily retaliate against employees with impunity.
Here, regardless of plaintiff's failure to formally invoke protection under the CRA while speaking with Fraser, her claims of demeaning conduct and communication, harassment, and discrimination by a male boss, especially when made to an attorney, minimally created a factual issue whether plaintiff raised the specter of a discrimination complaint and was thus engaged in protected activity.[15]
DOCKET NO. 243795
A. Standard of Review
The determination of the existence of a conflict of interest is a fact question that is reviewed under the "clearly erroneous" standard of MCR 2.613(C). Buchanan v. City Council of Flint, 231 Mich.App. 536, 547, 586 N.W.2d 573 (1998); People v. Doyle, 159 Mich.App. 632, 641, 406 N.W.2d 893 (1987), modified on other grounds (On Rehearing), 161 Mich.App. 743, 411 N.W.2d 730 (1987). A trial court's findings of fact are clearly erroneous only where we are left with a definite and firm conviction that a mistake has been made. *265 Samuel D Begola Services, Inc. v. Wild Bros., 210 Mich.App. 636, 639, 534 N.W.2d 217 (1995). The application of "ethical norms" to a decision whether to disqualify counsel is reviewed de novo. General Mill Supply Co. v. SCA Services, Inc., 697 F.2d 704, 711 (C.A.6, 1982).
B. Attorney Disqualification
Clark challenges the disqualification of counsel by arguing that the Michigan Rules of Professional Conduct (MRPC) permit an attorney and client to limit the scope of representation, as was done here. Clark also argues that any further representation was conditioned on the lack of any conflict of interest. Clark insists that on the basis of the initial discussion with Baergen concerning representation and the allegations in the complaint, it had no information to conclude that a conflict existed or potentially existed, and it lacked the time to make an independent investigation before the filing deadline. Clark, relying on Restatement of the Law Governing Lawyers, § 132, further argues that ethics rules expressly permit an attorney to seek and rely on a client's waiver of a conflict of interest or potential conflict of interest in advance of representation, where the attorney is offering representation as an accommodation to an existing client. Clark also maintains that support for upholding Baergen's agreement to abide by the terms of the representation is found in the fact that Baergen knew about a possible conflict and was not forthcoming and signed the acknowledgement anyway, especially where the document fully informed Baergen of the situation and possibility that Clark's counsel would have to withdraw representation. According to Clark, a lawyer should not be disqualified for a conflict of interest in a matter for which the allegedly aggrieved former client has executed a voluntary waiver of a conflict of interest. Finally, Clark argues that the limited engagement of representation was not substantially related to the cross-claim filed eight months later, which cross-claim was based on facts adduced after the representation concluded.
Defendants first argue that this Court lacks jurisdiction to hear this issue as Clark lacks standing. The argument is predicated on MCR 7.203 and the requirement that an appeal be taken only by an aggrieved party. Defendants maintain that, because Clark settled the lawsuit with plaintiff after this Court granted leave, Clark is no longer a party with an interest in the subject matter of the litigation. Defendants assert that Clark's legal rights are no longer invaded, nor does it have a pecuniary interest that is being adversely affected. Defendants' appellate brief notes that Clark has already commenced an independent action against Baergen and MTD in the Oakland Circuit Court, File No. 03-050254-CZ. Finally, defendants argue that, regardless of the issue of jurisdiction, the trial court's ruling was sound given that Clark's original counsel sought to add a cross-claim against defendants, and defendants never waived any conflict of interest nor consented to counsel taking an adverse action against them.
We first turn to the issue of standing and jurisdiction. This Court in Dep't of Consumer & Industry Services v. Shah, 236 Mich.App. 381, 385, 600 N.W.2d 406 (1999), stated:
To have standing to appeal means that a person must be "aggrieved" by a lower body's decision. MCR 7.203(A). This Court has defined the term "aggrieved party" as "`one whose legal right is invaded by an action, or whose pecuniary interest is directly or adversely affected by a judgment or order. It is a party who has an interest in the *266 subject matter of the litigation.'" [Citations omitted.]
While it is true that Clark settled the litigation with plaintiff, the order of disqualification issued by the trial court clearly indicates that the order was not limited to the litigation at hand but applied equally to any prospective litigation that Clark may commence in the future against defendants, which was a near certainty and has apparently occurred. Were Clark to use the services of disqualified counsel in a subsequent action against defendants, we opine that the doctrine of collateral estoppel would require the court in the subsequent action to recognize and apply the disqualification order entered in this case. At that point, Clark would no longer be in a position to challenge the underlying disqualification order. Accordingly, Clark's legal right to select counsel of its choosing has been invaded regardless of the settlement with plaintiff. Although it might be argued that the matter has become moot in light of the Clark litigation against defendants with new counsel, Clark could still choose to substitute counsel, and it cannot be stated with definitiveness that other actions by Clark against defendants will not occur.
Next, we address the substance of Clark's arguments. "The party seeking disqualification bears the burden of demonstrating specifically how and as to what issues in the case the likelihood of prejudice will result." Kubiak v. Hurr, 143 Mich.App. 465, 471, 372 N.W.2d 341 (1985) (citations omitted). MRPC 1.2(b) provides that "[a] lawyer may limit the objectives of the representation if the client consents after consultation." Therefore, the actions of Clark's counsel to limit representation of defendants to the filing of an answer and affirmative defenses and thereafter only to the extent that no conflict was discovered was well within the confines of the MRPC.
MRPC 1.9 provides, in relevant part:
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.
* * *
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client.
Clark's counsel formerly represented Baergen and MTD and sought to continue representing another client, Clark, in the same matter. Considering that the motion for leave to add a cross-claim was denied, and the lawsuit proceeded against all named defendants with the question being Clark's and defendants' liability to plaintiff for the alleged CRA violations, we question whether Clark's interests were materially adverse to defendants for purposes of the particular suit and issues presented. Nonetheless, because Clark evidenced an intent to file suit against defendants, and because the trial court's disqualification order is not limited to the CRA suit, it can be concluded that Clark's interests are indeed materially adverse to defendants' *267 interests. The question becomes whether defendants consented after consultation and, if so, was disqualification still required.
We find that Clark's counsel fully explained the nature of the limited representation, filing an answer and affirmative defenses, and the parameters that would guide any further representation, i.e., the lack of any conflict of interest. Baergen specifically agreed and consented that if a conflict were discovered, counsel could continue representing Clark. Therefore, consistent with MRPC 1.9(a), there was consent after consultation. While we recognize that consent was given before a conflict of interest was revealed, the written agreement anticipated the possibility of such a conflict, and Baergen agreed that if a conflict arose, counsel could maintain representation of Clark. We further acknowledge that the consultation did not involve a discussion by counsel of the particulars of a conflict of interest for which consent was sought, as no conflict had yet been revealed to counsel. However, Baergen himself was obviously aware of the history and nature of MTD and his non-compete agreement with Clark, but he still executed the retention agreement, approving of Clark's continued representation by counsel even in the face of a conflict of interest.
Further, there was no evidence that Clark's counsel used any confidential information obtained through the limited representation to the disadvantage of defendants. If indeed counsel had done so, the likelihood is that the motion for leave to file a cross-claim would have been filed soon after representation was terminated. Rather, the motion to add a cross-claim was filed eight months later and it was predicated on deposition testimony garnered long after representation ceased. There is no indication in the record that counsel obtained relevant and damaging information during the limited representation that was not subsequently revealed through Baergen's own deposition testimony. We see no ethical dilemma in allowing counsel to continue representing Clark in matters against defendants. Defendants failed to sustain their burden to show grounds for disqualification. Kubiak, supra at 471, 372 N.W.2d 341. As our Supreme Court stated in Smith v. Arc-Mation, Inc., 402 Mich. 115, 118, 261 N.W.2d 713 (1978):
The trial court ... and the Court of Appeals appear to be saying that if any arguable question can be raised regarding the propriety of a lawyer continuing to appear in a case, an order can be obtained disqualifying that lawyer. That constitutes, in our opinion, a dangerous doctrine. It puts in the hands of an adversary the ability to force an opponent to change counsel if the adversary can advance any arguable grounds in support of disqualification.
We fully agree and conclude that the trial court erred in granting defendants' motion for disqualification.[16]
III. CONCLUSION
We affirm in part and reverse in part the grant of summary disposition in Docket No. 248124 and remand for further proceedings. The trial court erred in finding no genuine issue of material fact regarding the sexual harassment claims and retaliation claim against MTD. The trial court did not err in finding that Baergen could not *268 be held individually liable for the sexual harassment claims. But the court erred in ruling that Baergen could not be held individually liable for a claim brought under the antiretaliation provision of the CRA. Further, the trial court erred in finding that there was no issue of material fact with respect to the retaliation claim against Baergen.
In Docket No. 243795, we reverse the order disqualifying Clark's counsel because there was a lack of evidence showing a conflict of interest or improper use of confidential information requiring disqualification, and because Baergen expressly consented to counsel's continued participation should a conflict be discovered.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
NEFF, J., concurred.
KIRSTEN FRANK KELLY, P.J. (Concurring in part and dissenting in part).
I respectfully dissent from the majority's decision that the trial court erred in granting summary disposition of plaintiff's retaliation claim against defendants MTD Systems, Inc., and Herman Baergen. First, plaintiff did not properly plead a retaliation claim under the CRA. Second, even if she had properly pleaded a retaliation claim, she failed to establish that she was engaged in a protected activity under the CRA. Third, plaintiff failed to establish a causal connection between the telephone calls to Brian Fraser and the adverse employment action. Finally, within the context of employment discrimination, the plain language of CRA, read as a whole, does not provide a cause of action against individuals under either article 2 or article 7.
I. Standard of Review
"The decision to grant or deny summary disposition is a question of law that is reviewed de novo." Veenstra v. Washtenaw Country Club, 466 Mich. 155, 159, 645 N.W.2d 643 (2002). "The interpretation and application of a statutory provision is a question of law that is reviewed de novo by this Court." Id. The following rules apply to judicial interpretation of the CRA:
We read the CRA in light of the primary goal of judicial interpretation, which is to ascertain and give effect to the intent of the Legislature. If the plain and ordinary meaning of a statute is clear, judicial construction is neither necessary nor permitted. We may not speculate about the probable intent of the Legislature beyond the words expressed in the statute. If a statute provides its own glossary, the terms must be applied as expressly defined. When reasonable minds may differ with respect to the meaning of a statute, the courts must look to the object of the statute and the harm it is designed to remedy and apply a reasonable construction that best accomplishes the purpose of the statute. [Barrett v. Kirtland Community College, 245 Mich.App. 306, 313-314, 628 N.W.2d 63 (2001) (citations omitted).]
II. Retaliation
To establish a prima facie case of retaliation under MCL 37.2701(a), a plaintiff must show:
(1) that the plaintiff engaged in a protected activity, (2) that this was known by the defendant, (3) that the defendant took an employment action adverse to the plaintiff, and (4) that there was a causal connection between the protected activity and the adverse employment action. [Meyer v. Centerline, 242 Mich. *269 App. 560, 568-569, 619 N.W.2d 182 (2000).]
I agree with the majority that plaintiff's complaint is "fairly cursory." Although the word "retaliation" appears in Count I, the term is merely used to describe conduct that plaintiff identifies as sexual discrimination in violation of the CRA. More specifically, the word "retaliation" appears three times in Count I of plaintiff's complaint:
22. Plaintiff was sexually harassed and retaliated against by defendants' agent and employee, Defendant Baergen, throughout the course of her employment.
23. This sexual harassment and retaliation included, but is not limited to, unwelcome comments and conduct of an offensive and sexual nature directed at plaintiff, the creation of a hostile work environment, as described herein and constructively terminating plaintiff's employment withholding pay commissions due to her, based on her refusal to engage in a sexual relationship with Defendant Baergen.
* * *
25. The conduct of defendants' agent and employee in sexually harassing and retaliating against plaintiff constitutes sexual discrimination in violation of MCLA 37.2101 et seq.
The alleged sexual harassment identified in Count I falls directly within MCL 37.2103:
(i) Discrimination because of sex includes sexual harassment. Sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions:
* * *
(ii) Submission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual's employment ....
(iii) The conduct or communication has the purpose or effect of substantially interfering with an individual's employment....
While reference to a specific statutory provision is not required, plaintiff did not reference MCL 37.2701, which could have put defendants on notice that retaliation was being pleaded. More importantly, however, plaintiff did not allege that she was engaged in a protected activity or that a causal connection existed between the protected activity and the adverse employment action. Instead, plaintiff simply alleged quid pro quo and hostile work environment sexual harassment, two types of sexual discrimination prohibited by the CRA. As such, the complaint was insufficient to put defendants on notice that a retaliation claim was also being pleaded.
III. Protected Activity
I also disagree that the two telephone calls to Fraser constituted protected activity. MCL 37.2701 prohibits retaliation or discrimination against a person "because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act." (Emphasis added.)
In assessing whether plaintiff has established a prima facie case, the first inquiry is whether she engaged in protected activity sufficient to satisfy the first element. Plaintiff testified that she told Fraser:
I felt that I was being harassed. I felt that I was being pushed out, and I wanted some help. I didn't think I could handle it.
*270 * * *
I told him several instances with Herman where he had been out of line. He was disputing agreements that we had made.
* * *
I told him about the swearing. I told him about the what I felt was unfair treatment and the argumentative nature that I was being treated with.
The entire conversation lasted approximately two minutes and plaintiff never indicated that she was being sexually harassed. With regard to the second call, plaintiff testified that she asked Fraser how the conversation went with Baergen. When Fraser indicated that Baergen said there was no problem, plaintiff told Fraser he was misinformed. Again, plaintiff did not indicate that she was being sexually harassed. An employee "must do more than generally assert unfair treatment." Barrett, supra at 318-319, 628 N.W.2d 63. An employee "must clearly convey to an objective employer that the employee is raising the specter of a claim of unlawful discrimination pursuant to the CRA." Id. at 319, 628 N.W.2d 63. "[G]eneric, non-sex-based" complaints are insufficient. Id. Therefore, plaintiff's two telephone conversations with Fraser were not protected activities under MCL 37.2701.
IV. Causal Connection
Even if plaintiff's telephone calls were protected activity, she failed to establish a genuine issue of fact with regard to a causal connection between the telephone calls to Fraser and the adverse employment action.
"To establish causation, the plaintiff must show that his participation in activity protected by the CRA was a `significant factor' in the employer's adverse employment action, not just that there was a causal link between the two." Barrett, supra at 315, 628 N.W.2d 63. In West v. Gen. Motors Corp., 469 Mich. 177, 184-187, 665 N.W.2d 468 (2003), our Supreme Court analyzed the requirements to establish a "causal connection" between protected activity and an adverse employment action. The Court concluded that a plaintiff "must show something more than merely a coincidence in time between protected activity and adverse employment action." Id. at 186, 665 N.W.2d 468.
In this case, there was no genuine issue of fact that plaintiff's telephone calls to Fraser were a significant factor in the employment actions taken against plaintiff. Viewing the facts in the light most favorable to plaintiff, the evidence clearly shows a long-term negative reaction to plaintiff's refusal to engage in a sexual relationship with Baergen. This activity did not cease after plaintiff called Fraser it continued in a similar and like fashion. There is absolutely no evidence that the call to Fraser had anything to do with the subsequent adverse employment action. Rather, the evidence indicates that the adverse employment action was directly attributable to plaintiff's rejection of Baergen's initial proposition as she specifically alleges in paragraph 23 of her complaint.
V. Individual Liability
Finally, in the context of employment discrimination, the CRA does not provide a cause of action for retaliation against individuals under either article 2 or article 7.
"We construe an act as a whole to harmonize its provisions and carry out the purpose of the Legislature." Macomb Co. Prosecuting Attorney v. Murphy, 464 Mich. 149, 159, 627 N.W.2d 247 (2001). (Emphasis added.) The CRA is composed of eight articles that serve distinct purposes. Article 1 consists of definitions that apply to the entire act. The discriminatory *271 actions prohibited by the CRA are set forth in articles 2 through 5, which individually contain definitions and rules only applicable to the type of discrimination addressed in that particular article: article 2 prohibits employment discrimination, article 3 prohibits discrimination in places of public accommodation, article 4 prohibits discrimination in educational institutions, and article 5 prohibits housing discrimination. There are three remaining articles: article 6 establishes the civil rights commission and its procedures, article 7 prohibits retaliation against a person who has taken action in opposition to a violation of the CRA, and article 8 provides additional rules for claims brought under the CRA.
The majority correctly asserts that this Court has construed article 2 to permit claims of employment discrimination to be brought only against employers, not individuals. Jager v. Nationwide Truck Brokers, Inc., 252 Mich.App. 464, 652 N.W.2d 503 (2002). I agree that despite being strewn with references to the CRA generally, Jager only construes the language in article 2. Thus, its holding does not extend to any other article in the CRA, including article 7 that is at issue here. Nonetheless, Jager affects the application of article 7 within the context of employment discrimination claims.
MCL 37.2701 provides:
Two or more persons shall not conspire to, or a person shall not:
(a) Retaliate or discriminate against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act.
(b) Aid, abet, incite, compel, or coerce a person to engage in a violation of this act.
(c) Attempt directly or indirectly to commit an act prohibited by this act.
* * *
(e) Willfully obstruct or prevent a person from complying with this act or an order issued or rule promulgated under this act.
(f) Coerce, intimidate, threaten, or interfere with a person in the exercise or enjoyment of, or on account of his or her having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.
The majority correctly observes that MCL 37.2701 uses the term "person" rather than "employer." But I disagree with the conclusions it draws from this observation. MCL 37.2701 must be viewed in light of its purpose in relation to the CRA as a whole. It is clear that article 7 operates as an umbrella to protect people in their "exercise or enjoyment of, any right granted or protected by this act." Thus, it protects people who are pursuing claims that arise from violations of articles 2 through 5. Employment discrimination is only one of these types of violations. Clearly, article 7 does not use the term "employer" because it does not serve only to protect people in pursuance of claims that arise only under article 2. Article 7 uses the broader term "person" because it protects people in pursuance of claims, arising under articles 2 through 5, brought against various entities, including employers, places of accommodation, educational institutions, persons engaged in real estate transactions, etc.
Because article 2 specifically prohibits employers from discriminating, in the context of employment discrimination, article 7 can only apply to employers. As noted by the majority, our Supreme Court out-lined *272 the basic principles underlying a sexual harassment lawsuit in the employment context:
Through the Civil Rights Act, Michigan law recognizes that, in employment, freedom from discrimination because of sex is a civil right. MCL 37.2102; MSA 3.548(102). Employers are prohibited from violating this right, MCL 37.2202; MSA 3.548(202), and discrimination because of sex includes sexual harassment, MCL 37.2103(i); MSA 3.548(103)(i). [Chambers v. Trettco, Inc., 463 Mich. 297, 309, 614 N.W.2d 910 (2000) (emphasis added).]
Jager held that only employers are prohibited from discriminatory actions under article 2:
Read as a whole, the CRA envisions, in our opinion, employer liability for civil rights violations that result from the acts of its employees who have the authority to act on the employer's behalf rather than individual liability for those civil rights violations. Further, had our Legislature intended individual, rather than employer, liability under the CRA, it could have expressly stated so. Thus, we conclude that the CRA provides solely for employer liability, and a supervisor engaging in activity prohibited by the CRA may not be held individually liable for violating a plaintiff's civil rights. [Jager, supra at 485, 652 N.W.2d 503.]
Accordingly, in the context of employment discrimination, employers are prohibited from violating article 2 of the CRA and the "persons" prohibited from retaliating are employers.
This conclusion is further supported by the plain meaning of the term "retaliate," which is not expressly defined in the CRA. Therefore, it is appropriate to look to the common definition of retaliate. Mahnick v. Bell Co., 256 Mich.App. 154, 162, 662 N.W.2d 830 (2003). Retaliate is defined as "to return like for like ... to requite or make return for (a wrong or injury) with the like." Retaliate is synonymous with counter, repay, and reciprocate. Random House Webster's Unabridged Dictionary (2001). "To return like for like" requires that the interaction occur between two parties. The party acted against retaliates against the actor. One cannot retaliate if it was not first subject to an adverse act. In the employment discrimination context, retaliation involves an employer that is subject to a discrimination claim taking adverse action against the employee who has engaged in a protected activity with regard to that claim.
In sum, a retaliation claim cannot exist independent of a prohibited discriminatory action under articles 2 through 5 of the CRA. As such, any claim for retaliation is related to another claim of discrimination under one of those articles. Because article 2 does not permit a cause of action against individuals for sexual harassment, within the context of employment discrimination, article 7 likewise does not provide a cause of action for retaliation against individuals. The retaliation claim that plaintiff claims to have alleged was against Baergen who was not her employer, but only had authority to act on her employer MTD's behalf. In my view, the CRA does not permit such a claim.
For these reasons, I would hold that the trial court did not err in granting summary disposition of plaintiff's retaliation claim against defendants MDT and Baergen. I concur in all other aspects of the majority's decision.
NOTES
[1] Plaintiff also presented a claim for wrongful withholding of sales commissions brought pursuant to the sales representatives' commissions act (SRCA), MCL 600.2961. This claim was also summarily dismissed. But plaintiff is not challenging the dismissal on appeal. Accordingly, we shall make minimal reference to allegations and documentary evidence touching on the SRCA cause of action.
[2] We note that members of this panel have conflicting opinions on the soundness of Jager as reflected in the majority and concurring opinions issued in Elezovic. But we are in agreement that Jager represents the law in Michigan and must be followed.
[3] Now MCR 7.215(J)(1).
[4] We respectfully disagree with the analysis set forth in the partially concurring and partially dissenting opinion in this case regarding the applicability of the antiretaliation provision of the CRA, because that analysis requires one to interpret the term "person," as used in MCL 37.2701 and defined in MCL 37.2103(g), not on the basis of the statutory definition, but rather on the basis of the nature of the underlying protected activity, e.g., complaints concerning employment discrimination, housing discrimination, and educational discrimination. Hence, "person" does not always mean "person" as statutorily defined and drafted by the Legislature, sometimes it means only an "employer." This analysis is wholly inconsistent with our Supreme Court's textualist approach and continuing demand that we give meaning to the plain language of statutes and read nothing into them that is not present. See Pohutski, supra at 683-684, 641 N.W.2d 219. "The Court may not assume that the Legislature inadvertently made use of one word or phrase instead of another." Id., quoting Robinson v. Detroit, 462 Mich. 439, 459, 613 N.W.2d 307 (2000). If the Legislature intended only "employer" liability for violation of the antiretaliation provision, where the protected activity related to complaints about employment discrimination, the Legislature could have easily incorporated supportive language; it did not, and we shall not and cannot, by judicial proclamation and interpretation, imply such language. The statutory definition of "person" applies to the entire act or the act as a whole. MCL 37.2103.
[5] Although not specified by the trial court, the court's ruling that summary disposition was appropriate because Baergen could not be held individually liable is akin to a ruling that plaintiff "failed to state a claim on which relief can be granted." MCR 2.116(C)(8). A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a complaint. Beaudrie v. Henderson, 465 Mich. 124, 129, 631 N.W.2d 308 (2001). The trial court may only consider the pleadings in rendering its decision. Id. All factual allegations in the pleadings must be accepted as true. Dolan v. Continental Airlines/Continental Express, 454 Mich. 373, 380-381, 563 N.W.2d 23 (1997).
[6] We are unaware of any statutory, court rule, or case law pronouncement that requires a plaintiff to cite the specific statutory provision pursuant to which the plaintiff is proceeding in order to state a claim. MCR 2.111(B)(1) provides that a plaintiff, in alleging a cause of action, need only plead factual allegations sufficient to reasonably "inform the adverse party of the nature of the claims the adverse party is called on to defend[.]" Michigan follows the rule of general fact-based pleading. Iron Co. v. Sundberg, Carlson & Assoc., Inc., 222 Mich.App. 120, 124, 564 N.W.2d 78 (1997). Taking into consideration paragraphs 15 and 16 of the complaint, along with the retaliation references in paragraphs 22 through 25, and further considering the elements of the cause of action, we conclude that an antiretaliation cause of action under MCL 37.2701 was sufficiently pleaded.
[7] We reject plaintiff's and the trial court's contention that the protected activity, in the context of the antiretaliation provision, also included plaintiff's rejection of Baergen's sexual advances. See MCL 37.2701. That would simply constitute protected activity for the sexual harassment action.
[8] MCR 2.116(C)(10) provides for summary disposition where there is no genuine issue regarding any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law. Our Supreme Court has ruled that a trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law. Smith v. Globe Life Ins. Co., 460 Mich. 446, 454, 597 N.W.2d 28 (1999). In addition, all affidavits, pleadings, depositions, admissions, and other documentary evidence filed in the action or submitted by the parties are viewed in a light most favorable to the party opposing the motion. Id. Where the burden of proof on a dispositive issue rests on a nonmoving party, the nonmoving party may not rely on mere allegations or denials in the pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists. Quinto v. Cross & Peters Co., 451 Mich. 358, 362, 547 N.W.2d 314 (1996). Where the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted. Id. at 363, 547 N.W.2d 314.
[9] A plaintiff may establish that she was unlawfully discriminated against through indirect evidence by way of the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Hazle v. Ford Motor Co., 464 Mich. 456, 462-463, 628 N.W.2d 515 (2001). "The McDonnell Douglas approach allows a plaintiff `to present a rebuttable prima facie case on the basis of proofs from which a factfinder could infer that the plaintiff was the victim of unlawful discrimination.'" Id. at 462, 628 N.W.2d 515 (emphasis in original), quoting Debrow v. Century 21 Great Lakes, Inc. (After Remand), 463 Mich. 534, 537-538, 620 N.W.2d 836 (2001). In Hazle, supra at 464, 628 N.W.2d 515, our Supreme Court stated that the "McDonnell Douglas prima facie case does not describe the plaintiff's burden of production, but merely establishes a rebuttable presumption." The Hazle Court further stated:
[O]nce a plaintiff establishes a prima facie case of discrimination, the defendant has the opportunity to articulate a legitimate, nondiscriminatory reason for its employment decision in an effort to rebut the presumption created by the plaintiff's prima facie case. The articulation requirement means that the defendant has the burden of producing evidence that its employment actions were taken for a legitimate, nondiscriminatory reason.... If the employer makes such an articulation, the presumption created by the McDonnell Douglas prima facie case drops away.
At that point, in order to survive a motion for summary disposition, the plaintiff must demonstrate that the evidence in the case, when construed in the plaintiff's favor, is "sufficient to permit a reasonable trier of fact to conclude that discrimination was a motivating factor for the adverse action taken by the employer toward the plaintiff."... [A] plaintiff "must not merely raise a triable issue that the employer's proffered reason was pretextual, but that it was pretext for [unlawful] discrimination." [Id. at 464-466, 628 N.W.2d 515 (citations omitted).]
[10] Plaintiff testified that, along with her alleged twenty-five percent interest in MTD, Baergen held a fifty percent interest and Kleinhans held the remaining twenty-five percent.
[11] Plaintiff's response in the letter also references Baergen making changes, with plaintiff further stating: "You did it with Bob and with Bryan and now with me." The trial court latched on to this single comment in concluding that plaintiff was treated the same as other MTD employees. There is, however, no true context to the comment, or explanation what it meant. The documentary evidence does not reveal further exploration of the matter. We give the comment little, if any, weight.
[12] Defendants maintain that the complaint was silent regarding adverse actions and retaliatory acts relating to the MTD employment; therefore, no action should be permitted. A review of the complaint does in fact show, when considered in light of the documentary evidence, that the specific claims of adverse and retaliatory actions correlated with plaintiff's work for Clark. Nonetheless, there still remained sufficient general claims of adverse and retaliatory actions related to MTD. Moreover, the retaliatory actions related to plaintiff's employment with Clark can still form the basis for a retaliation claim against Baergen individually where he was a supervisor for Clark.
[13] In regard to respondeat superior and vicarious liability, the Chambers Court, after reviewing Champion and Radtke, concluded:
To summarize, an employer is strictly liable only for quid pro quo sexual harassment. In terms of the statute, this means that an agent of the employer must have used submission or rejection of unwelcome sexual conduct or communication "as a factor in decisions affecting ... employment." MCL 37.2103(i)(ii); MSA 3.548(103)(i)(ii). When the submission to or rejection of the unwelcome sexual conduct or communication has not been factored into an employment decision, but a hostile work environment has nevertheless been created because unwelcome sexual communication or conduct substantially interferes with an individual's employment, the violation can only be attributed to the employer if the employer failed to take prompt and adequate remedial action after having been reasonably put on notice of the harassment. Radtke, supra. [Chambers, supra at 313, 614 N.W.2d 910 (emphasis in original).]
[14] We opine that the trial court incorrectly attempted to draw a clean line of separation between MTD and Clark instead of looking at the overall picture and the overlapping nature of the companies as it related to the causes of action. Actions and communications that could be relegated to plaintiff's employment with Clark could nonetheless constitute circumstantial evidence to support a finding of a causal connection between protected activity and adverse employment actions by MTD, where Baergen was a central character in both companies. In the same vein, we respectfully disagree with the position taken in the partially concurring and partially dissenting opinion, asserting that the adverse employment action was directly and solely attributable to plaintiff's alleged rejection of Baergen's proposition. We decline to find, as a matter of law, that the alleged adverse employment action can definitively be tied solely to Baergen's proposition; any point of demarcation is much too clouded. This issue is for a jury to decide, especially considering that the evidence suggests that the severity of Baergen's alleged actions, including removing plaintiff as sales manager, occurred after the Fraser's complaints and closer in time to the complaints than the Baergen proposition. We further note that paragraphs 15 and 16 of the complaint alleged adverse employment actions flowing from the Fraser complaints.
[15] We acknowledge this Court's decision in Mitan v. Neiman Marcus, 240 Mich.App. 679, 681-682, 613 N.W.2d 415 (2000), in which the panel, after citing McLemore, concluded that the plaintiff's written complaints to a human resource director were not sufficient where the complaints spoke only of job discrimination and harassment without stating, implying, or raising the specter of a handicapper violation. The Court found further support for its decision in the plaintiff's deposition testimony, which indicated that she admitted to the human resource director that she was treated the same as everyone else. Id. at 682-683, 613 N.W.2d 415. The short opinion per curiam contains no discussion of background facts, so we cannot ascertain the nature of the handicap and the knowledge that others may have had of the particular handicap. We find here that the specter of a sexual harassment discrimination suit was raised or could be implied where a female employee complained to an attorney-executive of discrimination, harassment, and demeaning conduct and communication by a male boss. Further, plaintiff never conceded that she was not treated differently. Considering the language of McLemore, we conclude, while viewing the evidence in a light most favorable to plaintiff, that plaintiff, when speaking to Fraser, was engaged in protected activity under MCL 37.2701. Defendants' reliance on Barrett, supra, is misplaced because there the specter of gender discrimination could not be discovered or implied in that the plaintiff was male as was the employee whose actions plaintiff challenged, and where this Court found that the true nature of the CRA action was predicated on romantic jealousy over a mutual girlfriend. Id. at 319-322, 628 N.W.2d 63.
[16] In further support of our ruling, we direct attention to In re Rite Aid Corp. Securities Litigation, 139 F Supp 2d 649 (E.D.Pa., 2001), in which the federal district court found no basis for disqualification under comparable factual circumstances and ethics rules. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919420/ | 660 So. 2d 529 (1995)
STATE of Louisiana, Plaintiff-Appellee,
v.
Joe HUFF and James Huff, Defendants-Appellants.
No. 27,212-KA.
Court of Appeal of Louisiana, Second Circuit.
August 23, 1995.
*531 Randy E. Collins, Shreveport, for Joe Huff, appellant.
Thomas A. Wilson, Shreveport, for James Huff, appellant.
Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, W. Stanley Lockard and Catherine M. Estopinal, Assistant District Attorneys, for appellee.
Before MARVIN, BROWN, and WILLIAMS, JJ.
MARVIN, Chief Judge.
After being convicted by a jury of second degree murder of a Shreveport cab driver, the brothers Joe and James Huff appeal, assigning ten errors including the sufficiency to convict each brother and the trial court's denial of Joe Huff's motion for severance.
We affirm.
DISCUSSION
In criminal appeals, we review the evidence in the light that most favorably supports the jury verdict. In that light we determine whether the evidence, direct and circumstantial, is sufficient to allow a rational juror to conclude beyond a reasonable doubt that the State proved every element of the crime of which the accused was convicted. LRS 15:271, 15:438; Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Jacobs, 504 So. 2d 817 (La.1987).
The standard of review for the sufficiency of circumstantial evidence to convict is not a stricter standard than for the sufficiency of direct evidence to convict, but is simply a method that directs the trier of fact and the reviewing court to question, objectively, or to focus on, the reasonableness of the asserted or arguable hypotheses of innocence. If the trier of fact or the reviewing court finds the asserted or arguable hypotheses of innocence unreasonable, circumstantial evidence is sufficient to convict beyond a reasonable doubt. LRS 15:271, 15:438, Jacobs, supra; State v. Lott, 535 So. 2d 963 (La.App. 2d Cir.1988).
FACTS
We summarize the factual conclusions the jury could have drawn: About 11:36 p.m. on August 3, 1992, a Yellow Checker Cab Company dispatcher received a telephone call requesting that a cab be sent to the Exxon station at Hearne Avenue and Interstate 20 in Shreveport. Cab 126, driven by the victim, Daniel Gardner, was directed at 11:48 p.m. to pick up that fare. In his shirt and *532 pants pockets Gardner kept a small amount of money with which to make change for fares. He kept a greater amount of money and larger bills in a bank bag concealed beneath the carpet under the driver's seat of his cab.
About 11:41 p.m. on that night, James Huff successfully placed a collect telephone call from that Exxon pay telephone to a female friend, Tracey Coleman, who with her sister had been with the Huffs at their Desoto Street apartment in Shreveport earlier that night. James Huff told her during the course of the 10-15 minute telephone conversation that Joe Huff had telephoned for a cab. When Gardner's cab arrived at the Exxon station near midnight, James, wearing a gray and white striped shirt, entered the front passenger seat, while Joe got in the back seat. Joe Huff had been seen at the apartment by others earlier that night, and as late as 11:10 p.m., handling or holding a black revolver in the presence of James who wore a gray and white striped shirt. The brothers requested and obtained several cigarettes from Tracey Coleman's sister at that time.
On that night, the Exxon station attendant recognized Joe and James Huff conversing on the station pay telephone and getting in the cab when it arrived, they being patrons of that station who lived on Desoto Street about six blocks away.
Shortly before midnight on August 3 an off-duty city police officer saw Gardner's cab parked on the northern-most westbound shoulder of I-20, west of the Hearne Avenue-I-20 Exxon station. The cab was between the Hearne Avenue and Jewella Avenue intersections with I-20. Two men, who were seen and described by the officer and corresponding to the physical appearance of the Huffs, were standing on the passenger side of the parked cab. As the off-duty police witness drove closer, the two men ran northerly off I-20, jumping the fence of the state fairgrounds near the vicinity of Hudson Street, a major north-south traffic artery that traverses underneath I-20 and enters the state fairgrounds. Desoto Street, where the Huffs resided in a garage apartment at municipal number 2825, is south of the fairgrounds and I-20, about six blocks from the Hearne Avenue-I-20 Exxon station. The fairgrounds are immediately north of I-20 and the Exxon station.
About midnight on August 3 another cab driver for the Yellow Checker Cab Company, Ron Woods, who knew Gardner and his cab number, was driving westerly on I-20 with his adult stepdaughter who was also employed by the cab company. Seeing Gardner's cab stopped with its front and rear right side (passenger) doors open and the windshield broken, he stopped his cab and backed it up to investigate. Woods's stepdaughter found Gardner bloody and slumped over in the front seat. She used Woods's cab radio to cause the company dispatcher to alert police and medical personnel. The bank bag Gardner routinely kept beneath his seat was never found.
Shreveport police received telephone notification of the incident at 12:04 a.m. August 4. Police photos show the cab windshield shattered by a bullet hole, the disarray of carpet and area beneath the driver's seat, and the location of a fingerprint of James Huff on the cab.
From tire tracks off the shoulder of I-20 leading to the parked cab, police witnesses established that the cab left the highway and traveled some 240 feet and around a light standard before returning toward the highway and stopping on and near the paved shoulder at a small pile of cement or similar debris. The cab dispatchers led police to continue their investigation where Gardner was last dispatched, the Hearne AvenueI-20 Exxon station. Thereafter they began searching for James and Joe Huff.
Bullets or fragments thereof were obtained from Gardner's head and the cab, all of similar caliber and apparently fired from a .357 or .38 caliber revolver. The fingerprint on Gardner's cab matched James Huff's right middle fingerprint. A particle having characteristics of gunshot residue was found on James Huff's left hand when the appropriate test was made after the Huffs were arrested.
Gardner was shot twice in the back of his head, the fatal bullet being extracted therefrom. The other bullet exited his head. Police *533 produced the gray and white striped shirt, found on Hudson Street and stained with blood consistent with Gardner's blood, that witnesses identified as the shirt being worn by James Huff before and when he entered the cab. The bloodstains on the shirt were inconsistent with the blood of the Huffs.
Hudson Street is the only street in the fairgrounds area that allows a vehicle or pedestrian to cross underneath I-20 that is not an I-20 traffic interchange. The two men who were seen by the off-duty police officer at the cab shortly before midnight on August 3 ran north and jumped the fence, entering the fairgrounds near, and running in the direction of, Hudson Street. The shirt was found on Hudson Street at the I-20 underpass. The Huffs' garage apartment is south of the fairgrounds and I-20.
The Huffs were arrested uneventfully the morning of August 4 at their garage apartment on Desoto Street. Neither made any detailed statement to the police nor testified before the jury.
SUFFICIENCY OF THE EVIDENCE ASSIGNMENTS ONE, TWO AND SIX, IN PART
When the assignments include the sufficiency of the evidence to convict and other errors, the reviewing court is directed to review the sufficiency assignment first. State v. Hearold, 603 So. 2d 731 (La.1992).
To convict of second degree murder the State was required to prove the Huffs killed Daniel Gardner either when they had a specific intent to kill or to inflict great bodily harm or when they were engaged in the perpetration or attempted perpetration of an armed robbery, even though without an intent to kill or inflict great bodily harm. LRS 14:30.1 A(1) and (2). The State also had to prove beyond a reasonable doubt that each brother was "concerned in" the commission of the armed robbery so as to be a "principal" and committing each element of that crime. LRS 14:24. A principal to an armed robbery in which the victim is fatally shot by another may be convicted of second degree murder. State v. Stokes, 26,003 (La.App. 2d Cir. 6/22/94), 639 So. 2d 395, writ denied.
The time and distance factors strongly indicate that on the night of August 3-4, 1992, the Huffs intended to shoot and to rob a cab driver quickly in the immediate vicinity of the apartment where they lived. As late as 11:10 p.m. on that night the brothers bummed cigarettes at their apartment from one of two female visitors, while one brother held or handled a revolver. About 11:36 p.m. on that night they telephoned for a cab to come to the Exxon station only six blocks from their apartment. They waited for the cab while making other telephone calls from that location. The cab driver was dispatched to proceed to the Exxon station at 11:48 p.m. When the cab later arrived between 11:48 and 11:55 p.m., James got in the front seat and Joe got in the back seat and the cab drove away.
Gardner drove the cab away from the Hearne AvenueI-20 Exxon station and entered I-20, heading west. After driving only a few hundred feet on I-20 westbound, Gardner was shot twice in the back of his head with a .357 or .38. caliber pistol. The shots were fired from the back seat of the cab. The cab left the paved highway and traveled some 240 feet on the shoulder and around a light standard before turning back toward the paved highway and stopping partly on the paved shoulder not far from the Exxon station. This fact strongly indicates that one or the other Huff steered and stopped the cab. The cab was seen in its parked location about 11:55 p.m. by an off-duty police officer. The two men who were described as resembling Joe and James Huff ran north from the cab, jumping the fence into the fairgrounds near the Hudson Street underpass of I-20.
Shortly thereafter Woods and his stepdaughter, after stopping to investigate, caused the cab dispatcher to alert police. Gardner was still bleeding. The police were alerted at 12:04 a.m. The carpet and area beneath the driver's seat were in "disarray" and Gardner's bank bag, always with him when he worked and usually concealed under the carpet beneath the driver's seat, was missing. James Huff's striped shirt was discarded *534 and was later found on the Hudson Street underpass, at a location within a few blocks of the apartment on Desoto Street where the Huffs resided. The discarded shirt was stained with blood analytically proved consistent with Gardner's blood and inconsistent with the blood of either James or Joe Huff. The police search found James Huff's bloodstained shirt, but did not find Gardner's bank bag or the murder weapon.
The fact that police found that Gardner's shirt pocket and pants pocket contained some cash, less than $100, and the fact that the two men who rapidly fled and jumped the fence as the off-duty officer drove by, strongly indicate that the armed robbers intended to complete the robbery-killing as quickly as possible and to flee the scene as close to their apartment as possible.
On this record, we conclude the evidence, direct and circumstantial, was legally sufficient to convict beyond a reasonable doubt both James and Joe Huff, as principals, of the crime of second degree felony murder, the killing of Daniel L. Gardner during the perpetration of the armed robbery of Daniel L. Gardner. The jury could have concluded beyond a reasonable doubt that Joe Huff fired bullets from a black revolver when in the back seat of the cab into the head of Gardner and that James Huff, who got Gardner's blood on his shirt when he had to lean over the fatally wounded Gardner and steer and stop the cab and search for and obtain Gardner's bank bag from beneath the driver's seat, got in the front seat of the cab at the Exxon station for that purpose.
ADMISSIBILITY ASSIGNMENTS ASSIGNMENTS THREE, EIGHT, AND TEN
Hearsay. Defendants assign as error the trial court's allowing the following question and answer by Tracey:
Q: Did you ask James what he was doing at that Exxon station?
A: He said that Joe had called a cab.
The defense characterizes this as double hearsay, the first statement being what Joe said to the cab dispatcher and the second statement being James's statement to Tracey that Joe had called for a cab.
Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. LCE Art. 801C. Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided by legislation. LCE Art. 805. Because the brothers were tried jointly, we review the trial court's decision to allow this testimony with respect to each defendant separately.
Joe Huff. As to Joe Huff, the first statement was a party admission. A statement offered against a party which is his own statement is a personal admission and is not hearsay by definition. LCE Art. 801D(2)(a). James's statement to Tracey describing what Joe did immediately after he did it is a present sense impression and is an exception to the hearsay rule. LCE Art. 803(1). Tracey's testimony was properly admitted with respect to Joe Huff.
James Huff. As to James, Joe's statement, whatever it was, concerning the call for a cab is not offered for the truth of the matter asserted. It was properly admitted to show James's state of mind at the time he talked to Tracey, shortly before he was seen entering a cab. James's belief that Joe had called a cab, making it possible for the brothers to rob the driver, goes to James's intent to commit armed robbery. Thus the first statement is not hearsay with respect to James. LCE Art. 801C. As discussed above, James's statement to Tracey was a present sense impression and was properly admitted as an exception to the hearsay rule. LCE Art. 803(1). Other witnesses established that a cab was requested and dispatched to the Exxon station and was entered by Joe and James Huff. Any assumed error is thus harmless. This assignment has no merit.
Discovery Violation. The State introduced three slips for fares to which cab 126 was dispatched on August 3. All three were obtained from the Yellow Checker Cab Company *535 the day following the murder by police detective Michael Price. The first, referring to the request for a cab at the Exxon station at Hearne and I-20, was identified and introduced through the testimony of Yellow Checker's operator and dispatcher from that night.
The Huffs argue that during discovery the State only disclosed the existence of the first dispatch slip. They assert that they were not given the other two dispatch slips, a violation of the rules of discovery in the Code of Criminal Procedure. They claim the trial court committed error by allowing the introduction of the two undisclosed slips.
The State had a duty to disclose these slips to the defendants under their motion for discovery. CCrP 718. Being a continuing duty, the State was required to notify the defendants promptly once it had decided to use the two undisclosed slips. CCrP 729.3.
The failure of the State to comply with discovery procedure does not automatically mandate reversal. The defendants must show prejudice in order for their convictions to be reversed. State v. Ray, 423 So. 2d 1116 (La.1982); State v. Williams, 25,835 (La.App. 2d Cir. 2/23/94) 632 So.2d. 893. Where the defendants have been lulled into a misapprehension of the strength of the State's case by the failure to disclose fully, such a prejudice may then constitute reversible error. State v. Sweeney, 443 So. 2d 522 (La.1983); State v. Downing, 451 So. 2d 1221 (La.App. 2d Cir.1984). We are required to review the record to determine whether any prejudice which may have resulted from the non-compliance caused the trier of fact to reach the wrong conclusion. Sweeney, supra; Williams, supra.
The State asserts these slips were intended to be used, if necessary, for rebuttal evidence. Once the State decided to use the slips, it had a duty to disclose that intention to the defense. The slips were only introduced to corroborate the testimony of the operator and the dispatcher concerning the malfunction of the date stamp (July 34 [sic]) and the unlikelihood that the first slip had been confused with another from a different day. The time of day on the stamps was not in question. Although the State did violate its continuing duty to disclose, there was no prejudice to defendants by the admission of this undisclosed evidence. We find this assignment without merit.
Photographs. The Huffs argue that the coroner's photos should not have been admitted into evidence because they were shocking and overly prejudicial.
Photographs which illustrate any fact or issue in the case, or are relevant to describe the person, place or thing depicted, are generally admissible. LCE Art. 401; Stokes, supra. Autopsy photographs are admissible to corroborate other evidence establishing the cause of death, the manner in which the death occurred, and the location, severity, and number of the wounds. State v. Bourque, 622 So. 2d 198 (La.1993); State v. Harvey, 26,613 (La.App. 2d Cir. 1/25/95), 649 So. 2d 783.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. LCE Art. 403. The test for admissibility of gruesome photographs is whether the prejudicial effect of the photographs clearly outweighs their probative value. Bourque, supra; Harvey, supra.
The photos complained of were used by the coroner to explain the position and direction of the gunshot wounds. These photos, while not pleasant, are hardly gruesome or shocking. Even assuming that they may be characterized as gruesome, their probative value is not outweighed by any assumed prejudicial effect. See and compare the types of photos admitted in Bourque, supra; in State v. Perry, 502 So. 2d 543 (La.1986), U.S. cert. denied, U.S. reh. denied; and State v. Copeland, 530 So. 2d 526 (La.1988), U.S. cert. denied, U.S. reh. denied.
MOTION FOR SEVERANCE ASSIGNMENT FOUR
Joe Huff assigns as error the trial court's denial of his motion to sever. He argues that had the trial been severed, James's bloodied shirt and fingerprint would *536 have been inadmissible against him. We disagree.
Article 704 of the Code of Criminal Procedure states in pertinent part: Jointly indicted defendants shall be tried jointly unless:... (2) the court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance.
A determination as to whether to grant or to deny a severance rests in the sound discretion of the trial court. A ruling on a severance motion will not be reversed on appeal absent a clear showing that the trial court abused its discretion. State v. Prudholm, 446 So. 2d 729 (La.1984); State v. Dukes, 609 So. 2d 1144 (La.App. 2d Cir.1992), writ denied.
Contrary to Joe's assertion, the presence of James's fingerprint on the cab and the evidence concerning the blood on the shirt would be admissible if Joe were tried separately. This evidence is relevant to corroborate other evidence of who was where in the cab when Daniel Gardner was shot in the back of his head. Joe has failed to show that justice required a severance and the trial court abused its discretion. This assignment is without merit.
PREMATURE SENTENCING ASSIGNMENT FIVE
The Huffs assign as error the trial court's sentencing them the same day it denied their motions for a new trial and for post-verdict judgments of acquittal.
If a defendant convicted of a felony files a motion for a new trial, or in arrest of judgment, sentence shall not be imposed until at least twenty-four hours after the motion is overruled, unless the defendant expressly waives the delay. CCrP Art. 873.
A judgment shall not be reversed for any error which does not affect the substantial rights of the accused. CCrP Art. 921; State v. Henderson, 566 So. 2d 1098 (La.App. 2d Cir.1990). The penalty for committing second degree murder is mandatory life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. LRS 14:30.1B.
The defendants filed motions for a new trial and for post-judgment verdicts of acquittal, which were argued and denied. The defendants do not assert that they were prejudiced by the premature sentencing. Because the trial court had no discretion in the sentencing for this offense, the premature sentencing cannot be said to have affected the court's decision about what sentence to impose. We find no merit in this assignment.
CLOSING ARGUMENT ASSIGNMENT SEVEN
Here the Huffs argue the State went beyond the scope of the evidence presented and made prejudicial remarks in closing argument. Specifically they complain of the prosecutor stating what occurred when the victim was shot, that an armed robbery occurred, that the defendants could have deduced where cab drivers hid money, that the bank bag was taken from the cab, and that the defendants were destitute and needed money.
The law requires the argument to be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the State or defendant may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice. CCrP Art. 774. An appellate court should not reverse on grounds of improper closing argument unless it is thoroughly convinced the remarks influenced the jury and contributed to its verdict. Bourque, supra; State v. Eaton, 524 So. 2d 1194 (La.1988), U.S. cert. denied, U.S. reh. denied; Harvey, supra.
While the prosecution must base its conclusions and deductions in closing argument upon evidence adduced at trial, both the State and the defense are entitled to their respective conclusions as to what is or is not established by the evidence, and either may press upon the jury any view arising out of the evidence. State v. Kennon, 588 So. 2d 1348 (La.App. 2d Cir.1991); State v. Mills, 505 So. 2d 933 (La.App. 2d Cir.1987), writ denied.
*537 The remarks of which the defendants complain are reasonable conclusions which may be drawn or inferred from the facts in evidence. The arguments made were not improper.
MOTION FOR POST-VERDICT JUDGMENT OF ACQUITTAL ASSIGNMENT SIX
In this assignment, the Huffs argue that the State's improper remarks in closing led to their conviction. They assert that the evidence was insufficient to convict them, and that the trial court erred in denying their motion for post-verdict judgment of acquittal. Having found the evidence legally sufficient to convict and the closing remarks proper, we find no merit in this assignment.
LIMITATION OF CROSS-EXAMINATION ASSIGNMENT NINE
The Huffs complain of the court's limitation of their cross-examination of a witness by not allowing them to question why the witness was late to court. This witness's testimony began on one day and was to continue the next morning at 9 a.m. The witness did not appear until 10:30 a.m. The defendants wished to cross-examine him about the reason for his tardiness in order to discredit his ability to remember specific details.
The trial court stated that it believed the prejudicial effect of such testimony would outweigh the probative value, and that it "would interfere with getting at the truth of what [the witness] saw the night [of the murder]."
The court shall exercise reasonable control over the mode and order of interrogating witnesses so as to make the interrogation and presentation effective for the ascertainment of truth. LCE Art. 611A(1). A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. LCE Art. 611B. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. LCE Art. 403.
The defendants had ample opportunity to cross-examine the witness and to attack his credibility concerning his ability to remember and to recall relevant past events without delving into his reason for being late on the second day of his testimony. The defendants have not shown how they were prejudiced by the trial court's limitation. We deem the trial court's error, if any is assumed, was harmless.
ERROR PATENT REVIEW
The trial court stated, "Under Article 930.8 both men have three years to pursue any post-conviction relief remedies to which they are accorded by law." Article 930.8 states that a defendant has three years from the time the judgment and sentence become final. In accord with CCrP 930.8, the trial court is directed to give the defendants notice that the three year prescriptive period in which to apply for post-conviction relief begins to run when the conviction and sentence are final, and to place their acknowledgment thereof in the record.
DECREE
The convictions and sentences of these defendants are
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/534080/ | 892 F.2d 83
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Kathy D. ISHMAN, Plaintiff-Appellant,v.UNITED STATES POSTAL SERVICE; Paul N. Carlin, PostmasterGeneral Defendant-Appellee.
Nos. 85-2261, 87-2229.
United States Court of Appeals, Ninth Circuit.
Submitted April 26, 1989.*Decided Dec. 13, 1989.
Before CHOY, ALARCON and CANBY, Circuit Judges.
1
MEMORANDUM**
2
These two appeals arise out of Plaintiff Kathy D. Ishman's action against the United States Postal Service ("the Service") for employment discrimination. She contends that the district court erred both in failing to appoint counsel for her (No. 85-2261), and in dismissing her Amended Complaint (No. 87-2229). We affirm the refusal to appoint counsel. We affirm in part and reverse in part the dismissal of the Amended Complaint, and remand the case to the district court.
3
I. No. 85-2261: Denial of Request for Appointment of Counsel.
4
The district court had discretion in this employment discrimination case to grant Ishman counsel if it deemed such appointment just. 42 U.S.C. § 2000e-5(f)(1). We previously have noted that in exercising its discretion a district court should consider, among other things, the complainant's financial resources and efforts to secure counsel, and the merit of the claim. Brown v. Continental Can Co., 765 F.2d 810, 814 (9th Cir.1985); Bradshaw v. Zoological Society, 662 F.2d 1301, 1318 n. 43 (9th Cir.1981).
5
The district court acted within its discretion in denying appointment of counsel for Ishman. The court directed that Ishman's request be heard formally before a federal magistrate. At that hearing, Ishman testified that her annual income was approximately $22,800, and that her usual monthly expenses were approximately $900 at most. Reply Brief of Appellant, p. 39. The magistrate also evaluated the merits of Ishman's claims and found her case unpromising. Plaintiff's Excerpts of Record, p. 4. On the basis of these factors, the magistrate recommended against the appointment of counsel, and the district court accepted the recommendation. We cannot say that, in light of the information gathered by the magistrate, the district court had no choice but to appoint counsel.
6
No. 85-2261 is hereby AFFIRMED.
7
II. No. 87-2229: Dismissal of Amended Complaint.
8
A. Denial of Plaintiff's Request for Default Judgment.
9
Ishman appears to argue that the district court committed reversible error by not granting her request for a default judgment for $25,000,000 after the defendant's 3-day delay in filing reply papers in connection with the dismissal motion. The grant or denial of a default judgment is a matter for the district court's discretion. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.1980). Moreover, the Federal Rules dictate that "[n]o judgment by default shall be entered against the United States or an officer or agency thereof unless the claimant establishes a claim or right to relief by evidence satisfactory to the court. Fed.R.Civ.P. 55(e). In light of the facts that the Service was not totally deficient in defending against this suit, that the filing delay was short, that the requested judgment was very substantial, and that the court was not convinced of the merit of the claim, the district court acted well within the scope of its discretion by denying the request for default judgment.
10
B. Exclusiveness of Title VII Remedy.
11
In both her initial and amended Complaints, Ishman alleged that the Service had violated several federal statutes in its dealings with her. By an Order dated 12 August 1985, however, the district court ruled that only Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) afforded Ishman any potential remedy. This ruling was correct. Section 2000e-16 is "an exclusive, pre-emptive administrative scheme for the redress of federal employment discrimination." Brown v. General Services Administration, 425 U.S. 820, 828-29 (1976). As a federal employee alleging job-related discrimination, Ishman's sole recourse is to § 2000e-16. See White v. General Services Administration, 652 F.2d 913, 916-917 (9th Cir.1981).1
12
An important implication of reliance upon § 2000e-16--and one that was noted by the district court, see Order at 2--is that Ishman must satisfy the requirements of that section in asserting claims. Thus, she may only assert claims that have been brought before the administrative tribunal of first resort within this statutory scheme. Serpe v. Four-Phase Systems, Inc., 718 F.2d 935, 936 (9th Cir.1983) (district court's subject matter jurisdiction in Title VII cases extends only to claims previously lodged with the EEOC). The record below discloses that the only claim in her Amended Complaint that was made before the EEOC was wrongful imposition of a 90-day probationary period following her reinstatement as a postal employee in May 1983. See Supplemental Excerpts of Record, 85, 90, 94. Thus, to the extent that the district court's dismissal covered any asserted claims other than imposition of the probationary period, the dismissal is affirmed.
13
To the extent that the dismissal included the claim for wrongful imposition of the probationary period, however, the dismissal is reversed. This claim could not have been dismissed for failure to satisfy Title VII's administrative requirements. Indeed, the Service has not argued that it should have been. Instead, the Service has argued, both here and below, that the claim is moot because Ishman completed the probationary period without suffering any injury, and thus the court could grant no relief even if Ishman were to prevail on the merits. See Brief of Defendant-Appellee, pp. 14-16; Brief of Defendant in Support of Motion To Dismiss, pp. 5-7.
14
The Service moved under Rule 12(b) to dismiss Ishman's claim of wrongful imposition of the probationary period. Motion To Dismiss. In support of its motion, the Service appended the sworn affidavit of Bette Leavitt, an administrator with the Service, who has personal knowledge of Ishman's employment history. Id. The district court did not exclude the affidavit, and indeed must have relied upon it in deciding whether, for example, Ishman had suffered any uncompensated injury as a result of having held probationary status during her first three months back at work.
15
The Leavitt affidavit constitutes a "matter[ ] outside the pleadings," and, by considering it, the district court converted the defendant's motion to dismiss into one for summary judgment. See Fed.R.Civ.P. 12(b).2 The Rules dictate that when such a conversion occurs, "all parties shall be given reasonable opportunity to present all material made pertinent to a ... motion under Rule 56." Id. We have noted previously the general agreement that in these circumstances "the non-moving party must be sufficiently informed or aware" that the motion has become one for summary judgment. Garaux v. Pulley, 739 F.2d 437, 438 (9th Cir.1984).
16
Garaux further makes clear that, because Ishman was appearing pro se, it was incumbent upon the court to adhere "strictly" to the notice requirements of Rule 56(c) when it converted the defendant's 12(b)(6) motion into one for summary judgment. 739 F.2d at 439-40; see also McElyea v. Babbitt, 833 F.2d 198, 200 (9th Cir.1987) (grant of summary judgment reversed because pro se plaintiff was not given notice that motion to dismiss had been converted into summary judgment motion). Yet, there is no evidence that Ishman received such notice. Ishman should have been informed that she was now confronting a motion for summary judgment, so that she could have prepared appropriate opposition papers. We therefore remand the case to the district court so that Ishman may be given an opportunity to oppose the Service's summary judgment motion and to show, if she can, that the probation had collateral and continuing consequences. (Apparently, Ishman wishes to dispute, for example, the information in the Leavitt affidavit. See Brief of Appellant at 4.)
17
C. Award of Defendant's Costs and Disbursements.
18
Ishman argues that the district court should not have awarded the Service costs and disbursements related to its motion to dismiss. According to the Federal Rules, however, the court had the discretion to allow costs to the Service, as a prevailing party, as a matter "of course." Fed.R.Civ.P. 54(d). Our reversal necessarily vacates the award of costs; the district court may award them after a new determination of the prevailing party.
19
No. 87-2229 is hereby AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
20
Each party will bear its own costs for the appeals in No. 85-2261 and No. 87-2229.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3
1
Title VII does not bar claims of unconstitutional conduct apart from employment discrimination, Arnold v. U.S., 816 F.2d 1306, 1310-1311 (9th Cir.1987), but Ishman has alleged nothing that would fall into this category. Ishman's general allegations of harassment sound in tort and do not rise to the level of constitutional violations, see id. (post office employee's allegations of assualt and harassment are not constitutional claims)
2
Contrary to Plaintiff's contention, the district court did not err in considering an affidavit filed after the close of discovery. An affidavit in support of a party's motion is not among the discovery methods listed by the Rules. See Fed.R.Civ.P. 26(a) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2747373/ | IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 41738
STATE OF IDAHO, ) 2014 Unpublished Opinion No. 786
)
Plaintiff-Respondent, ) Filed: October 30, 2014
)
v. ) Stephen W. Kenyon, Clerk
)
DANIELLE R. CLAUSEN, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Third Judicial District, State of Idaho,
Canyon County. Hon. Molly J. Huskey, District Judge.
Order relinquishing jurisdiction, affirmed.
Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
________________________________________________
Before LANSING, Judge; GRATTON, Judge;
and MELANSON, Judge
PER CURIAM
Danielle R. Clausen pled guilty to possession of a controlled substance. I.C. § 37-
2732(c)(1). The district court sentenced Clausen to a unified term of seven years, with a
minimum period of confinement of three years. The district court suspended the sentence and
placed Clausen on probation. Thereafter, Clausen admitted to violating the terms of her
probation. The district court revoked the probation, ordered execution of the original sentence,
but retained jurisdiction. Ultimately the district court relinquished jurisdiction. Clausen filed an
I.C.R. 35 motion for reduction of her sentence, which the district court denied. Clausen appeals,
claiming that the district court erred by refusing to grant probation.
We note that the decision to place a defendant on probation or whether, instead, to
relinquish jurisdiction over the defendant is a matter within the sound discretion of the district
1
court and will not be overturned on appeal absent an abuse of that discretion. State v. Hood, 102
Idaho 711, 712, 639 P.2d 9, 10 (1981); State v. Lee, 117 Idaho 203, 205-06, 786 P.2d 594, 596-
97 (Ct. App. 1990).
The record in this case shows that the district court properly considered the information
before it and determined that probation was not appropriate. We hold that Clausen has failed to
show that the district court abused its discretion. Accordingly, the order of the district court
relinquishing jurisdiction and Clausen’s sentence are affirmed.
2 | 01-03-2023 | 10-31-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1590282/ | 14 So. 3d 1269 (2009)
Terry J. SAYLES, Sr., Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-1503.
District Court of Appeal of Florida, Second District.
July 8, 2009.
*1270 James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
FULMER, Judge.
Terry J. Sayles, Sr., appeals his judgments and sentences for various criminal offenses, specifically challenging the denial of his motion to withdraw plea after sentencing filed pursuant to Florida Rule of Criminal Procedure 3.170(l). We reverse and remand for an evidentiary hearing.
Sayles entered a no contest plea to several charges in exchange for a sentence of thirty-six months' probation with the condition that he serve eight months in jail. Because two of the offenses were driving under the influence of alcohol, the revocation of his driver's license was an issue. See § 322.28, Fla. Stat. (2007). The plea form signed by Sayles states that his sentences would "consist of ... [a] 10 year DL revocation." At the plea and sentencing hearing, the trial court addressed the issue of the revocation of Sayles' driver's license by the Department of Motor Vehicles (DMV):
DMV is going to do what it wants to do, and ... they will do administratively with the driver's license what they do regardless of what I say, sir. So, I assume it will be 10-years revocation by DMV, not 20, but I can't make you any promises about what DMV will do. They're going to get this as two convictions, so I don't even want to begin to tell you or make you promises or assurances on your plea today with respect to your driver's license. I'm not going to do anything other than say it's a 10-year DL revocation.
At other times throughout the hearing, the prosecutor, the court, and defense counsel made references to a ten-year driver's license revocation.
After sentencing, Sayles filedthrough his defense counsela timely rule 3.170(l) motion, alleging that he was
advised [by counsel] that since he was resolving both DUI's on the same day, that he would not have a lifetime revocation of his driver[']s license.... Based on the information that his driver[']s license would be revoked for 10 years and at the most 20 years, [he] pled to the charges.
The motion further alleged that subsequent to Sayles' plea, he "received an order of permanent license revocation" from the DMV. He claimed that his "plea was involuntary because he was advised his license would not be permanently revoked."
After defense counsel filed the motion, she moved to withdraw based on conflict, and new counsel was appointed for the hearing on the motion to withdraw plea. At the hearing on the motion, at which no evidence was presented, Sayles' new counsel argued that Sayles' plea was entered with the understanding that his driver's license would not be permanently revoked. The trial court orally denied the motion without any explanation. The trial court's written order of denial states only that Sayles' "plea was freely and voluntarily entered."
On appeal, Sayles argues that in considering the motion to withdraw plea, the trial court incorrectly assumed that the revocation of his driver's license is a collateral *1271 consequence of his plea. Sayles contends that it is a direct consequence of his plea and that he therefore had a right to receive accurate advice about it. He also alleges that there is nothing in the record to refute the allegation made in his motion that he was misadvised by his attorney. Sayles asserts that the trial court should have held an evidentiary hearing on his motion.
The State responds that although all parties were operating under the mistaken assumption that Sayles would only be subject to a temporary license revocation, the record shows that the trial court specifically stated that it could not make any promises regarding what the DMV would do. The State recognizes that affirmative misadvice about collateral matters may justify withdrawal of a plea but argues that Sayles had no right to rely on any misadvice from counsel in light of the trial court's advice at the plea hearing.
Revocation of a driver's license is a collateral consequence of a plea, and therefore, neither defense counsel nor the trial court is required to inform a defendant about such a consequence before the defendant enters his or her plea. See Bolware v. State, 995 So. 2d 268, 275 (Fla. 2008). However, "[a]ffirmative misadvice about even a collateral consequence of a plea constitutes ineffective assistance of counsel and provides a basis on which to withdraw the plea." Roberti v. State, 782 So. 2d 919, 920 (Fla. 2d DCA 2001); see also Deck v. State, 985 So. 2d 1234, 1236 (Fla. 2d DCA 2008) ("[W]hile counsel has no obligation to be proactive by voluntarily advising a defendant about the collateral consequences of a guilty plea, if counsel chooses to offer such advice, then the advice given must be accurate.").
The record of the plea hearing does not refute Sayles' claim that his plea was involuntary because he relied on his counsel's misadvice that his license would not be permanently revoked. First, Sayles' plea form indicates that his sentences "would consist of ... [a] 10 year DL revocation." Second, the transcript of the plea and sentencing hearing shows that neither his defense counsel nor the trial court informed him that his license could be permanently revoked. The trial court discussed the probability of the DMV temporarily revoking Sayles' license for a term of ten or twenty years, but the trial court never informed Sayles that his driver's license could be permanently revoked. Therefore, contrary to the State's assertion, the trial court did not cure the alleged misadvice given to Sayles by his defense counsel.
Accordingly, we reverse and remand for an evidentiary hearing on Sayles' motion to withdraw plea. See Iaconetti v. State, 869 So. 2d 695, 699 (Fla. 2d DCA 2004).
Reversed and remanded.
WHATLEY, and DAVIS, JJ., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590297/ | 686 N.W.2d 9 (2004)
262 Mich.App. 333
W.A. FOOTE MEMORIAL HOSPITAL, Petitioner-Appellant,
v.
CITY OF JACKSON, Respondent-Appellee (Four Cases).
W.A. Foote Memorial Hospital, Petitioner-Appellant,
v.
Summit Township, Respondent-Appellee.
Docket Nos. 244670-244672, 246122, 246124.
Court of Appeals of Michigan.
Submitted May 5, 2004, at Lansing.
Decided June 8, 2004, at 9:10 a.m.
Released for Publication August 18, 2004.
*11 Kitch Drutchas Wagner DeNardis & Valitutti (by Michael J. Watza), Detroit, for W.A. Foote Memorial Hospital.
Julius Giglio, City Attorney, Jackson, for city of Jackson.
William A. Thompson, Jackson, for Summit Township.
Before: MURRAY, P.J., and NEFF and DONOFRIO, JJ.
NEFF, J.
In these consolidated cases, petitioner appeals as of right from the Michigan Tax Tribunal's orders dismissing petitioner's tax appeals for lack of jurisdiction. We affirm.
I
This case presents a narrow question of statutory interpretation to decide whether the term "certified mail" under M.C.L. § 205.735(2) encompasses priority overnight delivery by Federal Express for purposes of timely filing an appeal with the Michigan Tax Tribunal. We hold that the term "certified mail" refers to a classification of domestic mail provided by the United States Postal Service and therefore explicit statutory allowances for mailing by "certified mail" under M.C.L. § 205.735(2) are inapplicable to a petition sent via Federal Express delivery. We further hold that because the time requirements of M.C.L. § 205.735(2) are jurisdictional, the Tax Tribunal properly dismissed petitioner's appeals for lack of jurisdiction.
II
In 2002, respondents assessed taxes on certain real and personal property of petitioner. Petitioner claimed the property was exempt from taxation because petitioner was a tax-exempt, nonprofit charitable institution and hospital. Following adverse decisions by the respective boards of review, petitioner sought appeals before the Tax Tribunal pursuant to M.C.L. § 205.735.
Petitioner sent its tax appeal petitions on July 1, 2002, via Federal Express. The Tax Tribunal received the petitions on July 2, 2002. The Tribunal subsequently dismissed the appeals on the ground that the petitions were not timely filed, which deprived the Tax Tribunal of jurisdiction to hear the appeals under M.C.L. § 205.735.
The Tax Tribunal noted that M.C.L. § 205.735(2) required that the petitions be filed by June 30 of the tax year involved, or in this case, by July 1, 2002, "the next business day," since June 30, 2002, fell on a Sunday. Filing occurs by delivering a petition in person or by sending a petition by certified mail within the required period. The petitions were untimely because they were not delivered in person or sent by certified mail by July 1, 2002. The Tax Tribunal denied petitioner's motions for reconsideration.
III
Petitioner argues that the Tax Tribunal erred in dismissing the appeals as *12 untimely because Federal Express priority overnight mail is the equivalent of certified mail and therefore sending the petitions via Federal Express on July 1, 2002, constituted a timely filing. Petitioner's view is that the statute does not dictate that certified mail be done through the United States Postal Service. Further, by definition, certified mail is mail sent with proof of delivery and Federal Express provides such proof with a receipt for the date of mailing. We disagree.
A
In the absence of fraud, this Court reviews a decision of the Tax Tribunal to determine whether the tribunal committed an error of law or adopted a wrong legal principle. Danse Corp. v. City of Madison Hts., 466 Mich. 175, 178, 644 N.W.2d 721 (2002); Electronic Data Sys. Corp. v. Flint Twp., 253 Mich.App. 538, 541, 656 N.W.2d 215 (2002) (EDS). Issues concerning the interpretation and application of statutes are questions of law for this Court to decide de novo. Danse Corp, supra.
Courts may not speculate regarding the probable intent of the Legislature beyond the language expressed in a statute. Cherry Growers, Inc. v. Agricultural Marketing & Bargaining Bd., 240 Mich.App. 153, 173, 610 N.W.2d 613 (2000). We give the words of a statute their plain and ordinary meaning. EDS, supra at 545, 656 N.W.2d 215. If the language of a statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. Id.
B
M.C.L. § 205.735(2) states the following regarding jurisdiction of the Tax Tribunal:
The jurisdiction of the tribunal in an assessment dispute is invoked by a party in interest, as petitioner, filing a written petition on or before June 30 of the tax year involved. Except in the residential property and small claims division, a written petition is considered filed by June 30 of the tax year involved if it is sent by certified mail on or before June 30 of that tax year. . . . All petitions required to be filed or served by a day during which the offices of the tribunal are not open for business shall be filed by the next business day.... [Emphasis added.]
In EDS, supra, this Court considered the same essential issues presented in this case, in the context of petitions that were sent by first-class mail. The petitioner mailed its petitions for appeal on June 30 of the tax year involved, but did so via ordinary first-class mail. Id. at 540, 656 N.W.2d 215. The Tax Tribunal received the petitions on July 2, but thereafter dismissed the appeals, ruling that the petitions were untimely because they were not delivered or sent by certified mail on or before June 30 as required by M.C.L. § 205.735(2). On appeal to this Court, the petitioner argued that the use of certified mail should not be required as it was merely form over substance. Id. at 546, 656 N.W.2d 215. This Court disagreed, holding that M.C.L. § 205.735(2) clearly and unambiguously provided for filing by certified mail, which did not include ordinary first-class mail. EDS, supra at 542, 546-547, 656 N.W.2d 215. We conclude that the analysis in EDS applies in this case and compels a similar result.
M.C.L. § 205.735 is a jurisdictional statute and the time requirements for filing appeal petitions are jurisdictional in nature. EDS, supra at 542-543, 656 N.W.2d 215. An untimely filing under M.C.L. § 205.735(2) deprives the Tax Tribunal of jurisdiction to consider the petition *13 and it is therefore properly dismissed. EDS, supra at 544, 656 N.W.2d 215.
The statute is clear and unambiguous in its provision for filing by "certified mail," and the term must be accorded its plain and ordinary meaning. Id. at 545-546, 656 N.W.2d 215; see also Koontz v. Ameritech Services, Inc., 466 Mich. 304, 312, 645 N.W.2d 34 (2002) (when a term is undefined in the statute, this Court may consult a dictionary to discern the term's plain and ordinary meaning). The dictionary defines "certified mail" as "uninsured first-class mail requiring proof of delivery." EDS, supra at 546, 656 N.W.2d 215, quoting Random House Webster's College Dictionary (1997). "`Certified mail' is a particular and definitive classification of postal service available from the U.S. Postal Service, which is defined by federal regulation as a `service that provides a mailing receipt to the sender and a record of delivery at the office of address.'" Bartareau v. Executive Business Products, Inc., 846 S.W.2d 248 (Mo.App., 1993), citing 39 C.F.R. § 3001.68 (1992). Similarly, in EDS, supra at 546, 656 N.W.2d 215, this Court stated:
"Certified mail service provides the sender with a mailing receipt, and a delivery record is maintained by the Postal Service. No record is kept at the office from which certified mail is mailed. No insurance coverage is provided. Certified mail is dispatched and handled in transit as ordinary mail." [Quoting the United States Post Office Domestic Mail Manual (emphasis added).]
The EDS Court noted that there was a material difference between certified mail and first-class mail:
[C]ertified mail does two things that first-class mail does not: certified mail provides the sender with a mailing receipt and a record of delivery is maintained at the post office of address. These documents provide proof of mailing, while first-class mail provides no such proof, where the date of mailing the petition is crucial to establishing the date of filing and, therefore, invoking the Tax Tribunal's jurisdiction.
* * *
The purpose of certified mailing is to provide a record of the date of mailing, because mailing is the event that invokes the jurisdiction of the Tax Tribunal, and to prevent stale claims. First-class mail does not provide any receipt showing when the mail is actually mailed by the post office. Certified mail provides the sender with a receipt and, therefore, acts as a time stamp for the petition.... Sending the petition by certified mail also protects the Tax Tribunal from fraudulent claims that a petition was timely mailed because it is the post office that provides a receipt for the sender. In this regard, all the parties are better protected by the requirement of certified mail because if the petition is never received, the sender has a receipt to prove that a petition had been timely filed and the appeal will not be lost because of a failure of the post office to deliver the original petition. [Id. at 546, 549-550, 656 N.W.2d 215 (emphasis added).]
Under the same analysis, there is a material difference between United States Postal Service certified mail and overnight priority delivery by Federal Express. Federal Express overnight priority delivery is not the equivalent of "certified mail" for purposes of invoking the jurisdiction of the Tax Tribunal.
As noted above, the dictionary defines certified mail as "uninsured first-class mail requiring proof of delivery." Id. at 546, 656 N.W.2d 215. The term "mail" is defined as "letters, packages, etc., sent or *14 delivered by the postal service." Random House Webster's College Dictionary, supra (emphasis added). In turn, "postal service" refers to the "post office," which is "an office or station of a government postal system at which mail is received and sorted, from which it is dispatched and distributed...." Id. Accordingly, in EDS, with respect to certified mail, the Court specifically referred to receipts provided and records maintained by the post office or the postal service. EDS, supra at 546-547, 550, 656 N.W.2d 215 (emphasis added).
We conclude that the plain and ordinary meaning of the term "certified mail" in M.C.L. § 205.735(2) encompasses only "mail" sent by the United States Postal Service not delivery by private carrier services.[1] Although petitioner advocates a contrary conclusion, petitioner does not argue that it mailed its petitions via Federal Express "certified mail" or that any mail carrier other than the United States Postal Service in fact provides "certified mail" delivery. Thus, petitioner's own view belies any argument that "certified mail" is a generic term that would include Federal Express overnight priority mail within its ordinary meaning.
We find that the appeal petitions in this case were not timely filed under M.C.L. § 205.735(2). The Tax Tribunal therefore properly dismissed the petitions for lack of jurisdiction.
IV
Petitioner argues that the Tax Tribunal gave a hypertechnical reading to the statute by not accepting Federal Express overnight priority delivery as certified mail. Petitioner insists that such a construction and application of the statute is contrary to the purpose of M.C.L. § 205.735, which is to ensure timely filing of petitions. We disagree. This Court specifically rejected a nearly identical argument in EDS, supra. The EDS Court found no merit in the petitioner's argument that the Tax Tribunal gave a hypertechnical reading to the statute. Id. at 545, 656 N.W.2d 215. The rule of stare decisis generally requires courts to reach the same result when presented with the same or substantially similar issues in another case with different parties. Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 180, 615 N.W.2d 702 (2000); Topps-Toeller, Inc. v. City of Lansing, 47 Mich.App. 720, 729, 209 N.W.2d 843 (1973). EDS, supra, is therefore controlling on this issue and petitioner's argument fails.
V
Next, in the alternative, petitioner argues that if Federal Express priority overnight delivery does not meet the requirements of M.C.L. § 205.735(2), then the certified mail requirement constitutes a deprivation of property without due process of law. Petitioner contends that because Federal Express provides a similar record of mailing, there is no rational basis for the rule that only certified mail can be used to meet the requirements of the statute. We disagree.
The petitioner in EDS, supra, presented essentially the same due process claim, which the Court rejected. The due process clauses of the United States and Michigan constitutions provide that no one *15 may be deprived life, liberty, or property without due process of law. U.S. Const., Am. XIV; Const. 1963, art. 1, § 17; EDS, supra at 549, 656 N.W.2d 215. Petitioner's claim is one of substantive due process, the underlying purpose of which is to secure the individual from the arbitrary exercise of governmental power. Id. The applicable test is whether the law is rationally related to a legitimate government purpose. Id.
One of the legitimate government purposes of requiring United States Postal Service certified mail is to protect the Tax Tribunal from fraudulent claims. EDS, supra at 550, 656 N.W.2d 215. If delivery by private carriers such as Federal Express were deemed acceptable, then the reliability and uniformity associated with certified mail would disappear. The Tax Tribunal, the courts, and litigants would face an array of record systems, jeopardizing the efficient and just resolution of tax appeals. Conceivably, any carrier or person could claim to be a carrier service and offer up a package receipt as genuine. While a record of certified mail could also be fabricated, in amending the statute to permit filing by "certified mail," id. at 550, 656 N.W.2d 215, the Legislature clearly intended a certain degree of uniformity regarding where and with whom the record of mailing would be maintained to avoid such complications in invoking the jurisdiction of the Tax Tribunal.
Although petitioner argues that it is unreasonable or arbitrary to permit filing by only certified mail and not Federal Express delivery, the reasoning in EDS, supra at 549-550, 656 N.W.2d 215, applies in the context of private delivery service as well as in the context of first-class mail. The Legislature's requirement is rationally related to its interest in a uniform record of mailing provided by the United States Postal Service. We conclude the requirement does not violate substantive due process.
VI
Petitioner also argues that M.C.L. § 205.735(2) violates the equal protection clauses of the United States and Michigan constitutions because it creates arbitrary classes of taxpayers by creating two categories of filings: (1) claims filed in the residential property and small claims division, which can be accomplished via first-class mail (which petitioner apparently views as including Federal Express delivery), and (2) all other claims, which require the use of certified mail.
The equal protection clauses of the United States and Michigan constitutions provide that no person shall be denied the equal protection of the law. U.S. Const., Am. XIV; Const. 1963, art. 1, § 2; EDS, supra at 551, 656 N.W.2d 215. "`The essence of the Equal Protection Clauses is that the government not treat persons differently on account of certain, largely innate, characteristics that do not justify disparate treatment.'" EDS, supra at 551, 656 N.W.2d 215, quoting Crego v. Coleman, 463 Mich. 248, 258, 615 N.W.2d 218 (2000).
As with petitioner's due process challenge, a nearly identical equal protection argument was analyzed in EDS, supra, where we held that "[t]he fact that the statute creates a class of petitioners that may file by first-class mail (small claims division) and a class of petitioners that may file by certified mail (all other claims) is not arbitrary and capricious." EDS, supra at 553, 656 N.W.2d 215. This state has a legitimate interest in having the record of mailing a petition under a uniform system of recording, i.e., the United States Postal Service, and therefore the certified mail requirement is rationally related to a legitimate government purpose. *16 EDS, supra at 553-554, 656 N.W.2d 215. Accordingly, M.C.L. § 205.735(2) does not violate the equal protection clauses.
VII
Finally, petitioner argues that EDS, supra, was wrongly decided with respect to its holding that M.C.L. § 205.735(2) is a jurisdictional statute. Petitioner contends that the time requirements in M.C.L. § 205.735(2) are only procedural requirements and petitioner's failure to meet those requirements is not a basis for dismissing its petitions. As noted above, this Court is bound by the decision in EDS pursuant to MCR 7.215(J)(1). "M.C.L. § 205.735(2) by its very terms `[t]he jurisdiction of the tribunal ... is invoked by a party in interest, as petitioner, filing a written petition on or before June 30 of the tax year involved' is a jurisdictional statute." EDS, supra at 542-543, 656 N.W.2d 215.
VIII
Unlike private carriers or delivery services, the United States Postal Service and its employees are subject to myriad laws and regulations governing the classification and handling of mail. The Legislature's decision to permit filing of a tax appeal petition by "certified mail" was undoubtedly guided by the uniformity and regulation inherent in the United States Postal Service in general, and certified mail in particular. Petitioner's remedy with regard to the limitations imposed by the statute rests with the Legislature, not the courts.
Affirmed.
NOTES
[1] Our conclusion is further supported by the Legislature's provision in M.C.L. § 8.11 that whenever the term "registered mail" is used in the statutes of this state, the term shall be deemed to include the term "certified mail" and that certified mail shall be postmarked. "Postmarked" refers to "an official mark stamped on mail passed through a postal system, showing the place and date of sending or receipt." Random House Webster's College Dictionary, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590329/ | 686 N.W.2d 280 (2004)
262 Mich.App. 101
In the Matter of James Eugene BLACKSHEAR, Minor.
People of the State of Michigan, Petitioner-Appellee,
v.
James Eugene Blackshear, Respondent, and
Van Buren Community Mental Health Authority, Intervenor-Appellant.
In the Matter of Richard Kyle Chastain, Minor.
People of the State of Michigan, Petitioner-Appellee,
v.
Richard Kyle Chastain, Respondent, and
Van Buren Community Mental Health Authority, Intervenor-Appellant.
In the Matter of James Paul Keeton, Minor.
People of the State of Michigan, Petitioner-Appellee,
v.
James Paul Keeton, Respondent, and
Van Buren Community Mental Health Authority, Intervenor-Appellant.
Docket Nos. 240556, 240665, 240666.
Court of Appeals of Michigan.
Submitted March 30, 2004, at Grand Rapids.
Decided May 18, 2004, at 9:20 a.m.
Released for publication July 21, 2004.
*281 Juris Kaps, Prosecuting Attorney, and Keith A. Robinson, Assistant Prosecuting Attorney, Paw Paw, for the petitioner.
Miller, Canfield, Paddock and Stone, P.L.C. (by Scott R. Sikkenga and Kara K. Zech), Kalamazoo, for Van Buren Community Mental Health Authority.
Before: MARKEY, P.J., and MURPHY and TALBOT, JJ.
TALBOT, J.
In these consolidated cases, we granted intervenor leave to appeal to determine whether the trial court may judicially admit a juvenile, found to be incompetent to stand trial, to the care, treatment, and supervision of a community mental health authority pursuant to the Mental Health Code, MCL 330.1100 et seq., and whether the court was allowed to direct a county community mental health authority to arrange *282 and pay for the competency evaluations of the juvenile respondents in these cases. We conclude that the court lacked the necessary authority with respect to both issues. Accordingly, we reverse the relevant orders of the trial court.
I. Facts and Procedural History
In three separate juvenile proceedings, the Van Buren Community Mental Health Agency (CMHA) intervened to challenge the trial court's orders that directed the CMHA to pay for forensic evaluations to determine whether the juvenile respondents, diagnosed with mental retardation,[1] were competent to stand trial. The CMHA also intervened to challenge, in Docket Nos. 240665 and 240666, the court orders that included forensic evaluations to determine whether the respondent juveniles were legally insane at the time they allegedly committed the charged offenses. In Docket No. 240556, the CMHA challenged the order to judicially admit the juvenile, who was incompetent to stand trial, to the care, treatment and supervision of the CMHA.
A. Docket No. 240556
In Docket No. 240556, the twelve-year-old respondent was charged with seventeen separate criminal offenses ranging from theft of bicycles to larceny of a check. Prior evaluations of the juvenile indicated that he was mentally impaired, and his guardian ad litem and attorney moved the trial court for a forensic examination to determine his competency to stand trial. The court approved the motion and appointed a board-certified forensic examiner, who determined that the juvenile had a full scale IQ between fifty-one and sixty-two of performance, ranking him below the first percentile of the population. The forensic examiner found the juvenile to be mentally retarded and severely developmentally disabled, unable to understand the charges against him, and unable to assist in his own defense. The examiner opined that the juvenile would remain incompetent for the rest of his life.
At the competency hearing, the trial court found the juvenile incompetent to stand trial and that the juvenile's condition would not change within the next fifteen months. The court concluded that the juvenile required intensive mental health treatment under a foster care arrangement. Accordingly, the court committed the juvenile to the care and supervision of CMHA. The court also ordered the CMHA to pay for the forensic evaluation of the juvenile.
Contrary to the court order, the CMHA performed a screening evaluation of the juvenile and determined that hospitalization was not appropriate and returned the juvenile to his parents. However, in line with the court's directives, the CMHA enrolled the family in a "wraparound" treatment program and it subsequently placed the juvenile in foster care. The CMHA then intervened in the case to challenge the trial court's order on the ground that the court lacked legal authority to commit the juvenile to the care of CMHA or order it to pay for the forensic evaluation. The court upheld the order. It noted a gap in the Mental Health Code with respect to mentally retarded juvenile respondents who were found incompetent to stand trial. Specifically, the court expressed its frustration over the fact that the code was silent with respect to whether a mentally retarded juvenile who was found incompetent to stand trial could be judicially admitted to mental health care when the *283 juvenile's condition was not expected to improve or change within fifteen months of the incompetency determination. The court conceded that its order violated Chapter 5 of the code that governed the civil admission and discharge procedures for the developmentally disabled, but it reasoned the instant case involved criminal matters, not a civil admission. The court explained that it followed the directives of In re Carey[2] to liberally construe the Mental Health Code to protect the due process rights of the juvenile when the Legislature had not enacted separate codes for the civil and the criminal treatment of incompetent juveniles. The court concluded that to read the Mental Health Code otherwise would mean that the court had the power only to release the juvenile to his parents.
B. Docket No. 240665
In Docket No. 240665, the fifteen-year old respondent had been involved with the family division of the Van Buren Circuit Court since the age of twelve years. At the time of the instant proceedings, he was waiting adjudication on a charge of larceny in a building. The juvenile's school records indicated that he was mentally retarded, and his attorney and guardian ad litem moved the trial court for a forensic examination to determine whether he was competent to stand trial and whether he was legally insane at the time he allegedly committed larceny in a building. The trial court ordered the CMHA to arrange and pay for the forensic evaluation.
The CMHA did not follow the directives of the order, but intervened in the case to challenge the trial court's legal authority to order it to pay for the forensic examination. The CMHA argued that it was not the Department of Community Health for purposes of the Mental Health Code, and that the code contained no authorization to pay for forensic examinations of juveniles for the purposes of determining competency to stand trial or legal sanity. The trial court denied the CMHA's motion to modify the order, rejecting as illusory the CMHA's claim that it was not the same entity as the Department of Community Health.
C. Docket No. 240666
In Docket No. 240666, the sixteen-year old respondent had been involved with the family division of the circuit court since the age of eleven. In the instant proceedings, he was awaiting adjudication on two counts of first-degree criminal sexual conduct, two counts of second-degree criminal sexual conduct, and one count of malicious destruction of property over $1,000. In this case, his attorney moved the trial court for an order authorizing a forensic examination of him on the grounds that he had an IQ of 57, that he was diagnosed as an educable mentally impaired or mildly retarded student, and that he had been prescribed several behavioral or mood altering medications.
Like in the two other cases in these appeals, the court entered an order directing the CMHA to arrange for a forensic evaluation to determine whether the juvenile was competent to stand trial and whether he was legally insane at the time he committed the alleged offenses. The CMHA intervened and challenged the court's legal authority to enter the order. The court upheld the order on the same grounds as in Docket No. 240665.
II. Standard of Review
The issues present a question of the application of the law to the facts, which is reviewed de novo. People v. Barrera, 451 Mich. 261, 269 n. 7, 547 N.W.2d 280 (1996). Further, these cases involve statutory interpretation. Statutory interpretation is a *284 question of law that is reviewed de novo. People v. Law, 459 Mich. 419, 423, 591 N.W.2d 20 (1999). When interpreting a statute, the primary goal is to ascertain and give effect to the intent of the Legislature. People v. Joseph, 237 Mich.App. 18, 20, 601 N.W.2d 882 (1999).
III. Analysis
A. The Judicial Admission of a Mentally Retarded Juvenile to Mental Health Care
The first question we must determine is whether a trial court may judicially admit to a county mental health authority a mentally retarded juvenile who was found incompetent to stand trial and whose condition will not change within fifteen months of the competency hearing. We conclude that the Mental Health Code prohibits the judicial admission to mental health care of a mentally retarded juvenile who was determined incompetent to stand trial and whose condition will not improve.
The Mental Health Code provides procedures for determining the competency of adult criminal defendants. MCL 330.2020. Michigan has no statutory procedures expressly dealing with competency proceedings for juveniles. Rather, delinquency proceedings held in the family division of the circuit court are not considered to be criminal proceedings. In re Carey, 241 Mich.App. 222, 226, 615 N.W.2d 742 (2000). However, this Court held that "although the Mental Health Code provisions for competency determinations by their terms apply only to defendants in criminal proceedings, they can serve as a guide for juvenile competency determinations." Id.
We are sympathetic to the trial court's expressed frustration when it determined that none of the statutory provisions in the Mental Health Code has any application to juvenile competency proceedings. In Docket No. 240556, the court determined that the juvenile respondent was incompetent to stand trial and that he will never attain competency. The court properly relied on the decision in Carey, and looked to the criminal proceedings provided in the code for guidance. Keeping in mind the Carey directive that "the express language of the [Mental Health Code] may limit the specific procedures used," Carey, supra at 234, n. 3, 615 N.W.2d 742, the only provision in the Mental Health Code that may provide the best guidance under the circumstances in this case is the provision that governs the procedures a court must follow for an incompetent adult whose condition is not expected to improve within fifteen months of the competency hearing. Specifically, MCL 330.2031 provides:
If the [adult] defendant is determined incompetent to stand trial, and if the court determines that there is not a substantial probability that, if provided a course of treatment, he will attain competence to stand trial within the time limit established by section 1034 [15 months], the court may direct a prosecuting attorney to file a petition asserting that the defendant is a person requiring treatment as defined by section 401 [MCL 330.1401] or meets the criteria for judicial admission as defined by section 515 [MCL 330.1515] with the probate court of the defendant's county of residence.
In these cases, the court could not resort to the directives of MCL 330.1401 because that provision of the Mental Health Code concerns only the mentally ill, and not the mentally retarded. MCL 330.1515, meanwhile, specifically provides the criteria for the judicial admission to mental health care of adults diagnosed with mental retardation, as follows:
A court may order the admission of an individual 18 years of age or older who meets both of the following requirements:
*285 (a) Has been diagnosed as an individual with mental retardation.
(b) Can be reasonably expected within the near future to intentionally or unintentionally seriously physically injure himself or herself or another person, and has overtly acted in a manner substantially supportive of that expectation. [MCL 330.1515 (emphasis added).]
MCL 330.1515 is part of Chapter 5 of the Mental Health Code, which governs the civil admission and discharge procedures for persons with developmental disabilities including mental retardation. MCL 330.1500 et seq. Section 502 of the code expressly provides that "[a]n individual shall be admitted to a center only pursuant to the provisions of this act." MCL 330.1502 (emphasis added). Thus, it is clear that MCL 330.1515 expressly limits judicial admission to adults only. Importantly, the act expressly prohibits the judicial admission of a minor to mental health care, as follows:
An individual under 18 years of age shall not be judicially admitted to a center, facility, private facility, or other residential program. [MCL 330.1503(1) (emphasis added).]
Although a court may judicially admit a mentally retarded adult to mental health care, Chapter 5 of the Mental Health Code does not provide an exception for the judicial admission of mentally retarded juveniles. Rather, the act details the administrative procedures under which a juvenile may be administratively admitted to a mental health center. The procedures require a referral by a community mental health services program, an application submitted by a parent, guardian, or a person in loco parentis, and a preadmission examination by a center to determine whether the person is suitable for admission. MCL 330.1508-330.1510. Thus, it is clear that the Legislature, in enacting the provisions of the civil admission of mentally retarded persons, intended that juveniles not be judicially admitted under any circumstances similar to those in these cases. We conclude that Chapter 5 of the Mental Health Code comports with the legislative intent to leave it to the parents of a mentally retarded juvenile and to the qualified mental health professionals to follow the specific statutory procedures for admission. Thus, the trial court in this case was not allowed to disregard the clear directives of the act and judicially admit the juvenile to mental health care.
The trial court's written opinion clearly establishes the court's frustration with the fact that it was without legislative directive to assist the juvenile whom the court determined was in need of mental health care and treatment. As the court stated:
Since [the juvenile] is incompetent to stand trial, this Court cannot, under the Juvenile Code, order him to go to a treatment center; cannot place him on probation; cannot order him into a foster home; cannot order his parents to abide by certain court orders; and in essence cannot do anything except release him to his home with conditions of bond.
We are sympathetic to the trial court's frustration over the absence of legislative directive with respect to procedures for conducting and resolving competency matters for juveniles.[3] We commend the court for its careful consideration of the *286 language of the Mental Health Code and its efforts to provide the juvenile with treatment and care in keeping with the spirit of the code. Nonetheless, "`[i]t is the function of the court to fairly interpret a statute as it then exists; it is not the function of the court to legislate.'" People v. Jahner, 433 Mich. 490, 501, 446 N.W.2d 151 (1989) (citation omitted). We conclude that the court was not allowed to expand on the express language of the code.
B. The Arrangement and Costs for Competency Examinations
The next question presented is whether a trial court may order a county community mental health authority to arrange and pay for forensic examinations to determine whether a juvenile is competent to stand trial. We conclude that it may not.
Here, the court relied on the decision in Carey, and looked to MCL 330.2026(1) for guidance to secure forensic evaluations to determine the competency of the juveniles to stand trial. MCL 330.2026(1) provides:
Upon a showing that the defendant may be incompetent to stand trial, the court shall order the defendant to undergo an examination by personnel of either the center for forensic psychiatry or other facility officially certified by the department of mental health to perform examinations relating to the issue of incompetence to stand trial....
From the language of the above provision, the court was authorized to enter an order for a forensic examination only under one of two circumstances: (1) an examination conducted by the center for forensic psychiatry, or (2) an examination conducted by any other facility that is officially certified by the Michigan Department of Community Health, formerly the Department of Mental Health.[4]
In these cases, the trial court concluded that the Department of Community Health and the CMHA were, for all practical matters, one and the same, and it directed the competency order to the CMHA. The court misinterpreted the statute.
"The Legislature may be presumed to have intended a meaning that is clearly expressed and to have intended that every word and section be given effect." People v. Smith, 423 Mich. 427, 441, 378 N.W.2d 384 (1985). Further, we must presume that "the Legislature was aware of the meaning of the language it used in the Mental Health Code." Carey, supra at 232, 615 N.W.2d 742 (citation omitted). According to MCL 330.1100a(13), a "community mental health authority" means "a separate legal public governmental entity created under section 205 [MCL 330.1205] to operate as a community mental health services program." Specifically, a community mental health authority is a legal entity created by a county through an enabling resolution adopted by the county's board of commissioners. MCL 330.1205(1). In contrast, the Department of Community Health, formerly known as the Department of Mental Health, is a state department within the executive branch established "by section 400 of Act No. 380 of the Public Acts of 1965." MCL 330.1102; see also MCL 16.500. We conclude that the court erred when it determined that the CMHA and the Department of Community Health were one and the same, and when it subjected the CMHA to the order without determining whether the CMHA was officially certified by the Department of *287 Community Health to perform forensic examinations.[5]
Because the trial court determined that the CMHA was, for all purposes, the same as the Department of Community Health, the court rejected the CMHA's argument that its contractual obligations did not allow it to arrange and pay for the forensic examinations of the juveniles. We find nothing in the statute that grants the court the authority to order a community mental health authority to pay for the expenses of forensic examinations conducted by the center for forensic psychiatry or any other third party facility that is officially certified by the Department of Community Health. We also cannot find anything in the statute that allows a community mental health authority to make arrangements for forensic evaluations with a third party upon a court's order. We conclude that the court was without authority to order the CMHA to arrange and pay for the forensic evaluations.
In light of the above analysis, we need not address the CMHA's claim that the trial court violated the Michigan Constitution.
Reversed.
NOTES
[1] According to MCL 330.1100b(15), "mental retardation" means "a condition manifesting before the age of 18 years that is characterized by significantly subaverage intellectual functioning and related limitations in 2 or more adaptive skills...."
[2] In re Carey, 241 Mich.App. 222, 615 N.W.2d 742 (2000).
[3] We note that, in In re Carey, supra at 234 n. 4, 615 N.W.2d 742, this Court extended an invitation to "our Supreme Court to promulgate rules of procedure for juvenile competency determinations, and our Legislature to enact any statutory provisions it deems necessary."
[4] By Executive Reorganization Order No.1996-1 the Department of Mental Health was renamed the Department of Community Health. MCL 330.3101.
[5] It is unclear whether the trial court could have referred the minors to the center for forensic psychiatry. As this Court has noted, the center has limited statutory powers that do not include the examination of minors who have not been criminally charged as an adult with a crime. Carey, supra at 233 n. 3, 615 N.W.2d 742. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590305/ | State of Wisconsin, Plaintiff-Respondent,
v.
Eric Jason Smiley, Defendant-Appellant.
No. 03-2275.
Court of Appeals of Wisconsin.
Opinion Filed: July 30, 2004.
Before Wedemeyer, P.J., Fine and Curley, JJ.
¶1. PER CURIAM.
Eric Smiley appeals the order denying his Wis. Stat. § 974.06 (2001-02) motion.[1] He argues that a newly-discovered crime lab document bearing his name under the heading of "SUSPECTS," which the State failed to provide in a discovery request, entitles him to a new trial because it proves that he was a suspect at the time he gave the police an un-Mirandized statement.[2] Additionally, he argues that he is also entitled to a new trial because the second-degree intentional homicide imperfect self-defense jury instruction that was read to the jury was a misstatement of the law. Because his arguments are unavailing, we affirm.
I. Background.
¶2. In 1997, Smiley lived in a house in Milwaukee with his sister. In the spring of 1997, his sister's boyfriend, Christopher Garrett, the victim, moved in. Smiley claimed he purchased a handgun for protection after the house had been burglarized twice. Several months after Garrett moved in, some of Smiley's property began missing, including his handgun. After the disappearance of the gun, Smiley purchased another gun to replace it. He suspected Garrett was the thief.
¶3. On June 5, 1997, Smiley went into his sister's room to borrow a cigarette and noticed a handgun sticking out from between the mattresses. He pulled it out and discovered that it was his stolen gun and it was fully loaded.
¶4. Believing that his suspicions about Garrett had been confirmed, Smiley took the gun and put it on a table in the living room. He confronted Garrett, the only other person in the house, with the gun and asked him where other stolen items could be located. A heated exchange began, which led to fisticuffs. During the fight, Garrett, who weighed 260 pounds, put Smiley in a bear hug and squeezed him. According to one of Smiley's statements to the police, he then reached into his waistband where he had placed his new gun and shot Garrett in the leg. Garrett then lunged for the gun in Smiley's hand and Smiley shot him again. When Garrett grabbed the stolen gun, Smiley fired two additional shots, killing Garrett.
¶5. After he realized that Garrett was dead, Smiley attempted to make Garrett's death look like it occurred during an attempted burglary. He then took the guns and left. Smiley's sister later discovered the body and called the police. During the course of the police investigation, the police indicated that they wished to speak to Smiley. Upon hearing of the police's interest in speaking to him, Smiley called the police. When the police arrived, they arrested him for an outstanding municipal warrant. Accordingly, Smiley was taken to headquarters and interviewed.
¶6. During this initial round of interviews, the police told Smiley they wanted to speak to him about Garrett's death, but told him he was not a suspect. Smiley denied any part in the homicide and claimed he had not touched a gun since his arrest in 1991. During the interview, the police noticed that Smiley was limping. Later, other questions were directed to Smiley regarding the abrasion on his head and what caused the disheveled and bloody condition of his clothing. Eventually, the police asked Smiley for his boots and jacket. Shortly thereafter, he was arrested for Garrett's murder. This occurred about four hours after the interview began.
¶7. Smiley was not interviewed again until another four hours passed, at which time he was read his Miranda rights for the first time. During this next interview, Smiley confessed to killing Garrett. As a result of his confession, the police located the murder weapon, another gun and some marijuana.
¶8. Smiley was charged with first-degree intentional homicide while armed. He filed several motions, including a motion seeking to have his earlier false statement to the police suppressed. The trial court denied that motion.
¶9. A jury trial was held. Smiley's strategy at trial was that he acted in self-defense; thus, he sought to be completely exonerated of any crimes. At the conclusion of the trial, the court held a jury instruction conference. The State, over Smiley's objection, was successful in requesting that the jury also be instructed on second-degree intentional homicide-imperfect self-defense. Smiley objected to this jury instruction, but not because it was a misstatement of the law. Smiley's attorney claimed surprise, stating that he had already prepared his closing argument believing there would be no lesser-included offenses, and he argued that no testimony supported the second-degree intentional homicide instruction.
¶10. During deliberations, the jury asked the court to explain the difference between first- and second-degree homicide. In response, the trial court read Wis JI-Criminal 1014 to the jury. The jury returned a verdict finding Smiley guilty of first-degree intentional homicide while armed. At sentencing, the trial court sentenced him to life in prison with parole eligibility in forty years.
¶11. Smiley filed a postconviction motion seeking a new trial. This motion was denied and his conviction was affirmed in his direct appeal. See State v. Smiley, No. 01-0335-CR, unpublished slip op. (WI App Jan. 8, 2002). In June 2003, Smiley filed a Wis. Stat. § 974.06 motion. In his motion, Smiley claimed that newly-discovered evidence revealed that he had been a suspect from the beginning of the investigation and, consequently, that the trial court erred in denying his motion to suppress his pre-Miranda statements to police. He also claimed that the State failed to provide this document in discovery. In Smiley's view, both errors required a new trial. Further, he argued that the self-defense instruction given to the jury misstated the law. This motion was also denied and Smiley now appeals.
II. Analysis.
¶12. Smiley submits that a newly discovered crime lab document dated June 6, 1997, listed him as a suspect. As a result, Smiley argues that his first statement, given to the police when he asserts he was actually a suspect in the homicide, was inadmissible because he was never read his Miranda rights before he gave the statement. Smiley has also alleged a discovery violation for the State's failure to turn over the fingerprint document, which, he asserts, also establishes his right to a new trial. We are unpersuaded by both arguments.[3]
¶13. A new trial will be granted based upon newly discovered evidence if the defendant establishes by clear and convincing evidence that:
(1) the evidence was discovered after conviction; (2) the defendant was not negligent in seeking to discover it; (3) the evidence is material to an issue in the case; (4) the evidence is not merely cumulative to the testimony introduced at trial; and (5) it is reasonably probable that, with the evidence, a different result would be reached at a new trial.
State v. Carnemolla, 229 Wis. 2d 648, 656, 600 N.W.2d 236 (Ct. App. 1999).
¶14. When reviewing a trial court's decision concerning a motion for a new trial based upon newly discovered evidence, we look to see whether the trial court properly exercised its discretion. State v. Brunton, 203 Wis. 2d 195, 201-02, 552 N.W.2d 452 (Ct. App. 1996)." However, whether due process requires a new trial because of newly-discovered evidence is a constitutional question subject to independent review[.]" State v. Kimpel, 153 Wis. 2d 697, 702, 451 N.W.2d 790 (Ct. App. 1989).
¶15. With respect to Smiley's discovery violation claim, under Brady v. Maryland, 373 U.S. 83 (1963)," suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. To establish a Brady violation, a defendant must show that the evidence was "favorable to the accused," was "suppressed by the State," and "prejudice" ensued. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999). For Brady purposes, the third component is satisfied only if the evidence is "material"-"only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985). Furthermore, "[a] `reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id. Thus, if a discovery violation is established in this manner, it is a violation of due process, see Brady, 373 U.S. at 87, and a question of constitutional law subject to independent review, see State v. Avery, 213 Wis. 2d 228, 234, 570 N.W.2d 573 (Ct. App. 1997).
¶16. Smiley has met the first four prongs of the test set forth in Carnemolla. He has presented evidence that strongly supports his contention that the crime lab document was newly discovered after his trial and appeal had been concluded. Further, Smiley was not negligent in obtaining the report, the document is arguably material to an issue in the case, and it is not merely cumulative to other testimony or evidence. However, Smiley has failed to meet the fifth criterion for a new trial; i.e., that it is reasonably probable a different result would be reached at a new trial with the new evidence. For the same basic reason, Smiley has not met the Brady requirement that the evidence be "material."
¶17. The fingerprint document in question is a standardized form entitled "LATENT FINGERPRINT CASE," with blank spaces to be completed. It is dated June 6, 1997, and bears the name "T. Kowalske" as the fingerprint technician. It reflects that the technician was dispatched to the scene and examined a stereo and a window frame for fingerprints. Listed after the preprinted words "NOTES OF OFFENSE" is the following description: "apparent burglary to victims [sic] residence; victim found in living room area with 4 gun shot wounds, possibly surprised burglar." Under the preprinted word "SUSPECTS," the full names of Smiley and the victim, Garrett, are listed, along with their descriptions, dates of birth and bureau of identification numbers.
¶18. At trial, the trial court concluded, and was later affirmed by this court, that Smiley's first statement, given without the benefit of Miranda warnings, was admissible because Smiley, while in custody, was not being interrogated. Thus, the newly discovered evidence must establish that Smiley was actually being "interrogated" in order to meet the test set forth in Carnemolla-that it is reasonably probable that a different result would be reached at a new trial. This must also be established under Brady as it requires a showing that the evidence is "material." Smiley has failed to do so.
¶19. As noted, the critical issue is whether the crime lab document calls into question whether he was actually being "interrogated" when he gave his first statement to the police. "Interrogation," for Miranda purposes, means, in addition to express questioning," words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response" from the person in custody. Rhode Island v. Innis, 446 U.S. 291, 302 (1980) (emphasis in original; footnote omitted)." The test is whether an objective observer could foresee that the officer's conduct or words would elicit an incriminating response." State v. Cunningham, 144 Wis. 2d 272, 278, 423 N.W.2d 862 (1988). "[T]he focus of the Innis test is `primarily upon the perceptions of the suspect." Id. at 279 (citation omitted). That is, the police conduct "must be viewed from the suspect's perspective to determine whether such conduct was reasonably likely to elicit a response." Id. at 280. However, "[t]he police cannot be held accountable for the unforeseeable results of their words or actions." Id. at 279-80.
¶20. The trial court heard testimony from the police that they interviewed Smiley because he resided with the victim and they believed he could offer helpful information to the investigation. The police testified he was not a suspect at the time of the first interview. The crime lab form does not call into question the trial court's determination that Smiley was being interviewed, not interrogated, at the time of his first statement. A review of the entire document sheds light on why Smiley's and Garrett's names were listed under the preprinted word" SUSPECTS." The document listed the crime as an "apparent burglary." Smiley's and Garrett's were listed on the preprinted form presumably because, as residents of the house, the police expected to find their fingerprints and, thus, they would be eliminated as possible intruders if their fingerprints matched any found at the scene.
¶21. Common sense dictates the same conclusion because if Smiley's theory-that being listed under the heading" SUSPECT" automatically renders him a suspect in the investigation-is correct, then one would also have to believe that the victim was a "suspect" in the investigation of his own murder, as his name was listed too. Thus, Smiley's claim based upon the fingerprint form lacks merit and, as a result, he has shown neither a reasonable probability of a different result at trial nor that the evidence is material.
¶22. Next, Smiley argues that the reading of the pattern jury instruction, Wis JI-Criminal 1014, at his trial constituted an error requiring a new trial. Specifically, he notes that the jury instruction entitled FIRST DEGREE INTENTIONAL HOMICIDE: SELF-DEFENSE: SECOND DEGREE INTENTIONAL HOMICIDE-§ 940.01(2)(b); § 940.05, has been changed as a result of the holding in State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413. In pertinent part, the version of the instruction read to the jury stated:
As applied to this case, the effect of the law of self-defense is that if the defendant reasonably believed that he was preventing or terminating an unlawful interference with his person and reasonably believed the force used was necessary to prevent imminent death or great bodily harm to himself, the defendant is not guilty of either first or second degree intentional homicide.
If the defendant caused the death of Christopher Garret [sic] with the intent to kill, reasonably believed that he was preventing or terminating an unlawful interference with his person, and actually, but unreasonably, believed the force used was necessary to prevent imminent death or great bodily harm to himself, the defendant is guilty of second degree intentional homicide.
If the defendant caused the death of Christopher Garret [sic] with the intent to kill and did not reasonably believe that he was preventing or terminating an unlawful interference with his person or did not actually believe the force used was necessary to prevent imminent death or great bodily harm to himself, the defendant is guilty of first degree intentional homicide.
(Emphasis added.) Head subsequently modified the pattern jury instruction. The previous language instructed the jury that, in evaluating the evidence under a claim of imperfect self-defense, they were to determine whether the defendant had a reasonable belief that he or she was in imminent danger of death or great bodily harm. Head replaced this language with language that made clear that the defendant need only have an actual belief-it need not be reasonable-in order to fall within the scope of imperfect self-defense. Head explains:
[A] defendant seeking a jury instruction on unnecessary defensive force (imperfect self-defense) to a charge of first-degree intentional homicide is not required to satisfy an objective threshold showing that [the party] was acting under a reasonable belief that [the party] was in imminent danger of death or great bodily harm or that the force [he or] she used was necessary to defend [himself or] herself. Rather, the defendant must show some evidence that [he or] she actually believed that [he or] she was in imminent danger of death or great bodily harm and actually believed that the force [he or] she used was necessary to defend [himself or] herself.
Id., ¶5 (emphasis in original).
¶23. Smiley contends that the version of the instruction read to the jury unlawfully relieved the State from proving that either he did not actually believe he was preventing or terminating an unlawful interference with the victim or that he did not actually believe the force he used was necessary to prevent imminent death or great bodily harm. Smiley submits that, as a consequence, he is entitled to a new trial. We disagree.
¶24. Smiley's argument fails for two reasons. First, while Smiley objected to Wis JI-Criminal 1014 being read to the jury, he never objected to the jury instruction on the ground that it improperly stated the law. Second, State v. Lo, 2003 WI 107, 264 Wis. 2d 1, 665 N.W.2d 756, is dispositive as it established that the holding in Head is not retroactive.
¶25. At the jury instruction conference, Smiley objected to the reading of Wis JI-Criminal 1014, but he did so on other grounds. His attorney argued unsuccessfully that he was taken by surprise by the State's request for the instruction, and that he had already prepared his closing argument believing that no lesser-included offenses would be submitted to the jury. His attorney also argued that no evidence supported the giving of the instruction. No objection was ever raised, however, on the ground that the instruction improperly stated the law. To be sufficiently specific to preserve the right to appeal, an objection must reasonably advise the court of the basis for the objection. See State v. Tutlewski, 231 Wis. 2d 379, 384, 605 N.W.2d 561 (Ct. App. 1999). Inasmuch as this court lacks authority to review unobjected-to jury instructions, see State v. Schumacher, 144 Wis. 2d 388, 409-10, 424 N.W.2d 672 (1988), Smiley has failed to preserve this argument.
¶26. Moreover, the identical issue raised here was decided in Lo. There, the supreme court opined that the Head holding does not apply retroactively to cases on collateral review.[4]Lo, 264 Wis. 2d 1, ¶5.
¶27. In Lo, the supreme court grappled with the question of whether the wording change of Wis JI-Criminal 1014, as required by Head, should be applied retroactively. Like the circumstances here, the challenge to the jury instruction in Lo came after the direct appeal was decided. Thus, the court was obligated to decide whether the new rule should be applied retroactively in collateral proceedings. In deciding the issue against Lo, the court applied the tests set out in Teague v. Lane, 489 U.S. 288 (1989):
"First, a new rule should be applied retroactively if it places `certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'" "Second, a new rule should be applied retroactively if it requires the observance of `those procedures that are implicit in the concept of ordered liberty.'"
Lo, 264 Wis. 2d 1, ¶63 (citations omitted).
¶28. The Lo court concluded that under neither test was the rule to be applied retroactively:
The new rule announced in Head does not satisfy either of the Teague tests for retroactivity in a collateral proceeding. The first test does not apply because Lo's conduct was not decriminalized. The State's proof on a claim of unnecessary defense force was modified. No reasonable argument can be made that the old burden-an objective threshold of reasonableness-was or is beyond the power of the criminal lawmaking authority to proscribe.
The second test does not apply because substituting the words "actually believe that he was preventing or terminating a lawful interference with his person," for "reasonably believe that he was preventing or terminating an unlawful interference with is person" is not a watershed rule of criminal procedure, implicating fundamental fairness and the concept of ordered liberty.
Id., ¶¶70-71. As a result, Smiley is not entitled to a new trial on the basis of the previously flawed Wis JI-Criminal 1014.
¶29. For the reasons stated, the trial court's order denying the motion is affirmed.
By the Court. Order affirmed.
NOTES
[1] All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
[2] See Miranda v. Arizona, 384 U.S. 436 (1966).
[3] The postconviction court, in denying Smiley's motion, determined that the police conducting the interview with Smiley did not know of the fingerprint document. The court also concluded that State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), prevented Smiley from raising the issue of the improper jury instruction and, in any event, the jury instruction was not susceptible to attack because it was a pattern jury instruction. The State has not relied on the trial court's reasoning, conceding that Escalona-Naranjo probably does not bar Smiley's motion. The State has also not adopted the trial court's theory that a pattern jury instruction is impervious to attack.
[4] While Smiley concedes that Lo is contrary to his position, he argues that it was mistakenly decided. This court is obligated to follow Wisconsin Supreme Court precedent. Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997) ("The supreme court is the only state court with the power to overrule, modify or withdraw language from a previous supreme court case."). Thus, any change in the law must come from the Supreme Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590346/ | 14 So. 3d 198 (2007)
ROBERT J. BROCK, JR.
v.
STATE.
No. CR-06-0390.
Court of Criminal Appeals of Alabama.
August 17, 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/1590342/ | 972 So. 2d 996 (2008)
Luis CONCHA, Appellant,
v.
STATE of Florida, Appellee.
No. 4D07-776.
District Court of Appeal of Florida, Fourth District.
January 2, 2008.
Rehearing Denied February 13, 2008.
*997 Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
STONE, J.
Concha was adjudicated guilty of felony driving under influence.
The primary issue on appeal is whether the prosecutor's questioning was fairly susceptible of being interpreted as a comment on Concha's right to remain silent. We conclude that it was, and accordingly reverse.
A police officer stopped Concha for an unrelated violation. The officer then observed Concha with bloodshot, glossed over eyes, and smelled alcohol on Concha. Concha subsequently failed to successfully complete roadside balance tests and was taken to an alcohol testing center (BAT) where he refused to perform any tests. At trial, a testifying officer stated that Concha:
refused to do . . . any tests whatsoever.
* * *
Q. And was he given the opportunity to take a breath test?
A. Yes, he was.
* * *
That's when he said he no longer spoke any English. Through the course of that we then brought in [someone] who did speak Spanish. He refused to take any other tests at that time.
On re-direct, the state asked the officer:
Q. And when you got to the BAT facility that morning, did he [Concha] demand to show the jury any roadsides, any exercises, meaning through the video?
[Concha's counsel]: Objection. It bears on my client's 5th Amendment right.
THE COURT: Overruled.
Q. You said previously he demanded in the car I want to do the roadsides and breath test. Right?
*998 A. Yes.
Q. When he got to the BAT facility did he say now that I'm on video I demand to show the jury at a later point in time how I perform on the roadsides?
A. No. When he got there I guess see, the facility
A. Just stop right there. Did he demand to do it, to do the roadsides?
A. Prior to getting there, yes.
Q. But when he got to the BAT, so that the jury can see, did he demand to do the roadsides at the BAT?
A. No.
Q. Did he demand to do a breath test?
A. No.
Q. To the contrary, did he refuse?
A. He did refuse.
During its closing argument, the state again emphasized Concha's failure to ask for more tests:
This is a person with a guilty conscience . . . who knew full well if he gave a breath test, you all would know how guilty he was. I'm not drunk he says. Okay. Prove it. No, no, no. No, no, no. I'm not going to let the jury see that. No, no, no, the jury is not going to see how I'm going to perform on the video.
Concha's defense theory was that police rushed their duties that night, and the state failed to prove beyond a reasonable doubt that Concha's normal faculties were impaired.
A prosecutor's question that is fairly susceptible of being interpreted by the jury as a comment on a defendant's right to remain silent is improper. Shabazz v. State, 928 So. 2d 1267, 1268-69 (Fla. 4th DCA 2006); see also Rodriguez v. State, 753 So. 2d 29, 37 (Fla.2000) (emphasizing that the "fairly susceptible" test is a very liberal rule); Mitchell. v. State, 911 So. 2d 1278, 1279 (Fla. 4th DCA 2005) (citing Ruiz v. State, 378 So. 2d 101, 102 (Fla 3d DCA 1979) (noting that a prosecutor cannot comment on a suspect's failure to make a statement to an arresting or investigating police officer)); Giorgetti v. State, 821 So. 2d 417, 422 (Fla. 4th DCA 2002) ("The cases generally condemn any attempt to establish that defendant did not protest his arrest by declaiming his innocence in some way when he was being arrested."); Harris v. State, 726 So. 2d 804, 805 (Fla. 4th DCA 1999) ("Under Hoggins, any reference, either through testimony or in argument, to a defendant's exercise of silence after the arrest is impermissible.") (citing State v. Hoggins, 718 So. 2d 761, 768, 772 (Fla.1998)).
We recognize that a DUI suspect's refusal to submit to pre-arrest field sobriety tests may be admissible. See State v. Taylor, 648 So. 2d 701 (Fla.1995) (holding that Taylor's refusal was not elicited in violation of the Fifth Amendment privilege against self-incrimination, and "that the refusal is probative of the issue of consciousness of guilt"). However, we deem the Taylor circumstances distinguishable.
Here, the state suggested Concha knew he was intoxicated because he did not ask to perform the sobriety tests when he had the opportunity at the BAT facility. The state's inquiry into Concha's failure to demand the tests was fairly susceptible of being interpreted as a comment on Concha's right to remain silent. Concha had a right not to say anything and not to demand an exculpatory procedure. See Giorgetti, 821 So.2d at 422; Harris, 726 So.2d at 805.
The state argues that its examination of the officer was admissible to impeach Concha's explanation as to why he refused to take the sobriety tests at the BAT facility. However, even if post-arrest silence could be used under such circumstances to impeach a defendant, Concha did not take the stand until after the officer testified. Thus, the state's re-direct could not have *999 been used to impeach non-existent testimony.
Finally, we do not construe the admission of the testimony as harmless. Evidence of Concha's impairment was not overwhelming and consisted solely of the roadside observations. Moreover, the state furthered the error by highlighting it in closing arguments.
Therefore, we reverse and remand for a new trial.
STEVENSON and MAY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590366/ | Joseph Kuehn and Jane Kuehn, Plaintiffs-Appellants,
v.
Peppertree Resort Villas, Inc., and Peppertree Resorts Ltd. d/b/a Peppertree at Tamarack, Defendants-Respondents.
No. 03-1179.
Court of Appeals of Wisconsin.
Opinion Filed: July 22, 2004.
Before Deininger, P.J., Dykman and Lundsten, JJ.
¶1 DEININGER, P.J.
Joseph and Jane Kuehn appeal a judgment awarding them $13,730 in attorney's fees under WIS. STAT. §§ 707.57(1)(b) and 425.308 (2001-02).[1] The Kuehns contend that the trial court erroneously exercised its discretion when it reduced their requested attorney's fees by one-half. Specifically, they assert that the court improperly looked to hourly rates for public defender and guardian ad litem appointments instead of those for private bar attorneys engaged in work comparable to the services the Kuehns' attorney performed for them. Additionally, the Kuehns claim that the court failed to consider evidence supporting an award of a fully compensatory fee. Although we agree that the trial court erred in considering the hourly rates paid to publicly appointed attorneys, we conclude that the other factors properly considered by the trial court support its determination that reasonable attorney fees in this case were one-half of the fees requested by the Kuehns. Accordingly, we affirm the appealed judgment.
BACKGROUND
¶2 This litigation concerns the sale by Peppertree Resort Villas, Inc., or a related entity, of a time-share interest in Sauk County recreational property to the Kuehns. Similar transactions, numbering in the hundreds, have spawned other litigation against Peppertree, resulting in two previous opinions of this court,[2] as well as multiple proceedings in the circuit courts for Dane, Sauk, and Milwaukee Counties. The merits of the underlying litigation, however, are not before us in this appeal. The Kuehns challenge only the trial court's reduction of the attorney's fees they requested after prevailing on their claim against Peppertree.
¶3 After receiving numerous consumer complaints regarding Peppertree's time-share sales practices, the Department of Agriculture, Trade, and Consumer Protection (DATCP) initiated an investigation, in which the Kuehns and numerous other time-share purchasers participated. The DATCP procured a consent order requiring Peppertree to pay a civil forfeiture and set up a restitution fund to compensate persons who alleged they incurred economic harm as a result of their dealings with Peppertree. See State v. Peppertree Resort Villas, Inc., 2002 WI App 207, ¶¶2-3, 257 Wis. 2d 421, 651 N.W.2d 345. Prior to the entry of the DATCP consent order, however, the Kuehns opted out of the consent order and pursued their claim independently via private counsel.
¶4 The Kuehns' suit against Peppertree spanned roughly three years and included a contentious dispute over the scope of requested discovery. The Kuehns served discovery demands encompassing 187 interrogatories, 129 document requests and sixty-four requests to admit. When a dispute arose, the Kuehns filed a motion to compel and Peppertree countered with a motion for a protective order. The trial court granted Peppertree's request for an order that it need not respond to further discovery requests from the Kuehns. The trial court characterized as "outrageous" a particular Kuehn interrogatory that sought information regarding 411 different Peppertree employees, a request that was not justified, in the court's view, because of the relatively modest amount in dispute and the lack of complexity of the case. After the court decided the parties' motions for summary judgment, Peppertree filed an offer of judgment. See WIS. STAT. § 807.01(1). The Kuehns accepted the offered judgment approximately three weeks before the scheduled jury trial date.
¶5 The accepted offer provided for entry of judgment against Peppertree for $10,750 in damages, "plus costs and reasonable attorneys fees as decided by the Court." As additional relief, the judgment provided that the parties' transaction was "cancelled," that Peppertree would take steps to have any adverse credit report information arising from the transaction deleted, and it would place the Kuehns on a "do not call" list. The Kuehns requested costs in the amount of $1,419.59, which were not disputed, and $27,460 in attorney's fees under WIS. STAT. §§ 425.308 and 707.57(1),[3] based on 137.3 hours of legal work at a billing rate of $200 per hour. Peppertree objected to the attorney fee request, suggesting that "[a]n award of zero would be justified, but in no event should the award exceed $5,000."
¶6 The trial court, without a hearing, issued a written decision awarding the requested costs but reducing the attorney fees requested by one-half, awarding instead the sum of $13,730 in attorney's fees. Judgment was entered against Peppertree for $10,750 plus the allowed costs and attorney's fees. The Kuehns appeal, arguing only that the trial court erroneously exercised its discretion in reducing their requested attorney's fees by one-half.
ANALYSIS
¶7 The parties agree that, in its written decision, the trial court correctly identified the proper standards for determining reasonable attorney fees as set forth in WIS. STAT. § 425.308(2) (see footnote 3), Hensley v. Eckerhart, 461 U.S. 424 (1983),[4] and SCR 20:1.5(a).[5] They also agree that "the most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate," sometimes referred to as the "lodestar" calculation. Crawford County v. Masel, 2000 WI App 172, ¶7, 238 Wis. 2d 380, 617 N.W.2d 188 (quoting Hensley, 461 U.S. at 433). Thus, the present dispute centers on whether the trial court properly applied these standards.
¶8 The trial court identified several factors influencing its decision. In the Kuehns' favor, the trial court acknowledged the "troubled history of the litigation involving Peppertree," including the fact that "[i]nitially, Peppertree was not forthcoming in terms of discovery and process." However, the court also found that the Kuehns "over litigated," and that "[t]he need for hundreds of written interrogatories ... is not apparent" because "[m]any of the basic facts, which proved violations of the code, were evident and present from the beginning."
¶9 The trial court also considered, but rejected, the Kuehns' claim that their counsel had fulfilled the role of a "private attorney general," which serves as part of the rationale for statutory fee-shifting provisions in the statutes at issue and other consumer protection statutes.[6] The court noted that the State of Wisconsin had already acted to protect the public interest by commencing legal actions against Peppertree:[7]
Large forfeitures were paid by [Peppertree] and funds were escrowed with Justice and a mechanism provided where consumers involved with [Peppertree] could file their claims for provable and related damages and be paid. The Attorney General did act to protect the public interest and the [Kuehns]' counsel action on this account is de minimus.
¶10 In addition, the trial court gave considerable weight to the amount involved and the results achieved in the Kuehns' three-year individual lawsuit. The court concluded that "[t]he standard of result and outcome does not support" an award of over $27,000 in attorney fees because, if the Kuehns "had availed themselves to settlement procedure established by the Department of Justice, they could have recovered nearly as much as the offer of judgment which they accepted."
¶11 Finally, the trial court compared the requested attorney billing rate of $200 per hour to compensation rates for attorneys appointed by the State Public Defender (SPD) and circuit courts, which range from $40 to $70 per hour. The court stated that it did "not question the accuracy of the account of the hours the [Kuehns]' counsel spent and submitted," and that it was "not insensitive to the expenses and overhead of [a] private practitioner." It then concluded its determination as follows: "All things considered the Court finds it reasonable to fix the hourly rate at $100.00 per hour and award $13,730.00."
¶12 The Kuehns' principal argument on appeal is that the trial court erred in considering the compensation rates paid to publicly-appointed counsel, while ignoring the affidavits they produced establishing that $200 per hour is a reasonable and customary rate for attorneys engaged in pursuing consumers' rights litigation. They claim there is no basis in either the record or applicable law for the trial court to cut their attorney's requested billing rate in half, and the court's decision to do so thus constituted an erroneous exercise of discretion. In response, Peppertree does not claim that the requested $200 per hour billing rate is unreasonable, and it does not attempt to justify the court's halving of the requested billing rate per se. Rather, Peppertree contends that the trial court reduced the hourly rate simply "as the means to arrive at a total reasonable fee for the work based upon the record as a whole," which Peppertree asserts the court was entitled to do in exercising its discretion to award reasonable attorney fees in this case. We agree that the result reached by the trial court is an affirmable discretionary determination.
¶13 We review a trial court's determination of reasonable attorney fees awarded under a fee-shifting statute for an erroneous exercise of discretion. Standard Theatres, Inc. v. DOT, 118 Wis. 2d 730, 747, 349 N.W.2d 661 (1984). We defer to the trial court's properly exercised discretion because it "has observed the quality of the services rendered and has access to the file in the case to see all of the work which has gone into the action from its inception." Tesch v. Tesch, 63 Wis. 2d 320, 335, 217 N.W.2d 647 (1974). "[A]ll that [a reviewing] court need find to sustain a discretionary act is that the trial court examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach." Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982). Moreover, even where a trial court considered improper facts or had a mistaken view of the law, we may affirm if we "can conclude ab initio that facts of record applied to the proper legal standard support the trial court's conclusion." State v. Pittman, 174 Wis. 2d 255, 268-69, 496 N.W.2d 74 (1993).
¶14 We agree with the Kuehns that the trial court erred in considering the hourly rates paid to court- and SPD-appointed attorneys. Because the Kuehns provided "factual and opinion evidence ... that [their attorney]'s billing rate was consistent with the current market rate and [was] therefore presumptively reasonable" for consumer protection litigation work by comparably skilled and experienced attorneys, there was no reason for the court to go outside the record to consider rates paid for other types of legal work. See Crawford County, 238 Wis. 2d 380, ¶17 & n.6. In addition, we note that rates currently paid to publicly appointed counsel are severely restricted by statute and rule, and thus provide little, if any, indication of "`prevailing market rates in the relevant community.'" See id. at 385 (citing Blum v. Stenson, 465 U.S. 886, 895 (1984)).
¶15 We thus conclude that the trial court should not have reduced the Kuehns' requested fees by halving the proposed billing rate. There is nothing in the record to support a conclusion that $200 per hour was an unreasonable rate for the legal work at issue.[8] We agree with Peppertree, however, that the trial court's ultimate goal was to determine a proper amount of attorney fees to award under a standard of reasonableness, as illuminated by statutory and common-law factors applied to the present record. We conclude that, notwithstanding the trial court's unfortunate choice of methodology in the final paragraph of its written decision, the remainder of the court's stated rationale is both supported by the record and justifies its discretionary decision to award only fifty-percent of the fees requested. See Schauer v. DeNeveu Homeowners Ass'n, Inc., 194 Wis. 2d 62, 70-71, 533 N.W.2d 470 (1995) (explaining that an appellate court "will look for reasons to sustain a circuit court's discretionary decision," and will affirm it "even though the circuit court's reasoning may have been erroneous or inadequately expressed").
¶16 The trial court's explanation of its ruling shows that the principal basis for its decision to cut the requested fees in half was not a belief that the requested rate was unreasonable, but the court's determinations that much of the legal work performed was unnecessary and that the litigation resulted in, at best, a modest benefit for the Kuehns. It is not improper for a trial court to make an overall reduction in requested attorney fees for these reasons instead of striking specific hours from those submitted:
If ... a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith. Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained.
....
There is no precise rule or formula for making these determinations. The ... court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment....
Hensley, 461 U.S. at 436-37 (emphasis added).
¶17 The Kuehns also contend that the trial court erred by ignoring other relevant factors that they claim find support in the record, such as the time and labor required to prosecute their claims, the novelty and difficulty of the case, the nature and length of their attorney's professional relationship with them and the preclusion of other employment due to their attorney's acceptance of this case. We note first that these factors are among those the trial court cited at the beginning of its decision as providing standards which the court "must look to in making this determination." The court was thus aware of the factors the Kuehns point to, and the fact that the court devoted the balance of its written decision to a discussion of other factors it deemed of more significance in this case does not constitute error. A trial court need not comment on all of the factors set forth in WIS. STAT. § 425.308, SCR 1:1.5, or Hensley in every case. See First Wisconsin Nat'l Bank v. Nicolaou, 113 Wis. 2d 524, 538 n.15, 335 N.W.2d 390 (1983) (noting that § 425.308(2) "does not require the trial court to specifically consider each ... factor[] in every case," although it is "advisable" for the court to "expressly examine all relevant factors").
¶18 In addition to allegedly ignoring certain factors they believe are relevant to and supportive of their fee request, the trial court also erred, according to the Kuehns, in relying on the factors that it did. As we have described, the three factors the court deemed most relevant in the present case were: (1) the Kuehns' excessive discovery in light of the court's conclusion that "[m]any of the basic facts, which proved violations of the code, were evident and present from the beginning"; (2) the lack of a "private attorney general" justification for fees in this case because the DATCP had already successfully pursued the same claim prior to the Kuehns' suit; and (3) the Kuehns' limited success in recovering little more by pursuing private litigation than they would have received had they participated in the DATCP consent order. The Kuehns dispute the validity of each of these trial court findings and conclusions.
¶19 The Kuehns argue that there is no evidence to support the trial court's finding that that they over litigated this case. They point out that the trial court made no finding that any particular interrogatory was irrelevant, inappropriate, overbroad, or imposed for an improper purpose. Be that as it may, the trial court had previously granted Peppertree's motion for a protective order relieving it from responding to the Kuehn's fourth and fifth sets of interrogatories or any further discovery requests. In doing so, the court observed that, in it's opinion, the Kuehns' interrogatory requesting information regarding 411 Peppertree employees, in a case that "isn't that complicated," was "outrageous." The court also commented, when ruling on the protective order, that its "impression" was that that "these cases are driven by attorney fees" in that the issues and amount involved could have been tried much more quickly and at less cost. Finally, the trial court noted that the discovery in this case prompted it to revise its standard scheduling order to place an overall limit on the number of interrogatories that a party could serve without obtaining court approval.
¶20 We conclude that the trial court's finding that the Kuehns' attorney devoted an inappropriate amount of time to pursuing overly extensive discovery was both a proper consideration in determining the amount of reasonable attorney fees, and one that finds support in the record.[9]
¶21 The Kuehns next challenge the trial court's focus on the lack of a need in this case for their attorney to assume the role of a "private attorney general." They argue that they should not be penalized for opting to commence a private action rather than accepting the remedy under the DATCP consent order. We conclude, however, that the trial court did not "penalize" the Kuehns for bringing their actionit awarded them all of their requested costs and over $13,700 in attorney's fees. Moreover, we conclude that, given the rationale behind fee-shifting provisions in consumer protection statutes (see footnote 6), the court's consideration of the lack of significant public benefit from the Kuehns' suit was not improper. By the time the Kuehns filed their suit, their interestsand those of the publichad been represented in the DATCP-negotiated consent order. Peppertree agreed in the consent order to cancel the Kuehns' and other purchasers' time-share contracts and to refund money paid less benefits derived, as well as to pay additional civil forfeitures and restitution. Thus, we agree with the trial court that no appreciable additional deterrent to Peppertree (or others) was achieved by the Kuehns' suit.
¶22 Finally, we review the trial court's conclusion that "[t]he standard of result and outcome" could not support an award of $27,460 in attorney's fees. As we have explained, consideration of the amount involved and the degree of success attained are not only proper considerations in a fee determination, see WIS. STAT. § 425.308(2)(c); SCR 20:1.5(a)(4); Hensley, 461 U.S. at 430 n.3; but this factor is "particularly crucial where a plaintiff is deemed `prevailing' even though he succeeded on only some of his claims for relief," id. at 434. To determine whether a prevailing plaintiff's requested attorney fees merit reduction in cases of partial or limited success, a court should consider whether a plaintiff failed to prevail on some claims and whether the plaintiff achieved a level of success that justifies the hours reasonably expended. Id. Where a plaintiff's claim for relief involves a common core of facts, the court "should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation" as a whole. Id. at 435. Moreover, "[t]he inquiry does not end with a finding that the plaintiff obtained significant relief. A reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole." Id. at 440.
¶23 In their amended complaint, the Kuehns asserted eleven causes of action alleging some twenty-plus statutory violations. The Kuehns sought recovery of actual damages and rescission of their contract. The record supports the trial court's conclusion that, had the Kuehns participated in the DATCP restitution program, they would have had their time-share contract rescinded and recovered a good portion of what they had paid under it. The Kuehns ultimate settlement with Peppertree for $10,750 and cancellation of their contract thus represents a relatively modest benefit to them as compared to what their recovery would have been under DATCP consent order.[10] The trial court's conclusion that the Kuehns achieved a very limited degree of success in this litigation is thus not unreasonable, and the court did not erroneously exercise its discretion in giving considerable weight to this factor in awarding less in attorney fees than the amount the Kuehns requested. See, e.g., Pierce v. Norwick, 202 Wis. 2d 587, 597-99, 550 N.W.2d 451 (Ct. App. 1996) (affirming the trial court's reduction of requested attorney fees from $14,806 to $3,875 in a landlord-tenant case where the trial court found that "the amount of attorney fees requested to be extreme and totally out of proportion to the case in general and the trial results in particular").[11]
¶24 In sum, having reviewed the record, we conclude that, notwithstanding the trial court's error in halving the requested billing rate, the overall fifty-percent reduction it ordered in the Kuehns' requested fees was reasonable and supported by the record. Accordingly, the trial court's award of $13,730 in attorney's fees did not constitute an erroneous exercise of discretion and we affirm it.[12]
CONCLUSION
¶25 For the reasons discussed above, we affirm the judgment of the trial court.[13]
By the Court. Judgment affirmed.
NOTES
[1] All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
[2] See Pliss v. Peppertree Resort Villas, Inc., 2003 WI App 102, 264 Wis. 2d 735, 663 N.W.2d 851; and State v. Peppertree Resort Villas, Inc., 2002 WI App 207, 257 Wis. 2d 421, 651 N.W.2d 345.
[3] WISCONSIN STAT. § 425.308, a part of the Wisconsin Consumer Act, provides:
Reasonable attorney fees. (1) If the customer prevails in an action arising from a consumer transaction, the customer shall recover the aggregate amount of costs and expenses determined by the court to have been reasonably incurred on the customer's behalf in connection with the prosecution or defense of such action, together with a reasonable amount for attorney fees.
(2) The award of attorney fees shall be in an amount sufficient to compensate attorneys representing customers in actions arising from consumer transactions. In determining the amount of the fee, the court may consider:
(a) The time and labor required, the novelty and difficulty of the questions involved and the skill requisite properly to conduct the cause;
(b) The customary charges of the bar for similar services;
(c) The amount involved in the controversy and the benefits resulting to the client or clients from the services;
(d) The contingency or the certainty of the compensation;
(e) The character of the employment, whether casual or for an established and constant client; and
(f) The amount of the costs and expenses reasonably advanced by the attorney in the prosecution or defense of the action.
WISCONSIN STAT. § 707.57(1) provides that "[i]f ... any ... person subject to this chapter fails to comply with this chapter or the time-share instrument, any person ... adversely affected by the failure to comply has a claim for appropriate relief, including but not limited to damages, injunctive or declaratory relief, specific performance and rescission." In addition, "[a] person ... entitled to relief ... is also entitled to recover costs, disbursements and reasonable attorney fees."
[4] The twelve factors identified in Hensley were:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases....
Hensley v. Eckerhart, 461 U.S. 424, 430 n.3 (1983).
[5] SUPREME COURT RULE 20:1.5(a) provides:
A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
[6] The supreme court has identified several purposes served by fee-shifting statutes like WIS. STAT. §§ 707.57(1)(b) and 425.308: (1) the recovery of attorney fees removes a disincentive for individuals to bring legal actions to enforce their rights because the amount of pecuniary loss is often small compared with the cost of litigation; (2) an individual who brings such a suit acts as a "private attorney general" enforcing not only his or her individual rights but, in the aggregate, the public's rights as well; (3) such suits have a deterrent effect which strengthens the bargaining power of consumers; and (4) private actions provide a necessary backup to the state's enforcement powers where the sheer number of violations prevent the state from proceeding against all violators. See Shands v. Castrovinci, 115 Wis. 2d 352, 358-59, 340 N.W.2d 506 (1983).
[7] As we have noted, the DATCP conducted the investigation and negotiations for the consent order. An assistant attorney general with the Wisconsin Department of Justice represented the State in court proceedings regarding the consent order. See State v. Peppertree Resort Villas, Inc., 2002 WI App 207, 257 Wis. 2d 421, 651 N.W.2d 345.
[8] The Kuehns provided supporting affidavits from three local attorneys engaged in consumer litigation work who attested to the Kuehns' attorney's experience and the reasonableness of the hourly rate sought. Peppertree countered with only a State Bar of Wisconsin self-report survey showing that the average hourly rate for sole practitioners in Wisconsin in 2001 was $126, with the median rate being $125 and the rate at the 95th percentile being $185.
[9] Both parties devote a significant portion of their briefs to assigning blame to the other for the failure of a more timely settlement of this case. The Kuehns insist that Peppertree refused to participate in settlement discussions and did not make an acceptable offer until three weeks prior to trial. Peppertree, on the other hand, characterizes the Kuehns' settlement offers as "unreasonable" and "inflated," and it notes that the Kuehns rejected the DATCP settlement and its own individual proposal made soon after the Kuehns had retained counsel. The trial court's written decision, however, does not cite the failure to settle earlier as a basis for its conclusion that the case was "over litigated." Rather, the court points to the Kuehns' use or abuse of the discovery process.
[10] Under the DATCP consent order, Peppertree would have been obligated to cancel the Kuehns' contract and return to them "all money paid to Peppertree less the value of any benefits [they] may have enjoyed under the contract." The Kuehns estimated at the time that they had paid Peppertree some $8,000 in principal and interest and $1,800 in maintenance fees. (In their amended complaint, the Kuehns allege that they paid a total of $11,000 "pursuant to the transaction involving" Peppertree.) The Kuehns also estimated their usage value at $400 and disclosed that they had sold their time-share for $1,500. They recovered $10,750 as damages in this action. The net benefit of this litigation (the amount the Kuehns recovered over and above what was available to them via the DATCP consent order) was thus considerably less than $10,750. We agree with Peppertree that the Kuehns' net benefit from pursuing individual litigation likely did not exceed, at best, several thousand dollars.
[11] The Kuehns also argue that their individual suit benefited them in that they were able to secure placement by Peppertree on a "do not call" list, as well as obtaining Peppertree's agreement to request that all adverse credit information arising from the transaction be deleted from the Kuehns' credit reports. It appears, however, that Peppertree had never reported adverse credit information on the Kuehns' based on this transaction. Also, nothing in the record suggests that their placement on a "do not call" list was a "big ticket" item that could not have been obtained in conjunction with the DATCP settlement or by an independent request to Peppertree following that settlement.
[12] The Kuehns contend that the trial court also erred by not considering their attorney's supplemental affidavit and request for additional fees ($1,280.00) for replying to Peppertree's objection to the initial fee request. They point out that fees may be awarded for time expended in pursuing an award of attorney fees. See Chmill v. Friendly Ford-Mercury, 154 Wis. 2d 407, 415, 453 N.W.2d 197 (Ct. App. 1990). We conclude, however, that the Kuehns are not entitled to relief from the appealed judgment on account of their supplemental request for fees. First, on the issue of the reasonableness of the attorney's fees initially requested, the Kuehns did not "significantly prevail," in that their requested fees were reduced by fifty percent, a reduction that we affirm. Second, we note that the initial fee request included 7.8 hours of attorney time for the preparation and submission of the fee request. Thus, the award we affirm includes $780 in fees for litigating the fee award, an amount we deem reasonable given the outcome on the issue.
[13] We note that as this decision was being prepared for release, the supreme court decided Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, No. 02-1915. We have reviewed Kolupar and conclude that our disposition in this appeal is consistent with both the analysis and the result in Kolupar. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590381/ | 14 So. 3d 711 (2009)
DERR PLANTATION, INC.
v.
Thomas L. SWAREK and Thomas A. Swarek.
No. 2007-IA-02031-SCT.
Supreme Court of Mississippi.
August 6, 2009.
*713 Robert R. Bailess, Kenneth B. Rector, Vicksburg, attorneys for appellant.
Bradley S. Clanton, Walker (Bill) Jones, Barry W. Ford, Charles Willis Pickering, Eric Wynn Hospodor, Jackson, attorneys for appellees.
Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.
CHANDLER, Justice, for the Court.
¶ 1. Thomas L. Swarek and Thomas A. Swarek (the Swareks) filed a complaint in the Chancery Court of Issaquena County against Derr Plantation, Inc. (DPI), a Mississippi corporation. The complaint alleged that DPI had breached a contract to lease and sell to the Swareks an operational farm including acreage, equipment, and livestock. The Swareks requested remedies including specific performance, a preliminary injunction, and compensatory and punitive damages. After the chancellor denied both parties' summary judgment motions, the Swareks successfully petitioned the chancery court to transfer the case to circuit court.
¶ 2. This Court granted DPI's petition for an interlocutory appeal of the transfer order. See Miss. R.App. P. 5. We find that because this case was within the jurisdiction of the chancery court, the chancery court erred by ordering its transfer to the circuit court. Therefore, we reverse the *714 transfer order and remand this case to the Chancery Court of Issaquena County for further proceedings consistent with this opinion.
FACTS
¶ 3. In December 2004, Thomas L. Swarek entered into negotiations with DPI for the lease and purchase of an approximately 8,350-acre farm known as Derr Plantation, which lies in Issaquena and Sharkey Counties along the Mississippi River. The contemplated lease/purchase included real estate, equipment, and livestock. On March 1, 2005, the Swareks filed a complaint and a lis pendens notice in the Chancery Court of Issaquena County. In the complaint, the Swareks asserted that the parties had negotiated a contract providing for the Swareks' lease and purchase of Derr Plantation; the Swareks attached the contract documents to the complaint. These documents provided for a lease price of $750,000 payable over a two-year period and a sale price of 7.5 million dollars. The Swareks alleged that DPI had breached the contract after the Swareks refused to pay a higher price for the property, and that DPI's actions regarding the breach were willful, intentional, and fraudulent.
¶ 4. The complaint stated that the Swareks were ready, willing, and able to perform the contract and were willing to close at the contract price either now or later, and that "[i]t is difficult to measure the damages for refusing to sell the property to Plaintiffs, hence Plaintiffs are requesting specific performance of the contract of sale and are filing a lis pendens with this complaint." The complaint included the following counts:
COUNT ONE SPECIFIC PERFORMANCE
7. Because of the nature of the breach of the contract herein, Plaintiffs are entitled to an order of this court directing specific performance ordering the Defendants to carry out the terms of the contract documents Exhibit A, B, and C.
COUNT TWO PRELIMINARY INJUNCTION
8. Because the failure to permit the Plaintiffs to take possession of the property under the lease within the next 30 days will cause them immediate damage for which there is no adequate remedy at law, they are entitled to a preliminary injunction granting them a lease of the property according to the terms specified in the contract documents.
COUNT THREE DAMAGES
9. Even if the Defendants go ahead and deliver the property according to the contract, the Plaintiffs have been damaged in that the cost of any loan will now be at least 1% per annum higher than it would have been had there been no breach. For breach of the agreement to lease, Plaintiffs are entitled to actual and consequential damages of not less than $500,000.00. For breach of the agreement to convey the equipment and cattle, Plaintiffs are entitled to actual and consequential damages of not less than $175,000.00. For breach of the agreement to sell the real estate, Plaintiffs are entitled to recover actual and consequential damages of not less than $1,000,000.00. By reason of its willful, intentional, and gross breach of this contract, [Plaintiffs] are entitled to recover punitive damages of not less than $5,000,000.00 together with reasonable attorneys fees and costs. Plaintiffs are entitled to pierce the corporate veil and are entitled to a judgment against the Defendants, jointly and severally.
*715 The Swareks prayed for a preliminary injunction and for "specific performance according to the terms of the contract documents and/or award actual and consequential damages of $1,750,000.00 and punitive damages of $5,000,000.00 together with attorney's fees and costs...."
¶ 5. DPI filed an answer without contesting the jurisdiction of the trial court, and a counterclaim for reasonable attorney's fees and costs and for damages suffered as a result of the filing of the lis pendens notice. In the answer, DPI's primary contention was that there was no breach of contract because the parties had never formed a contract. Some discovery ensued and, more than one year after filing their complaint, the Swareks filed a motion for partial summary judgment on April 8, 2006, on the limited question of whether a valid contract existed under Mississippi law. DPI responded and filed its own competing motion for summary judgment, asserting that there was no contract. On December 4, 2006, the chancellor denied both parties' summary judgment motions, finding that there were genuine issues of material fact for trial. The Swareks petitioned this Court for an interlocutory appeal, which was denied.
¶ 6. On June 1, 2007, two years and three months after the Swareks initiated the case in chancery court, and after suffering adverse rulings from the chancery court and this Court, they filed a motion to transfer the case to circuit court. At the motion hearing, the Swareks acknowledged their complaint's request for specific performance, but they contended that due to the passage of time, they now preferred the alternatively-pleaded remedy of compensatory and punitive damages. The Swareks argued that when they filed the complaint, their main issue for decision was enforcement of a contract, but once the purported contract's validity came into question, the nature of the case changed to a legal claim for breach of contract. Invoking a right to a jury trial, the Swareks contended that the breach-of-contract issue appropriately should be tried by a jury in circuit court. DPI argued, inter alia, that the case should remain in chancery court because the Swareks' complaint for specific performance was within the jurisdiction of the chancery court and the Swareks' request for a transfer was belated.
¶ 7. The chancery court ruled that the complaint ultimately sounded in breach of contract, and that the chancery court lacked jurisdiction over breach-of-contract claims. The chancery court granted the motion to transfer, and it entered an order transferring the case to the Circuit Court of Issaquena County. This Court granted DPI's petition for an interlocutory appeal on the question of whether the chancery court erred in granting the Swarek's motion to transfer the case to circuit court.
STANDARD OF REVIEW
¶ 8. "Jurisdiction is a question of law, which this Court reviews de novo." Issaquena Warren Counties Land Co. v. Warren County, 996 So. 2d 747, 749 (Miss. 2008) (citing Trustmark Nat'l Bank v. Johnson, 865 So. 2d 1148, 1150 (Miss. 2004)). The grant of a motion to transfer from chancery court to circuit court, or vice-versa, is a jurisdictional question that is subject to de novo review. Id. (citing RAS Family Partners v. Onnam Biloxi, LLC, 968 So. 2d 926, 928 (Miss.2007)).
ANALYSIS
¶ 9. Under the Mississippi Constitution of 1890, circuit courts are courts of general jurisdiction, while chancery courts have limited jurisdiction over "all matters in equity" and other designated matters. See Miss. Const. art. 6 § 156 (granting *716 circuit courts "original jurisdiction in all matters civil and criminal in this state not vested by this Constitution in some other court"); Miss. Const. art. 6 § 159, § 160, § 161. The constitution contains complementary provisions for the transfer of cases commenced in the wrong forum. Miss. Const. art. 6 § 157 ("[a]ll causes that may be brought in the circuit court whereof the chancery court has exclusive jurisdiction shall be transferred to the chancery court"); Miss. Const. art. 6 § 162 ("[a]ll causes that may be brought in the chancery court whereof the circuit court has exclusive jurisdiction shall be transferred to the circuit court").
¶ 10. The jurisdiction of the chancery court is a question of subject matter jurisdiction that may be raised by either party at any time. Burnette v. Hartford Underwriters Ins. Co., 770 So. 2d 948, 951 (Miss.2000). However, this Court is prohibited by the Mississippi Constitution from reversing on this issue after a final judgment. Id. (citing Miss. Const. art. 6 § 147). A party aggrieved by the trial court's grant or denial of a motion to transfer may seek relief by pursuing an interlocutory appeal, as DPI has done here. Id.
¶ 11. "To determine whether a court has subject matter jurisdiction, we look to the face of the complaint, examining the nature of the controversy and the relief sought." RAS Family Partners, 968 So.2d at 928 (citing Durant v. Humphreys Mem'l Hosp./Extended Care Facility, 587 So. 2d 244, 250 (Miss.1991)). The reviewing court must look to the substance, not the form, of a claim to determine whether that claim is legal or equitable. Copiah Med. Assocs. v. Miss. Baptist Health Sys., 898 So. 2d 656, 661 (Miss.2005). We have consistently held that if it appears from the face of a well-pleaded complaint that an independent basis for equity jurisdiction exists, our chancery courts may hear and adjudge law claims. RE/Max Real Estate Partners, Inc., v. Lindsley, 840 So. 2d 709, 711-12 (Miss.2003); Tillotson v. Anders, 551 So. 2d 212, 213 (Miss.1989) (citing Penrod Drilling Co. v. Bounds, 433 So. 2d 916 (Miss.1983); Burnett v. Bass, 152 Miss. 517, 521, 120 So. 456 (1929)). In that circumstance, the legal claims lie within the pendent jurisdiction of the chancery court. Tillotson, 551 So.2d at 213. As long as the chancery court's equity jurisdiction has attached, the chancery court has discretion to award legal and punitive damages. RE/Max Real Estate Partners, Inc., 840 So.2d at 712 (citing S. Leisure Homes v. Hardin, 742 So. 2d 1088, 1090 (Miss.1999)).
¶ 12. Conversely, "if the complaint seeks legal relief, even in combination with equitable relief, the circuit court can have proper subject matter jurisdiction." RAS Family Partners, 968 So.2d at 928 (citing IP Timberlands Operating Co. v. Denmiss Corp., 726 So. 2d 96, 111 (Miss. 1998)). In fact, if there is some doubt as to whether a case is within the jurisdiction of the chancery court, the case is better tried in circuit court because "it is more appropriate for a circuit court to hear equity claims than it is for a chancery court to hear actions at law since circuit courts have general jurisdiction but chancery courts enjoy only limited jurisdiction." Burnette, 770 So.2d at 952 (quoting McDonald's Corp. v. Robinson Indus., Inc., 592 So. 2d 927, 934 (Miss.1991)). This Court also has cited the constitutional right to a jury trial as a reason for resolving doubtful cases in favor of circuit court jurisdiction. Burnette, 770 So.2d at 952; S. Leisure Homes, 742 So.2d at 1090. Nonetheless, a party cannot, by invoking the right to a jury trial, secure a transfer to circuit court of a case properly within the chancery court's jurisdiction. See Issaquena *717 Warren Counties Land Co., LLC, 996 So.2d at 751.
¶ 13. The Swareks argue that the transfer to circuit court was appropriate because the substance of their complaint was breach of contract, a claim properly heard in circuit court. It is true that in several recent cases, this Court determined that the chancery court lacked jurisdiction over a breach-of-contract case, and that the circuit court had exclusive jurisdiction. See Tyson Breeders, Inc. v. Harrison, 940 So. 2d 230, 234 (Miss.2006) (claim for breach of a contract for Tyson to provide Harrison with flocks of breeder hens); ERA Franchise Sys., Inc. v. Mathis, 931 So. 2d 1278, 1283-84 (Miss.2006) (primary claims for various breaches of a contract governing the parties' business relationship); Copiah Med. Assocs., 898 So.2d at 661 (claims of breach of contract and for specific performance of a lease agreement); Union Nat'l Life Ins. Co. v. Crosby, 870 So. 2d 1175, 1182 (Miss.2004) (various claims of fraud and bad faith breach of insurance contracts); Burnette, 770 So.2d at 952 (claims of bad-faith breach of an insurance contract). Each of these cases involved a breach-of-contract claim for which damages, a legal remedy, was the appropriate remedy. See Tyson Breeders, 940 So.2d at 234 quoting Roberts v. Spence, 209 So. 2d 623, 626 (Miss.1968) ("ordinarily a court of equity will not attempt to enforce a contract by specific performance where the parties have an adequate remedy at law to recover damages growing out of a party's failure to carry out a contract's terms").
¶ 14. In Tyson Breeders, we were careful to distinguish cases involving a "unique matter such as real estate where specific performance is a particularly appropriate remedy." Id.; see also Copiah Med. Assocs., 898 So.2d at 660 (citing Osborne v. Bullins, 549 So. 2d 1337, 1340 (Miss.1989) (recognizing specific performance as a traditional remedy for breach of a land-sale contract, especially for a seller's breach)). In Copiah, we determined that a lease agreement for continued occupancy and use of the premises for a specific period of time for a specific purpose was not subject to the equitable remedy of specific performance, because that remedy would require periodic court supervision. Id. at 660-61 (citing Sec. Builders, Inc. v. Sw. Drug Co., 244 Miss. 877, 885-86, 147 So. 2d 635, 639 (1962)). Because specific performance was not an available remedy for the breach, we held that the case was appropriately transferred from the chancery court to the circuit court. Id. at 661. We distinguished the case from Osborne, which had recognized specific performance as a remedy for a breach of a land-sale contract. Id. at 660 (citing Osborne, 549 So.2d at 1340).
¶ 15. A claim for specific performance as a remedy for breach of contract is within the equity jurisdiction of the chancery court. Lee v. Coahoma Opportunities, Inc., 485 So. 2d 293, 294-95 (Miss. 1986). The Swareks' complaint alleged that DPI had breached an agreement to lease and sell them a large farm, and they claimed that specific performance was the most appropriate remedy due to the unique nature of the real estate and accompanying livestock and farm equipment. Accordingly, they requested that the chancery court order DPI to perform the agreement by delivering the property according to the contract terms. They also requested a preliminary injunction entitling them to immediate possession of the property under the lease.
¶ 16. From our review of the nature of this controversy and the relief sought, it is apparent that the Swareks' primary claim is for specific performance as a remedy for breach of a real estate *718 contract, an equitable claim. The requested injunctive relief also is within the chancery court's equity jurisdiction. Issaquena Warren Counties Land Co., 996 So.2d at 751. We are fully cognizant that the Swareks also prayed that the court award them compensatory damages as an alternative to, or in addition to, specific performance. In a suit for specific performance, the court may order specific performance along with damages for the defendant's delay in performing the contract. McVay v. Castenara, 152 Miss. 106, 112, 119 So. 155, 156 (1928). Or, the court may, in its discretion, reject the plaintiff's claim that specific performance is the most appropriate remedy and instead award compensatory damages as the entire remedy for the breach. Frierson v. Delta Outdoor, Inc., 794 So. 2d 220, 225 (Miss.2001). In a suit for specific performance, the possibility that the chancery court will reject specific performance and instead award compensatory damages does not defeat that court's equity jurisdiction. This is because:
It has long been settled in this state, as one of the pre-eminent principles of equity procedure, that the Chancery Court having taken jurisdiction on any one ground of equity, will thereupon proceed in the one suit to a complete adjudication and settlement of every one of all the several disputed questions materially involved in the entire transaction, awarding by a single comprehensive decree all appropriate remedies, legal as well as equitable, although all the other questions involved would otherwise be purely of legal cognizance; and in this state, the rule goes even to the extent that if the ground of equity fail under the proof, the cause may still be retained to a complete final decree on the remaining issues although the latter present legal subjects only and the decree would cover only legal rights and grant none but legal remedies, that having taken jurisdiction the power of the court to administer full relief is limited by nothing but justice itself.
McClendon v. Miss. State Highway Comm'n, 205 Miss. 71, 78, 38 So. 2d 325, 327 (1949) (citation omitted).
¶ 17. The Swareks argue that their claim for punitive damages for willful and intentional breach of contract implicated the jurisdiction of the circuit court. We have stated that the fact that punitive damages are sought is a "strong indicator" that the matter is legal, rather than equitable. ERA Franchise Sys., Inc., 931 So.2d at 1282 (citing Crosby, 870 So.2d at 1179). However, the Swarek's addition of a punitive-damages claim, which is an extraordinary remedy not favored in Mississippi law, Bradfield v. Schwartz, 936 So. 2d 931, 936 (Miss.2006), does not outweigh their request for specific performance, which is recognized as a traditional and appropriate remedy for the wrong alleged. Osborne, 549 So.2d at 1340. Moreover, once the equity jurisdiction of the chancery court has attached, the chancery court has the power to award "legal and even punitive damages." S. Leisure Homes, 742 So.2d at 1090.
¶ 18. Having filed an action for specific performance within the chancery court's jurisdiction, the fact that the Swareks now express a preference for a legal remedy does not divest the chancery court of jurisdiction. In City of Starkville v. 4-County Electric Power Association, 909 So. 2d 1094, 1101 (Miss.2005), Starkville argued that the case should have been transferred from chancery court to circuit court because, since the time of its filing, the suit had "become basically a breach of contract suit wherein Starkville seeks to recover compensatory and punitive damages from 4-County for its failure to comply with the terms of the 1963 Agreement." This *719 Court rejected Starkville's argument. Id. at 1102. The Court looked to the prayer in the complaint which Starkville itself had filed in chancery court. Id. at 1101. The prayer requested relief that is parallel in many respects to that requested by the Swareks, including: (1) declaring the validity and enforceability of the contract; (2) specific performance of the contract; (3) a temporary and a permanent injunction; (4) actual and punitive damages, and (5) a prayer for general relief. Id. This Court found that the fundamental substance of Starkville's action was equitable. Id. at 1102. We stated:
When we review Starkville's complaint in today's case, we can state with confidence that the relief sought on specific performance of a contract is typically the type of relief to be considered by our chancellors sitting as a court of equity. Additionally, Starkville presumably made a knowing and conscious decision to commence this litigation in chancery court (as opposed to circuit court) when it filed its complaint in 1995. This case has been litigated in chancery court, appealed to this Court, and relitigated in chancery court. As we stated in Rogers [v. Eaves, 812 So. 2d 208, 211-12 (Miss. 2002)], because the chancery court had already heard extensive litigation in the case, it was certainly in the best position to hear and resolve the relevant issues in the related case which had been commenced. In fact, in today's case, the same chancellor has been involved with the litigation of this case since its inception in 1995. Who was in a better position to fairly and correctly decide the issues in this case than the learned chancellor who had presided over all the proceedings in this case from the very beginning?
Id. (citations omitted). As in City of Starkville, the chancery court acquired jurisdiction over the Swareks' complaint because the fundamental nature of their claim was for the equitable remedy of specific performance; additionally, the chancellor has presided over the matter through discovery and dispositive motions and she is thus well-positioned to fairly and correctly decide the issues to be tried.
¶ 19. The Swareks' argument that their right to a jury trial would be infringed if this case remained in chancery court does not avail them.[1] The Mississippi Constitution provides that "[t]he right of trial by jury shall remain inviolate." Miss. Const. art. 3, § 31. "In `chancery court, with some few statutory exceptions, the right to jury is purely within the discretion of the chancellor, and if one is empaneled, its findings are totally advisory.'" Burnette, 770 So.2d at 952 (quoting Louisville & Nashville R.R. v. Hasty, 360 So. 2d 925, 927 (Miss.1978)). However, no jury trial is required by section 31 for cases within the chancery court's jurisdiction. Re/Max Real Estate Partners, Inc., 840 So.2d at 713. Chancellors historically have had jurisdiction over claims for specific performance of a real estate contract. McVay, 152 Miss. at 112, 119 So. at 156. It may be expected that the chancery court, in adjudicating a request for specific performance, also will be called upon to adjudicate the validity, construction, definiteness or enforceability of the purported contract. See Busching v. Griffin, 542 So. 2d 860 (Miss.1989); Hutton v. Hutton, 239 Miss. 217, 119 So. 2d 369 (1960); Keene v. Lowenthal, 83 Miss. 204, 35 So. 341 (1903). As we have discussed, the substance of the Swareks' complaint was for specific performance *720 of a real estate contract. Because this case was within the chancery court's jurisdiction, the Swareks cannot secure a transfer to circuit court by requesting a jury trial.
CONCLUSION
¶ 20. The primary thrust of the Swareks' complaint was a request for equitable relief in the form of specific performance of a real estate contract. Specific performance is a particularly appropriate remedy for breach of a real estate contract, and claims for specific performance are within the historic equity jurisdiction of the chancery court. Therefore, the chancery court had jurisdiction over this case, and it erred by granting the Swareks' motion to transfer the case to circuit court. We reverse the transfer order and remand this case to the chancery court for further proceedings consistent with this opinion. If the chancellor in her discretion determines that the Swareks are entitled to relief but specific performance is not warranted, she is empowered to order appropriate legal or equitable relief.
¶ 21. REVERSED AND REMANDED.
WALLER, C.J., CARLSON, P.J., LAMAR, KITCHENS AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. RANDOLPH, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., CARLSON, P.J., LAMAR, CHANDLER AND PIERCE, JJ.; GRAVES, P.J., JOINS IN PART. DICKINSON, J., NOT PARTICIPATING.
RANDOLPH, Justice, specially concurring.
¶ 22. I agree with the Majority's jurisdictional analysis and conclusion that the chancery court erred in granting the Swareks' motion to transfer. I write separately to add that application of the doctrine of judicial estoppel and the underlying purposes of the Mississippi Rules of Civil Procedure[2] should preclude a litigant from "testing the waters" in one court, suffering adverse rulings, then deciding that their initial declaration regarding jurisdiction was erroneous, and seeking transfer to a different court or judge.
¶ 23. On March 1, 2005, the Swareks filed their Complaint in the Chancery Court of Issaquena County. According to Mississippi Rule of Civil Procedure 11(a), this signed pleading "constitutes a certificate that the attorney has read the pleading or motion; that to the best of the attorney's knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay." Miss. R. Civ. P. 11(a). On June 1, 2007, nearly two years and three months later, and following adverse rulings from the chancery court and this Court, the Swareks filed a motion to transfer the case to circuit court.
¶ 24. Without question, "[u]nder Rule 12(h)(3) a question of subject matter jurisdiction may be presented at any time, either by motion or answer. Further, it may be asserted as a motion for relief from a final judgment under MRCP 60(b)(4) or may be presented for the first time on appeal." Miss. R. Civ. P. 12(h)(3) cmt. See also Burnette v. Hartford Underwriters Ins. Co., 770 So. 2d 948, 951 (Miss.2000) ("Miss. R. Civ. P. 12(h)(3) allows *721 either party to move the court for a transfer based on lack of subject-matter jurisdiction."). Nonetheless, under the doctrine of judicial estoppel, a party is precluded:
"... from asserting a position, benefitting from that position, and then, when it becomes more convenient or profitable, retreating from that position later in the litigation." Dockins v. Allred, 849 So. 2d 151, 155 (Miss.2003). "Because of judicial estoppel, a party cannot assume a position at one stage of a proceeding and then take a contrary stand later in the same litigation." Id.
In re Estate of Richardson, 903 So. 2d 51, 56 (Miss.2005). Accordingly, litigants should be cautioned against volitionally commencing a suit in one court, proceeding to the point of adverse rulings, and only then, when said position is deemed inconvenient or unprofitable, retreating therefrom, see Dockins, 849 So.2d at 155, and seeking a motion to transfer to another court and judge. By creating the appearance of forum- or judge-shopping, the litigant risks application of the doctrine of judicial estoppel.
WALLER, C.J., CARLSON, P.J., LAMAR, CHANDLER AND PIERCE, JJ., JOIN THIS OPINION. GRAVES, P.J., JOINS THIS OPINION IN PART.
NOTES
[1] Although the right to a jury trial usually is raised by a defendant who is unhappy with the plaintiff's chosen forum, the Swareks did not waive their ability to raise their right to a jury trial by filing the case in chancery court. Burnette, 770 So.2d at 951-52.
[2] Namely, "to secure the just, speedy, and inexpensive determination of every action." Miss. R. Civ. P. 1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590435/ | 972 So. 2d 916 (2007)
Kenneth L. GRIMSLEY, Appellant,
v.
STATE of Florida, Appellee.
No. 5D07-2125.
District Court of Appeal of Florida, Fifth District.
November 30, 2007.
Rehearing Denied January 8, 2008.
*917 Kenneth L. Grimsley, Lowell, pro se.
Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
Kenneth L. Grimsley appeals the denial of his fifth rule 3.800(a) motion to correct illegal sentence.[1] In this successive motion, Grimsley once again argues that his forty-year habitual violent felony offender ("HVFO") sentence on the charge of robbery with a firearm is illegal because it exceeds the thirty-seven-year HVFO sentence that he agreed to at the time of his plea. Even if this claim were cognizable under rule 3.800(a), the record clearly shows that Grimsley entered an open plea to the bench, aware that he faced up to a life sentence on this charge. Therefore, the trial court once again properly denied Grimsley's claim, citing to portions of the plea transcript that refute it.[2]
After reviewing Grimsley's latest successive claim, this court issued a Spencer[3] show cause order directing Grimsley to demonstrate "why he should not be denied further pro se access to the. Court for any proceeding to further attack the conviction and sentence rendered below in Marion County Circuit Court case no. 96-1003-A-Z." We have carefully reviewed Grimsley's response and find that it too lacks merit.
At this point, Grimsley is abusing the judicial process by his successive attacks upon his conviction and sentence. In order to conserve judicial resources, we prohibit Kenneth L. Grimsley from filing with this Court any further pro se pleadings concerning Marion County Circuit Court case no. 96-1003-A-Z. The Clerk of this Court is directed not to accept any further pro se filings concerning this case. Any further pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar. See Isley v. State, 652 So. 2d 409, 410 (Fla. 5th DCA 1995) ("Enough is enough.") The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures See § 944.279(1), Fla. Stat. (2005); Simpkins v. State, 909 So. 2d 427, 428 (Fla. 5th DCA 2005).
AFFIRMED; future pro se filings PROHIBITED; certified opinion FORWARDED to Department of Corrections.
THOMPSON, ORFINGER, and LAWSON, JJ., concur.
NOTES
[1] See Fla. R.Crim. P. 3.800. Grimsley has also previously filed in this court two petitions for belated appeal, one appeal from the denial of his motion pursuant to Florida Rule of Criminal Procedure 3.850, two original petitions for writ of habeas corpus, and three appeals from the denial of petitions for writ of habeas corpus filed at the trial court level.
[2] Although the transcript makes reference to a thirty-seven year plea offer, it is clear that this offer had been rejected prior to the plea proceeding, and that Grimsley knowingly and voluntarily entered an open plea to the bench, with no agreed disposition.
[3] State v. Spencer, 751 So. 2d 47 (Fla.1999). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590421/ | 686 N.W.2d 186 (2004)
Patrick WERNIMONT, Appellant,
v.
William Joe WERNIMONT, Appellee.
No. 02-1284.
Supreme Court of Iowa.
September 1, 2004.
*188 Charles A. Blades, Cedar Rapids, for appellant.
Constance Alt and Theresa C. Davis of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appellee.
LAVORATO, Chief Justice.
In this personal injury action, Patrick Wernimont sued his father, William Wernimont, for injuries arising out of the use of a skid loader that William owned. Patrick alleged that as his employer, William owed him a duty to provide reasonably safe machinery and a reasonably safe place to work. Patrick also alleged William failed to warn him of the danger the skid loader presented under the circumstances in which it was used. The district court sustained William's motion for summary judgment on the issues of employment and failure to warn. Patrick appealed and we transferred the case to the court of appeals, which affirmed. We granted further review and on that review we vacate the court of appeals decision and reverse the district court judgment on both issues. We remand the case for further proceedings consistent with this opinion.
I. Background Facts.
The incident giving rise to this lawsuit happened on William's farm on December 28, 2000. Patrick suffered crushing injuries to his feet when the hydraulic lift arms of a skid loader suddenly fell and pinned his feet to the top of the skid loader where he was standing. William had purchased the skid loader in 1993 and owned it on the date of the incident.
Patrick had been a hired hand on his father's farm for about eight years until August of 2000 three months before the incident. During this employment, William paid Patrick $1000 per month. The employment was not full-time; rather Patrick helped his father when he needed Patrick to do regular chores and other work. In addition to this employment, Patrick had his own farm. After August of 2000, Patrick continued farming and worked for a tree service. Patrick and William had a history of exchanging work.
On the day of the incident, William was feeding cattle on his farm. Some of the cattle belonged to Patrick and some belonged to William. William was using the skid loader in question for this chore. The skid loader had a bale spear (used to move hay bales) attached to the front end. The bale spear had on it a round hay bale, weighing over 1200 pounds. As William was operating the skid loader through a gate to the cattle, he raised the boom to see that he was not going to hit the cattle. While driving through the gate, William hit a patch of snow, causing the skid loader to tip forward on its front two wheels. The hay bale was touching the ground, and the back two wheels of the skid loader were off the ground.
William switched off the skid loader and went into the house for Patrick's help to right the skid loader. Although Patrick was ill with the flu, he felt well enough to help. While Patrick was dressing, William retrieved his tractor and log chain to pull the skid loader upright, but the skid loader was still "tippy." William then told Patrick to stand on the back-end of the skid *189 loader to counterbalance it. Suddenly, the boom dropped, pinning Patrick's feet to the skid loader.
II. Proceedings.
As a result of this incident, Patrick sued several product defendants as well as William. The product defendants eventually settled, leaving William as the only defendant.
Pertinent to this appeal, Patrick alleged in a count he captioned "negligence against William Joe Wernimont" that William was negligent in failing to warn him of the dangers associated with the skid loader. In a count he captioned "employer liability against William Joe Wernimont," Patrick alleged he was employed by William and for that reason William was liable to him pursuant to Iowa Rule of Civil Procedure 83 (now 1.416). Patrick further alleged that William, as his employer, was negligent in one or more of the following particulars:
(a) in failing to provide plaintiff with reasonably safe machinery;
(b) in failing to properly warn and instruct about the use of the machinery;
(c) in failing to provide a reasonably safe place to work;
(d) in operating or allowing the skid loader to be operated in an unsafe manner.
William filed a motion for summary judgment. Patrick resisted, contending there were genuine issues of material fact concerning the issue of an employer-employee relationship and one or more legally recognizable duties. Patrick filed an affidavit in support of his resistance.
The district court sustained the motion for summary judgment, concluding Patrick had not presented any evidence supporting an employer-employee relationship and that Patrick was doing a favor for his father, not work for his employer. The court also concluded that Patrick had established no duty running from William to him and therefore all of his negligence allegations, including the failure to warn, must fail.
Patrick appealed and we transferred the case to the court of appeals. The court of appeals affirmed the district court ruling, and thereafter we granted Patrick's application for further review.
III. Issues.
Although Patrick raised numerous issues, he preserved only two for our review. Those issues concern the district court's action in sustaining William's motion for summary judgment as to the employer-employee relationship and the negligence theory based on a common-law duty to warn.
IV. Scope of Review.
We review a summary judgment ruling for correction of errors at law. Summary judgment is appropriate under Iowa Rule of Civil Procedure 1.981 only when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. We examine the record before the district court to determine whether any genuine issue of material fact exists and whether that court correctly applied the law.
Hegeman v. Kelch, 666 N.W.2d 531, 533 (Iowa 2003) (citations omitted). In addition, we view the record in the light most favorable to the nonmoving party and allow that party all reasonable inferences that can be drawn from the record. Delaney v. Int'l Union UAW Local No. 94, 675 N.W.2d 832, 834 (Iowa 2004).
*190 V. Employer Liability.
As mentioned, Patrick alleged that he was employed by William on the date of the incident and for that reason William was liable to him pursuant to Iowa Rule of Civil Procedure 83, formerly rule 97, and now rule 1.416. This theory of liability becomes important from Patrick's standpoint, because under this rule, employer liability is governed by the "pure" comparative negligence principles of rule 1.416, not Iowa Code chapter 668 (comparative fault). Ries v. Steffensmeier, 570 N.W.2d 111, 113 (Iowa 1997). Thus, under rule 1.416, "proof of an employee's negligence, even if greater than fifty percent `does not bar recovery but merely mitigates damages.'" Id. (citation omitted).
Moreover, establishing the relationship is important from an injured employee's standpoint because of the duty imposed by the relationship: employers must use reasonable care to provide and maintain for their employees reasonably suitable and safe machinery and tools with which to work, and a reasonably safe place to work. Erickson v. Erickson, 250 Iowa 491, 498, 94 N.W.2d 728, 732 (1959).
William contends the following elements cited in Gabrielson v. State, 342 N.W.2d 867, 870 (Iowa 1984), must be established to prove an employer-employee relationship:
"(1) the right of selection, or to employ at will; (2) responsibility for the payment of wages by the employer; (3) the right to discharge or terminate the relationship; (4) the right to control the work; and (5) is the party sought to be held as the employer the responsible authority in charge of the work or for whose benefit the work is performed."
Gabrielson, 342 N.W.2d at 870 (citation omitted).
William asserts here that Patrick (1) was not receiving and had not received any wages from him for at least three months before the incident, (2) was self-employed at the time of the incident and worked for a tree service, and (3) had simply volunteered to help his father right the skid loader with no expectation of compensation for his assistance. In short, Patrick was simply a volunteer. In addition, William maintains that under Iowa law there is a presumption that worked performed between family members is gratuitous. For all these reasons, William concludes the principal elements for establishing an employment relationship were not present here; therefore, the district court was correct on this issue.
We have made clear that the five elements listed above are not controlling in every situation in which the issue is whether an employer-employee relationship exists. Iowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 542 (Iowa 1997). Rather, the importance of the elements bearing on the existence of an employment situation varies. Id. (identifying primary elements for independent contractors, borrowed servants, and gratuitous employees). "[I]f the issue turns on whether the person is a `gratuitous employee,' the most important element is the responsibility for payment of wages." Id.; accord Usgaard v. Silver Crest Golf Club, 256 Iowa 453, 456-57, 127 N.W.2d 636, 638 (1964). However, the parties' intent, even if not the primary factor, is always a consideration. Iowa Mut. Ins., 572 N.W.2d at 542; accord Usgaard, 256 Iowa at 456, 127 N.W.2d at 638.
Important here are the exchange-of-work cases involving farmers. In those situations, we have held that
[e]ven where there is no specific arrangement for pay, but there is an exchange of work between farmers and an agreement that under such conditions *191 one farmer performs services for the other, ... the relationship of master and servant is present.
Erickson, 250 Iowa at 495, 94 N.W.2d at 730; accord Ganzhorn v. Reep, 234 Iowa 495, 499, 12 N.W.2d 154, 156 (1943). The agreement need not be express, but can be implied. Ganzhorn, 234 Iowa at 499, 12 N.W.2d at 156. And the custom to perform services furnishes consideration for the implied agreement. Id.
Also important here is that ordinarily whether an employment relationship exists is a fact question. Heinz v. Heinz, 653 N.W.2d 334, 344 (Iowa 2002).
Patrick filed an affidavit describing the alleged employer-employee relationship as follows. From approximately 1982 through and including the time of the incident, Patrick worked on his father's farm doing regular daily chores and other work his father needed done. Such other work included assisting William in operating William's machinery, feeding livestock, clearing William's fields, and other activities that typically take place on a farm during the fall and early winter seasons. William would tell Patrick what he needed to have done and how he wanted it done. Patrick would follow his instructions. During this time period, Patrick had his own farming operations, including livestock, custom combining, and raising corn and beans on property he leased. William allowed Patrick to (1) keep cattle and sheep on William's farm, (2) store corn and beans on the farm, and (3) keep his trailer and some equipment on the farm. In addition, William plowed fields on land that Patrick leased. These services benefited Patrick financially in his own farming operations.
The affidavit also describes what allegedly happened on the date of the incident:
As of the time that I was injured on December 28, 2000, I was working for my father in generally the same fashion as I had been working for him for almost twenty years. I did not "quit working" for my father. (I misspoke when I said this in my deposition.) I was no longer receiving a wage from my father. But he continued to provide me with the services that are described above and in exchange I worked for him on his farm.
When my father came into the house after tipping the skid loader, I felt it was my duty to help him because of the work exchange agreement that is described above. As was usual and customary in our working relationship on his farm, he was in charge of what we were doing with respect to the skid loader and I was only doing what he was telling me to do. I considered myself his employee.
Viewing the affidavit most favorably to Patrick and allowing him all reasonable inferences from it, we conclude for reasons that follow that it generates a genuine issue of material fact concerning the employment relationship at the time of the incident. From Patrick's affidavit, a fact finder could reasonably find the following. First, there was an implied if not an express agreement for an exchange of work beginning in 1982 through and including the date of the incident. Second, that agreement continued even though William discontinued paying Patrick a wage in August of 2000. Third, Patrick answered his father's call for help because of this work exchange agreement and not because of any gratuitous intention, thereby overcoming the presumption that the work was performed gratuitously because of the family relation. See Youngberg v. Holstrom, 252 Iowa 815, 822, 108 N.W.2d 498, 502 (1961). Fourth, in the effort to right the skid loader, William was in charge and control, and Patrick was acting at his direction. Last, Patrick considered *192 himself an employee. Significantly, William did not controvert any of these inferences by way of affidavit or deposition.
Thus, contrary to the district court ruling, genuine issues of material fact exist on the question whether, on the date of the incident, William as an employer owed Patrick a duty to provide reasonably safe machinery and a reasonably safe place to work.
VI. Failure to Warn.
As mentioned, in a count captioned "negligence against William Joe Wernimont," the petition alleged that William was negligent because of his failure to warn Patrick about the dangers associated with the skid loader. Patrick also complains about the district court's rejection of this theory of liability.
The common-law duty to warn "is dependent upon superior knowledge and arises when one may reasonably foresee danger of injury or damage to one less knowledgeable unless forewarned of the danger." Krueger v. Noel, 318 N.W.2d 220, 225 (Iowa 1982).
To avoid summary judgment on the issue of failure to warn, Patrick had to generate a genuine issue of material fact concerning William's knowledge of the danger the skid loader presented when he directed Patrick to stand on its back-end to counterbalance it. Patrick also had to generate a genuine issue of material fact concerning his own unawareness of such danger. Again, viewing the record in the light most favorable to Patrick and allowing him all reasonable inferences from it, we think for reasons that follow that Patrick has generated such genuine issues of material fact.
William purchased the skid loader in 1993 and owned it at the time of the incident. The manual for the skid loader showed all the labels that were supposed to be on the machine. One of those labels stated: "NEVER STAND OR LEAN ANYWHERE ON LOADER OR LINKAGE WILL CRUSH YOU." The manual also warned that only the operator was supposed to be on the machine and riders were to be kept off of it. In his deposition, William claimed the label was not on the machine but admitted he had read the owner's manual. Patrick, on the other hand, testified in his deposition that he had neither seen the label nor read the owner's manual.
In his deposition, Patrick said he thought the boom, which dropped and pinned his feet to the skid loader, was raised "way over half." He therefore believed that William had engaged the boom lock pins. In his deposition, William said the boom was not raised high enough for him to use the boom lock pins, the pins were always used if the boom was high enough, and he knew the pins were a safety feature. William also said he did not tell Patrick that the boom lock pins were not engaged when Patrick came outside.
Viewing the testimony of father and son in the light most favorable to Patrick, the reasonable inference is that William had superior knowledge of the danger to Patrick that the skid loader presented when he directed Patrick to climb onto it. Moreover, Patrick was unaware of that danger. Therefore, contrary to the district court ruling, we conclude that a genuine issue of material fact exists on the allegation of the common-law duty to warn.
VII. Disposition.
Because we conclude Patrick has generated a genuine issue of material fact on the allegations of the employer-employee relationship and failure to warn, we vacate the court of appeals decision and reverse the district court judgment to the contrary. *193 We remand the case for further proceedings consistent with this opinion.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.
All justices concur except LARSON and CARTER, JJ., who take no part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590383/ | 972 So. 2d 31 (2008)
James BROWNLEE, Appellant
v.
STATE of Mississippi, Appellee.
No. 2006-KA-01399-COA.
Court of Appeals of Mississippi.
January 8, 2008.
*33 Richard B. Lewis, Clarksdale, attorney for appellant.
Office of the Attorney General by Billy L. Gore, attorney for appellee.
Before LEE, P.J., IRVING and ROBERTS, JJ.
ROBERTS, J., for the Court.
SUMMARY OF THE CASE
¶ 1. On July 25, 2006, a jury sitting before the Coahoma County Circuit Court found James Brownlee guilty of two counts of armed robbery. The jury did not recommend a life sentence. Accordingly, the circuit court sentenced Brownlee to two concurrent sentences of fifteen years with eight years suspended and seven years to serve. Following unsuccessful posttrial motions for JNOV and a new trial, Brownlee now appeals. Finding no error, we affirm.
FACTS
¶ 2. Brownlee's conviction is the result of events that transpired at the Isle of Capri Casino in Coahoma County, Mississippi on March 2, 2006. Twenty-two-year-old Jesse Green had $4,400 in income tax return proceeds and he was interested in buying a car. His brother, Eric, told him about a black Camaro Z28 that was for sale and gave him a contact number. Green spoke to a man named Ricky in Arkansas. They arranged to meet in the parking lot of the Isle of Capri Casino.
¶ 3. Green, his brother Jerryco, and Roger Leslie drove to the parking lot and waited for the black Camaro. When it did not appear, Jerryco went inside the casino to telephone Ricky. While Jerryco was inside the casino, a white Cadillac pulled up behind Green's red truck. By Green's description, one man suddenly appeared at his window and another man appeared at the driver's side window where Leslie was sitting. Both men were armed with pistols. One robber took $400 from Green's pocket, and then he "kind of butted" Green in the head with the pistol and said, "That's not all you got. You don't think I'll kill you?" He took the remaining $4,000. As one armed man attempted to flee the scene, the other armed man demanded that Leslie give him the keys to Green's truck. Once they retrieved the keys, ensuring they could not be followed, the robbers sped away from the casino against the flow of traffic and headed toward Arkansas. Several other individuals testified that they witnessed a white Cadillac speeding out of the casino parking lot heading toward Arkansas. Following the robbery, Green and Leslie reported the incident to a casino security officer who contacted the police.
¶ 4. When Coahoma County Investigator Fernando Bee arrived at the casino he interviewed Green and Leslie, and the two victims gave Bee descriptions of the robbers and of the white four-door Cadillac they were driving. They also gave Bee a partial license plate number of the vehicle; however, he was unable to match the number. The individual who robbed Green was described as having a stocky build, a dark complexion, braids or dreads, a partial gold tooth, and, according to Green, a chubby face. A day or two after the robbery, Bee received a call from Chief Deputy David Lawman in Phillips County, Arkansas. Bee met with Lawman in Arkansas and obtained photos of possible suspects, one of which was Brownlee. After returning to Mississippi, Bee developed a photo lineup consisting of photos of Brownlee and five other individuals. The following day Green came to the station to view the lineup and identified Brownlee as the person who robbed him. The next day, Leslie viewed the same lineup and also identified Brownlee as the robber. Green and Leslie then *34 signed affidavits against Brownlee and he was arrested in Arkansas soon after. However, Bee never discovered the white Cadillac, the gun used in the robbery, or any removable gold teeth.
¶ 5. At trial, Brownlee took the stand in his defense. He unequivocally stated that he did not rob Green or anyone else. He claimed he was helping his paraplegic nephew at a gym in Helena, Arkansas when the robbery occurred. He testified that his family owned a white Cadillac which he drove, but claimed the white Cadillac on the surveillance video was not his because his car had dark tinted windows and a dent on the left side and the car in the video did not.
PROCEDURAL HISTORY
¶ 6. The Coahoma County grand jury returned an indictment against Brownlee on May 30, 2006. Brownlee pleaded not guilty, and a two-day trial began on July 24, 2006. The jury found Brownlee guilty of both counts of armed robbery, but was not able to fix a penalty. After a sentencing hearing on August 14, 2006, the circuit court sentenced Brownlee to two concurrent fifteen-year sentences with seven years to serve and eight years suspended. Posttrial, Brownlee filed unsuccessful motions for JNOV and, alternatively, for a new trial. Aggrieved, Brownlee appeals and raises the following issues:
I. WHETHER THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR DIRECTED VERDICT AND MOTION FOR JNOV.
II. WHETHER APPELLANT'S COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.
Finding no error, we affirm.
ANALYSIS
I. WHETHER THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR DIRECTED VERDICT AND MOTION FOR JNOV, OR IN THE ALTERNATIVE, A MOTION FOR NEW TRIAL.
¶ 7. The standard of review we must employ upon our review of a denial of a motion for directed verdict or motion for JNOV has been aptly stated as such:
We must, with respect to each element of the offense, consider all of the evidence not just the evidence which supports the case for the prosecution in the light most favorable to the verdict. The credible evidence which is consistent with the guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.
Le v. State, 913 So. 2d 913 (¶ 163) (Miss. 2005) (quoting Wetz v. State, 503 So. 2d 803, 807 (Miss.1987)). Such is a high standard for any defendant to overcome, and one which Brownlee fails to do so here.
¶ 8. Brownlee was tried and convicted by a jury on two counts of violating Mississippi Code Annotated section 97-3-79 (Rev. 2006) which states:
Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his *35 person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.
¶ 9. The testimony and evidence before the jury, as laid out above, shows that two witnesses identified Brownlee out of court from a photo array and also made in-court identifications of Brownlee as the culprit who robbed Green at gunpoint of $4,400. As to this, Brownlee argues that the photo lineup was "impermissibly suggestive" because he was the only individual who had dread locks and cites Dennis v. State, 904 So. 2d 1134 (Miss.App.2004) in support. In Dennis, the defendant made a similar argument and indicated that the suggestive nature of the lineup stemmed from the facts that his picture was a driver's license picture while the others were pictures of inmates and that his image was larger than the others. Dennis, 904 So.2d at (¶ 9). The supreme court conceded the differences identified by Dennis, but found the issue "absolutely devoid of any merit." Id. at (¶ 13). In so doing, the court pointed out that each picture had the same format and the men pictured had the same complexion. Id. at (¶ 12).
¶ 10. An in-court identification by an eyewitness will not be thwarted by an impermissibly suggestive pre-trial identification unless under the totality of circumstances "the identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Houston v. State, 887 So. 2d 808 (¶ 17) (Miss.Ct.App.2004) (quoting Nicholson v. State, 523 So. 2d 68, 72 (Miss.1988)). Therefore, we must determine if Greens's and Leslie's photo identifications of Brownlee carried a likelihood of irreparable misidentification. In so doing, we must apply the factors expounded in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L.Ed.2d 401,(1972), listed as follows: (1) the opportunity of the witness to view the accused at the time of the crime, (2) the degree of attention exhibited by the witness, (3) the accuracy of the witness' prior description of the criminal, (4) the level of certainty exhibited by the witness at the confrontation, and (5) the length of time between the crime and the confrontation.
¶ 11. The photo lineup in the case sub judice was a grouping of six pictures of men. As in Dennis, they were of the same complexion, appeared to be of the same age group, and the size of the image of each man was roughly equivalent. While Brownlee is the only individual in the lineup with dread locks, other individuals could reasonably be said to have the same or similar hairstyle, especially given the less than stellar detail of the photos in the array. Additionally, Green was able to view his robber's face for a full four minutes. He testified that Brownlee exited a white Cadillac and, all of a sudden, was in his window with a gun. He identified Brownlee exactly as he did to the police. Namely, he described Brownlee as having braids and a chubby face. When asked if he would ever forget Brownlee's face, Green responded, "No, sir, never will." Green was shown the lineup approximately two weeks after the robbery and Bee testified that when Green identified Brownlee from the photo lineup his only hesitation stemmed not from uncertainty that Brownlee was the robber, but from his confusion of the numbers used in the photo indicating height. As such, Brownlee's claim that *36 Green's pre-trial identification was somehow tainted is without merit.
¶ 12. As to Leslie's out-of-court identification, we reach the same conclusion. Leslie testified that he observed Brownlee rob Green and gave a description to Bee that the robber was slim with "dreads", and he identified Brownlee in the photo lineup the day after Green. Based upon the record before us, we cannot say Leslie's identification of Brownlee from the photo lineup "was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." "Short of finding that under all the circumstances, there is a very substantial likelihood of irreparable misidentification from the identification of an accused made under suggestive and unnecessary police identification procedures, evidence of such an identification is for the jury to weigh." McNeal v. State, 405 So. 2d 90, 93 (Miss. 1981).
¶ 13. The jury heard the testimony of Green and Leslie. Specifically, they testified that Brownlee was the individual that robbed Green of $4,400. There was testimony that the robber had a partial gold tooth and neither Green nor Leslie recalled the Cadillac having tinted windows. However, the jury heard testimony of the cosmetic appeal of removable gold teeth and Brownlee's claim that his Cadillac had dark tinted windows.
The jury is charged with the responsibility of weighing and considering conflicting evidence, evaluating the credibility of witnesses, and determining whose testimony should be believed. The jury has the duty to determine the impeachment value of inconsistencies or contradictions as well as testimonial defects of perception, memory, and sincerity. It is not for this Court to pass upon the credibility of witnesses and where evidence justifies the verdict it must be accepted as having been found worthy of belief.
Houston v. State, 887 So. 2d 808, 816(¶ 38) (Miss.Ct.App.2004) (quoting Smith v. State, 821 So.2d 908(¶ 4) (Miss.Ct.App. 2002)). In the case sub judice, the jury was instructed in accordance with the Biggers factors enumerated above, and after hearing the testimony of all witnesses and Brownlee himself, found him guilty. Viewing all evidence in a light most favorable to the verdict, we cannot say that given such evidence "reasonable and fair-minded jurors could only find the accused not guilty." We find Brownlee's argument without merit.
¶ 14. Turning our focus to the trial court's denial of Brownlee's motion for new trial, we are concerned with the weight of the evidence rather than its sufficiency. When reviewing the weight of the evidence the following standard must be utilized:
A motion for a new trial is addressed to the sound discretion of the trial judge who may grant a new trial if he deems such is required in the interest of justice or [if] the verdict is contrary to law or the weight of the evidence. The trial judge should not order a new trial unless he is convinced that the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would be to sanction an unconscionable injustice.
In reviewing this claim, this Court must accept as true the evidence favorable to the State. This Court will reverse only when it is convinced that the trial judge has abused his discretion. Further, where there is conflicting testimony, the jury is the judge of the credibility of the witnesses.
(quoting Wetz, 503 So.2d at 812). In reviewing the evidence laid out above, we are convinced the trial judge did not abuse his *37 discretion in denying Brownlee's motion for new trial. As such, this issue is without merit.
II. WHETHER APPELLANT'S COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.
¶ 15. Brownlee next claims that his trial counsel provided ineffective assistance. Specifically, he claims his counsel was ineffective by failing to investigate, determine, and call alibi witnesses who could place Brownlee at Champ's Health and Fitness Club in West Helena, Arkansas at the time of the robbery. Further, Brownlee argues his counsel's failure to file a motion to suppress the photo lineup was constitutionally ineffective assistance of counsel. In support, Brownlee points to affidavits from four individuals that indicate Brownlee was at the fitness club between 3:30 p.m. and 5:30 p.m. the day of the robbery.
¶ 16. As noted by Brownlee and the State, an ineffective assistance of counsel claim raised on direct appeal should not be ruled upon by the reviewing court unless the court can say "the record affirmatively shows ineffectiveness of constitutional dimensions." Read v. State, 430 So. 2d 832, 841 (Miss.1983). The Read court explained the proper procedural rules a reviewing court must follow when presented with an ineffective assistance of counsel claim on direct appeal as follows:
(1) Any defendant convicted of a crime may raise the issue of ineffective assistance of counsel on direct appeal, even though the matter has not first been presented to the trial court. The Court should review the entire record on appeal. If, for example, from a review of the record . . . this Court can say that the defendant has been denied the effective assistance of counsel, the Court should also adjudge and reverse and remand for a new trial.
(2) Assuming that the Court is unable to conclude from the record on appeal that defendant's trial counsel was constitutionally ineffective, the Court should then proceed to decide the other issues in the case. Should the case be reversed on other grounds, the ineffectiveness issue, of course, would become moot. On the other hand, if the Court should otherwise affirm, it should do so without prejudice to the defendant's right to raise the ineffective assistance of counsel issue via appropriate post-conviction proceedings. If the Court otherwise affirms, it may nevertheless reach the merits of the ineffectiveness issue where (a) as in paragraph (1) above, the record affirmatively shows ineffectiveness of constitutional dimensions, or (b) the parties stipulate that the record is adequate and the Court determines that findings of fact by a trial judge [who was] able to consider the demeanor of witnesses, etc. are not needed.
(3) If, after affirmance as in paragraph (2) above, the defendant wishes to do so, he may then file an appropriate post-conviction proceeding raising the ineffective assistance of counsel issue. Assuming that his application states a claim, prima facie, he will then be entitled to an evidentiary hearing on the merits of that issue in the Circuit Court of the county wherein he was originally convicted. Once the issue has been formally adjudicated by the Circuit Court, of course, the defendant will have the right to appeal to this Court as in other cases.
Read, 430 So.2d at 841-42 (internal citations omitted).
¶ 17. As we are affirming the lower court's rulings brought into question by Brownlee, we may only reach the merits of his ineffective assistance of counsel claim if the parties stipulate the record is adequate, or we are satisfied the record affirmatively shows ineffectiveness of constitutional *38 dimensions. Neither condition is satisfied. The parties have made no such stipulation and we cannot say that the record before us is sufficient, without more, to establish ineffective assistance of counsel. As such, Brownlee's claim of ineffective assistance of counsel will not be addressed and it is dismissed without prejudice so as to preserve his right to renew such a claim on post-conviction collateral relief if he so chooses.
¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF COUNT I, ARMED ROBBERY AND SENTENCE OF FIFTEEN YEARS WITH EIGHT YEARS SUSPENDED, AND COUNT II, ARMED ROBBERY AND SENTENCE OF FIFTEEN YEARS WITH EIGHT YEARS SUSPENDED, WITH SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590399/ | 972 So. 2d 582 (2008)
MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE
v.
Rickey W. THOMPSON.
No. 2007-JP-01484-SCT.
Supreme Court of Mississippi.
January 17, 2008.
*583 Darlene D. Ballard, Ayanna Batiste, attorneys for appellant.
William C. Murphree, Tupelo, attorney for appellee.
EN BANC.
CARLSON, Justice, for the Court.
¶ 1. The Mississippi Commission on Judicial Performance (Commission) filed a Formal Complaint charging Lee County Fourth District Justice Court Judge Rickey W. Thompson with willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute, thus causing *584 such alleged conduct to be actionable pursuant to the provisions of Article 6, Section 177A of the Mississippi Constitution of 1890. In due course, the Commission and Judge Thompson submitted to us a joint motion for approval of a recommendation that Judge Thompson be publicly reprimanded and assessed with costs. Having conducted our mandated review of the Commission's recommendation consistent with Article 6, Section 177A, Mississippi Commission on Judicial Performance Rule 10, Mississippi Rules of Appellate Procedure 16(d), and upon consideration of our judicial canons and our case law, we adopt the joint recommendation that Judge Thompson be publicly reprimanded and assessed with costs in the amount of $100.
FACTS AND PROCEEDINGS BEFORE THE COMMISSION
¶ 2. After the Commission's filing of the formal complaint against Judge Thompson and the filing of Judge Thompson's answer to the formal complaint, the Commission entered its scheduling order; however, in due course, without the necessity of a hearing, the Commission's counsel and Judge Thompson, along with his counsel, filed with the Commission an Agreed Statement of Facts and Proposed Recommendation, which was accepted by the full Commission.
¶ 3. A reading of the Agreed Statement of Facts and Proposed Recommendation reveals certain agreed facts as follows: On May 22, 2006, a physical altercation occurred between two siblings, Deborah Ann Moody and Sally Thompson Gill, while they were attending their grandmother's funeral at Union Baptist Church in Shannon. That evening, Moody appeared at the Lee County Sheriff's Department to file charges against Gill. An officer at the Sheriff's Department took a statement from Moody and then informed her that she should go to the Justice Court Building the next day to file the necessary papers to have a warrant issued for her sister's arrest. On May 23, 2006, Moody went to the Justice Court Clerk's office, as previously directed, and while there she happened to see Judge Thompson, who informed her that she should take her grievance to another judge, whereupon Moody appeared before Lee County Justice Court Judge John H. Sheffield. We now quote from this agreed statement of facts:
While Moody and Judge Sheffield were in the process of discussing the issuance of a warrant, [Judge Thompson] entered Judge Sheffield's office. [Judge Thompson] expressed a desire to talk to Judge Sheffield about the situation before he signed the warrant. Judge Sheffield expressed that he would be issuing the warrant. [Judge Thompson] became angry and left Judge Sheffield's office. Thereafter, Judge Sheffield authorized the warrant and explained to Moody that it would be issued on a Recognizance Appearance Bond and advised Moody to take the warrant to the Justice Court Clerk's office.
As Moody entered the hallway she saw [Judge Thompson] standing outside of his office. [Judge Thompson] then asked Ms. Shea Willis, Lee County Justice Court Deputy Clerk, not to send the warrant. Ms. Willis agreed. Moody then asked Ms. Willis if the warrant would be sent to the Lee County Sheriff Department, and Ms. Willis responded no.
Moody then walked back to Judge Sheffield's office to tell him what happened. Judge Sheffield gave Moody the telephone number for the Mississippi Commission on Judicial Performance. Afterwards, Moody went back to the Justice Court Clerk's office. A different deputy *585 clerk advised Moody that she would send the warrant in that day. Moody obtained a copy of the warrant and departed.
¶ 4. A constable received the warrant and telephoned Gill concerning the outstanding arrest warrant. Gill then voluntarily surrendered herself at the Lee County Justice Court Office, whereupon she was processed and released on her own recognizance. In due course, a justice court date was assigned for Gill based on the charges brought by Moody. In the Agreed Statement of Facts and Proposed Recommendation, Judge Thompson acknowledged that he improperly allowed "his family, social or other relationships to influence his judicial conduct and that he, as well as his staff, must be courteous, cooperative with other judges, and observe standards of fidelity and diligence when performing [his] official duties." Judge Thompson also acknowledged that failure to follow these judicial tenets constitutes misconduct. Additionally, Judge Thompson acknowledged that his judicial misconduct caused him to be in violation of Canons 1, 2B and 3B(2) of the Mississippi Code of Judicial Conduct. Thus Judge Thompson's conduct is actionable pursuant to the provisions of Article 6, Section 177A of the Mississippi Constitution inasmuch as Judge Thompson's conduct unquestionably constitutes willful misconduct in office and conduct prejudicial to the administration of justice, bringing the judicial office into disrepute.
¶ 5. The Commission entered its Findings of Fact and Recommendation, adopting the Agreed Statement of Facts and Proposed Recommendation. The Minutes Excerpt filed by the Commission reveals that on motion duly made and seconded, the Commission unanimously recommended to this Court that Judge Thompson be publicly reprimanded and assessed with costs in the amount of $100.00.
DISCUSSION
¶ 6. Consistent with our practice in judicial misconduct cases, we first consider the judge's conduct, and if found to be actionable, we then consider the appropriate sanction.
I. WHETHER JUDGE THOMPSON'S CONDUCT CONSTITUTED WILLFUL MISCONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE WHICH BRINGS THE JUDICIAL OFFICE INTO DISREPUTE.
¶ 7. Our cases are legion on the point that this Court conducts a de novo review of judicial misconduct proceedings, while affording deference to the Commission's recommendations when the Commission's findings are based on clear and convincing evidence. Comm'n on Judicial Performance v. Cole, 932 So. 2d 9, 10 (Miss. 2006) (citing Miss. Comm'n on Judicial Performance v. Hartzog, 904 So. 2d 981, 984 (Miss.2004)). See also Miss. Comm'n on Judicial Performance v. Gibson, 883 So. 2d 1155, 1156 (Miss.2004). "While we do give great deference to the Commission's findings, we are also charged to render an independent judgment." Id. (citing Miss. Comm'n on Judicial Performance v. Peyton, 645 So. 2d 954, 956 (Miss.1994)). In essence, this Court serves as the "the trier of fact" since we "have the sole power to impose sanctions in judicial misconduct cases." Id. at 1156-57 (citing Peyton, 645 So.2d at 956).
¶ 8. With our appropriate standard of review and mandated duty in mind, we return to today's case. The Commission charges Judge Thompson with violating Canons 1, 2B and 3B(2) of our Code of Judicial Conduct. We set out here the *586 judicial canons which Judge Thompson admits he violated:
CANON 1
A Judge Shall Uphold the Integrity and Independence of the Judiciary[.]
An independent and honorable judiciary is indispensable to justice in our society. 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. The provisions of this Code should be construed and applied to further that objective.
CANON 2
A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities[.]
. . . .
B. Judges shall not allow their family, social, or other relationships to influence the judges' judicial conduct or judgment. Judges shall not lend the prestige of their offices to advance the private interests of the judges or others; nor shall judges convey or permit others to convey the impression that they are in a special position to influence the judges. Judges shall not testify voluntarily as character witnesses.
CANON 3
A Judge Should Perform the Duties of His Office Impartially and Diligently[.]
. . . .
B. Adjudicative Responsibilities.
. . . .
(2) A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.
¶ 9. We note that while Judge Thompson readily admits the violation of these judicial canons, the facts of this case likewise support a finding by us that Judge Thompson violated these canons, and is thus guilty of willful misconduct while in office.
¶ 10. This Court has for many years been consistent in its definition of willful judicial misconduct. We recently stated once again:
Willful misconduct in office is the improper or wrongful use of power of his office by a judge acting intentionally or with gross unconcern for his conduct and generally in bad faith. It involves more than an error of judgment or a mere lack of diligence. Necessarily, the term would encompass conduct involving moral turpitude, dishonesty, or corruption, and also any knowing misuse of the office, whatever the motive. However, these elements are not necessary to a finding of bad faith. A specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of his authority constitutes bad faith. . . .
Willful misconduct in office of necessity is conduct prejudicial to the administration of justice that brings the judicial office into disrepute. However, a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute.
Miss. Comm'n on Judicial Performance v. Cowart, 936 So. 2d 343, 346-47 (Miss.2006) (citing Miss. Comm'n on Judicial Performance v. Whitten, 687 So. 2d 744, 747 (Miss.1997)). See also In re Quick, 553 So. 2d 522, 524 (Miss.1989). In Cowart, we further stated:
*587 While the conduct of [the judge], in our opinion, amounted to willful misconduct in office and conduct prejudicial to the administration of justice, bringing the judicial office into disrepute, we recognize as quoted in In re Anderson, supra,[1] that a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute. The result is the same regardless of whether bad faith or negligence and ignorance are involved and warrants sanctions.
936 So.2d at 347 (quoting In Re Anderson, 451 So. 2d 232, 234 (Miss.1984)).
¶ 11. In today's case, Judge Thompson, in the presence of the affiant, Moody, unquestionably interjected himself into a case (from which he had already in essence "recused" himself) by informing Judge Sheffield that he (Judge Thompson) wanted to talk to Judge Sheffield before he (Judge Sheffield) signed the arrest warrant on Moody's sister, Gill. When Judge Sheffield refused, Judge Thompson angrily left Judge Sheffield's office. After Judge Sheffield executed the arrest warrant for Gill, Moody left Judge Sheffield's office to "walk" the warrant down to the Justice Court Clerk's office to be processed, whereupon Judge Thompson told one of the justice court deputy clerks not to issue the warrant, and she complied with Judge Thompson's request. A different justice court deputy clerk later issued the duly executed arrest warrant, and Gill was arrested and released on her own recognizance. From these admitted facts, we find that Judge Thompson indeed violated Canons 1, 2B and 3B(2) of the Code of Judicial Conduct, and that these actions constitute willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute; therefore, Judge Thompson's judicial misconduct is actionable pursuant to the provisions of Article 6, Section 177A of the Mississippi Constitution. We thus move to the second issue.
II. WHETHER PUBLIC REPRIMAND AND ASSESSMENT OF COSTS ARE APPROPRIATE SANCTIONS.
¶ 12. According to Article 6, Section 177A, upon a finding similar to the one we have made today (willful judicial misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute), this Court "may remove from office, suspend, fine or publicly censure or reprimand" the guilty judge. In today's case, there is before us for consideration, inter alia, the Memorandum Brief in Support of Joint Motion for Approval of Recommendations Filed by the Mississippi Commission on Judicial Performance, filed by both counsel for the Commission and counsel for Judge Thompson. As duly noted by the Commission and Judge Thompson, this Court considers several factors in determining the appropriate sanction in any case involving judicial misconduct. In Mississippi Commission on Judicial Performance v. Gibson, 883 So. 2d 1155, 1158 (Miss.2004), we modified the Baker factors. In re Baker, 535 So. 2d 47, 53-54 (Miss.1988).
¶ 13. The six Gibson factors we now consider to impose sanctions in judicial misconduct cases are: "(1) The length and character of the judge's public service; (2) Whether there is any prior case law on *588 point; (3) The magnitude of the offense and the harm suffered; (4) Whether the misconduct is an isolated incident or evidences a pattern of conduct; (5) Whether moral turpitude was involved; and (6) The presence or absence of mitigating or aggravating circumstances." Gibson, 883 So.2d at 1158. In a footnote, we stated that "[m]oral turpitude includes, but is not limited to, actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute." Id. n. 2.
(1) The length and character of the judge's public service.
¶ 14. Judge Thompson was first elected as a justice court judge in Lee County in 2003, and in August, 2007, he was reelected to another four-year term.
(2) Whether there is any prior case law on point.
¶ 15. There is considerable judicial precedent relevant to the issues presented, as cited both supra and infra.
(3) The magnitude of the offense and the harm suffered.
¶ 16. Although the record is unclear, Judge Thompson obviously knew Deborah Ann Moody, and upon seeing Moody at the Justice Court Clerk's office, Judge Thompson, for whatever reason, immediately decided not to get involved in the case, choosing instead to request that Moody take her case to another judge. Notwithstanding this decision not to be involved in the case, Judge Thompson, in Moody's presence, insisted that Judge Sheffield talk with him before signing the arrest warrant on Sally Thompson Gill.[2] When Judge Sheffield refused, Judge Thompson became angry, left Judge Sheffield's office and instructed a justice court deputy clerk not to issue the arrest warrant. We do not know how many persons may have witnessed Judge Thompson's conduct in Judge Sheffield's office or later in the hallway of the Justice Court Building, nor do we know how many persons may have since learned of Judge Thompson's conduct, but we can safely state, as asserted by the Commission, and admitted by Judge Thompson, that Judge Thompson's conduct created "the appearance that he may be partial to certain interests. The litigants that appear in Justice Court or that come to Justice Court for assistance deserve a fair and independent judiciary and in this case, the litigant did not receive that and, therefore, suffered harm. The public's perception of the judiciary as a whole was impugned."
(4) Whether the misconduct is an isolated incident or evidences a pattern of conduct.
¶ 17. Judge Thompson has one prior disciplinary action against him. As asserted by the Commission, and admitted by him, Judge Thompson signed an Agreed Statement of Facts and Proposed Recommendation in September 2005, and received a private admonishment for participating in ex parte communications with parties concerning a pending matter. The 2005 case and today's case are unrelated.
(5) Whether moral turpitude was involved.
¶ 18. This Court has found the existence of moral turpitude in recent cases. *589 Miss. Comm'n on Judicial Performance v. Gordon, 955 So. 2d 300, 305-306 (Miss. 2007) (fourteen instances of "ticket-fixing"); Comm'n on Judicial Performance v. Sanford, 941 So. 2d 209, 216-18 (Miss. 2006) (at request of judge, sheriff informed arresting officer in DUI case not to appear at a court hearing so that judge could dismiss case for failure to prosecute, and the case was dismissed); Miss. Comm'n on Judicial Performance v. Britton, 936 So. 2d 898, 906 (Miss.2006) (six complaints ranging from ex parte communications with parties to setting aside judgment entered by another judge); Comm'n on Judicial Performance v. Cowart, 936 So. 2d 343, 350 (Miss.2006) (three instances involving ex parte communications, resulting in judge remanding traffic tickets to files).
¶ 19. Contrary to the egregious actions of the judges in Gordon, Sanford, Britton and Cowart, we agree with the Commission in today's case that Judge Thompson's actions, while highly improper, do not rise to the level of moral turpitude. While Judge Thompson's actions in urging Judge Sheffield to talk with him about the arrest warrant were clearly inappropriate, we have in the record only the statement of fact that Judge Thompson "expressed a desire to talk with Judge Sheffield about the situation before he signed the warrant." (Emphasis added). Judge Thompson evidently did not attempt to persuade Judge Sheffield not to sign the arrest warrant. In any event, Judge Sheffield, notwithstanding Judge Thompson's actions, forthwith signed the arrest warrant on Gill and gave the executed warrant to Moody to deliver to the justice court clerk's office for processing. Likewise, although there was an obvious momentary delay in issuing the arrest warrant due to Judge Thompson's instructing a justice court deputy clerk not to issue the warrant, another justice court deputy clerk issued the warrant soon thereafter, and Gill subsequently was taken into custody on the same day that the arrest warrant was executed by Judge Sheffield. We thus conclude that the totality of Judge Thompson's actions does not reveal the existence of moral turpitude.
(6) The presence or absence of mitigating or aggravating circumstances.
¶ 20. There is no doubt as to the existence of aggravating circumstances in that Judge Thompson previously has been disciplined via private admonishment for engaging in ex parte communications with parties concerning a pending matter. Likewise, Judge Thompson's conduct, as asserted by the Commission, and admitted by Judge Thompson, reflects "adversely on the propriety and impartiality of the judiciary." The citizens of Lee County unquestionably have a right to expect and demand that their elected justice court judges will refrain from such judicial misconduct. On the other hand, this Court also unhesitatingly acknowledges that Judge Thompson stepped up and accepted responsibility for his conduct and is willing to be held accountable for his actions. Such action on the part of Judge Thompson is commendable and is considered by this Court to be mitigating in nature. We may thus consider this expression of contrition, along with the totality of the record and the application of the Gibson factors consistent with our case law, in determining the appropriate sanction to impose upon Judge Thompson.
¶ 21. The Commission and Judge Thompson suggest to us that the recommendation of a public reprimand is consistent with similar cases such as Commission on Judicial Performance v. Cole, 932 So. 2d 9 (Miss.2006); and Mississippi Commission on Judicial Performance v. Brown, 761 So. 2d 182 (Miss.2000). We *590 agree. In Cole, the judge reinstated his grandson's driver's license, which had been revoked pending disposition of various traffic charges, including a DUI charge. The judge's grandson later entered a nolo contendere plea to all traffic charges before a justice court judge specially appointed to hear the case. Since the judge's grandson was on probation for a felony offense, the previously imposed probation was revoked, and Judge Cole approached the sheriff in an effort to have his grandson serve his sentence in the county jail, as opposed to a state facility. In deciding that the judge should be publicly reprimanded, we stated:
We find sanctions like the ones suggested by the Commission to be appropriate in cases with factually similar circumstances. In Mississippi Commission on Judicial Performance v. Brown, 761 So. 2d 182 (Miss.2000), we held a public reprimand and a fine of $500 plus court costs were appropriate sanctions for a Winston County Justice Court judge's ex parte contacts with an arresting officer, an officer supervisor, and another judge concerning the DUI case of the justice court judge's son.
Cole, 932 So.2d at 11.
¶ 22. In sum, having considered the record before us and having applied the Gibson factors consistent with our case law, we agree that the joint recommendation by the Commission and Judge Thompson should be adopted in toto.
CONCLUSION
¶ 23. Judge Thompson's actions constituted willful misconduct in office and conduct prejudicial to the administration of justice which brought the judicial office into disrepute. We thus order Judge Thompson to be publicly reprimanded and assessed costs in the amount of $100. This reprimand shall be read in open court on the first day of the next term of the Circuit Court of Lee County in which a jury venire is present, with Judge Thompson present and standing before the presiding judge, who shall read the reprimand in open court.
¶ 24. LEE COUNTY JUSTICE COURT JUDGE RICKEY W. THOMPSON SHALL BE PUBLICLY REPRIMANDED IN OPEN COURT BY THE PRESIDING JUDGE OF THE LEE COUNTY CIRCUIT COURT ON THE FIRST DAY OF THE NEXT TERM OF THAT COURT IN WHICH A JURY VENIRE IS PRESENT AFTER THIS DECISION BECOMES FINAL; AND IS ASSESSED COSTS IN THE AMOUNT OF $100.00.
SMITH, C.J., WALLER, P.J., EASLEY, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. DIAZ, P.J., NOT PARTICIPATING.
NOTES
[1] This case is different from the 1984 case, and is cited as In Re Lloyd W. Anderson, 412 So. 2d 743, 745 (Miss.1982).
[2] Though of no moment in today's case, the record is curiously silent as to whether Judge Thompson, Moody and Gill are related by blood or marriage, notwithstanding the citation to Canon 2B as being one of the judicial canons violated by Judge Thompson. Canon 2B states in pertinent part: "Judges shall not allow their family, social, or other relationships to influence the judges' judicial conduct or judgment." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590430/ | 972 So. 2d 656 (2007)
C.A.M.F., Appellant
v.
J.B.M., Appellee.
No. 2005-CA-02227-COA.
Court of Appeals of Mississippi.
May 1, 2007.
Rehearing Denied September 25, 2007.
*658 William Neal Small, Ronald Louis Taylor, attorneys for appellant.
Steven Glen Roberts, attorney for appellee.
Before LEE, P.J., BARNES and ISHEE, JJ.
BARNES, J., for the Court.
¶ 1. This is an appeal brought by C.A.M.F. (the Mother) from the order of the Chancery Court of DeSoto County modifying the custody of her then ten-year-old son (the Son). By order, the physical and legal custody was changed to J.B.M. (the Father).
¶ 2. The Mother on appeal contends that the chancellor misapplied the controlling legal precedent in custody modification, failed to address the applicable law relating to siblings and custody, committed manifest error in several evidentiary matters by the wrongful inclusion or exclusion of evidence, and adopted findings and conclusions not supported by the record.
¶ 3. We find no reversible error and affirm the chancellor's judgment.
*659 FACTS
¶ 4. The Mother and Father were divorced on April 14, 1999, in Shelby County, Tennessee. Their only child, a son, was born on March 5, 1995. The Mother remarried on May 28, 1999, and subsequently had another son with her new husband.
¶ 5. On September 26, 2003, the Father filed a petition in DeSoto County Chancery Court to enroll and modify the final divorce decree from Shelby County, Tennessee, which granted the Mother a divorce on the ground of cruel and inhuman treatment and awarded her custody of the minor child. The Shelby County Chancery Court declined jurisdiction, and the case continued in DeSoto County, which is now the residence of both parties.
¶ 6. The Father testified that he instituted the proceeding to modify custody after he found out some matters of concern about the Mother's new husband (M.A.F.)("Mike"[1]). First, the Father learned of allegations that Mike had taken nude photographs of the Son, not showing the child's face, when he was approximately six years old. According to the Father's testimony, a sheriff's department detective had asked the Father about the photographs. There was also testimony that the Son had been upset by the photographs.
¶ 7. Next, the Father learned that in Mike's prior divorce proceeding in Rankin County there was testimony that Mike, then using his middle name, was found to have repeatedly exposed himself to neighbors, relatives, and babysitters. The Father ultimately obtained certified copies of the divorce proceedings and provided them to his attorney.
¶ 8. The Father's mother (the Paternal Grandmother) testified that four years earlier she had gone to the Mother and her new husband's house to pick up the Son for the day and when she drove up Mike was standing at the door completely naked and in full view. She testified that Mike knew that she was coming. She also testified that on another occasion she brought the Son home from an outing and saw Mike standing in the pool without any clothes on, while the Mother and the other child were nearby fully clothed.
¶ 9. The Paternal Grandmother also testified that, on an occasion when she came to the custodial residence to pick the Son up for a wedding, the Son emerged from the home visibly distraught and told her that Mike had been choking the Mother and would not stop. The grandmother indicated that the Son was crying and seemed frightened when he made the statement. The Mother later told the Paternal Grandmother that she and Mike had been playing around and that the Son had the wrong impression of what had happened.
¶ 10. R.K.F. ("Rita") testified that she was married to Mike for two months in 1995. She testified that he had a habit of walking around the house in the nude and standing nude in front of an open window. She stated that nudity was an "issue" with her and with his daughter from a relationship prior to his marriage to Rita.
¶ 11. S.M.D. ("Susan") testified that she and Mike had a daughter in 1992 and that he was using his middle name then. Susan testified that when her daughter was two months old, she had an argument with Mike during which he shoved and pushed her, which lead to her leaving him. She also testified that he exposed himself to several people during their relationship, including two babysitters. Susan testified that she had been in litigation in Rankin County concerning Mike's inappropriate *660 behavior around their daughter. Susan testified that Mike had not seen his daughter for six years and had never sent any child support to her.
¶ 12. Melissa Gardner, the guardian ad litem for Mike and Susan's daughter, testified that there was never a final disposition of the custody in that case because Mike disappeared, failing to respond to any telephone calls or letters about the case.
¶ 13. Mike testified and acknowledged that he used a different name in Rankin County than he did in DeSoto County. He also admitted that he had not paid child support for his daughter. He admitted that on different occasions that babysitters had seen him naked. He also admitted to having been accused of inappropriate behavior toward female employees at River Oaks Hospital, where he had been employed. He denied taking the nude photographs of the Son. The Mother testified that she took the photographs.
¶ 14. In their arguments to the Court, both parties have overstated their relative positions, and the Court has chosen not to discuss the many inaccurate statements made by the parties in their briefs to the Court.
STANDARD OF REVIEW
¶ 15. The standard of review in child custody cases is quite limited, and in order to reverse a chancellor he must be manifestly wrong, clearly erroneous or have applied an erroneous legal standard. Hensarling v. Hensarling, 824 So. 2d 583, 587(¶ 7) (Miss.2002); Williams v. Williams, 656 So. 2d 325, 330 (Miss.1995); Chamblee v. Chamblee, 637 So. 2d 850, 860 (Miss.1994). The Court reviews de novo whether the trial court applied the proper legal standard in deciding a custody modification. Morgan v. West, 812 So. 2d 987, 990(¶ 8) (Miss.2002).
DISCUSSION
I. WHETHER THE CHANCELLOR MISAPPLIED THE CONTROLLING LEGAL PRECEDENT IN CUSTODY MODIFICATION
¶ 16. The appellant argues that the chancellor committed manifest error when he misapplied Mabus v. Mabus, 847 So. 2d 815 (Miss.2003), Riley v. Doerner, 677 So. 2d 740 (Miss.1996), and Albright v. Albright, 437 So. 2d 1003 (Miss.1983). It is the appellant's specific contention that the chancellor did not follow the procedure in Mabus, did not find any "adverse effect" on the child as a result of the alleged "change in circumstance," did not find either a dangerous or illegal environment in the custodial home, and proceeded to consider the factors in Albright and change custody based on speculation as to future harm.
¶ 17. In this case the chancellor did in fact discuss and apply the cases which the Mother contends were misapplied. In Mabus, the Court stated that the noncustodial parent must prove "(1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child's welfare; and (3) that the child's best interests mandate a change in custody." Mabus, 847 So.2d at 818(¶ 8) (quoting Bredemeier v. Jackson, 689 So. 2d 770, 775 (Miss.1997)).
¶ 18. In reaching his conclusion in the present case, the chancellor also quoted extensively from Riley, 677 So.2d at 744-45, including the principle that the polestar consideration in any child custody matter is the best interest and welfare of the child, also found in Albright, 437 So.2d at 1005, and Mabus, 847 So.2d at 818(¶ 8) (citing Albright).
*661 ¶ 19. Based on this case law, the chancellor in the present case considered all of the factors listed in Mabus and found that, as to the first prong of Mabus, the nude photographs of the Son and other questionable conduct by Mike constituted "a substantial and material change in circumstances." As to the second Mabus prong, the chancellor found that while the "substantial and material change in circumstances may not have at this time adversely affected the child, . . . this Court is not obligated to wait until such adverse change has occurred."[2] Under the third prong of Mabus, the chancellor thoroughly considered and discussed the Albright factors in finding that the best interests of the Son would be served by placing physical custody with the Father. We cannot find that the chancellor's findings of fact and conclusions of law were clearly erroneous nor do we find that an erroneous legal standard was applied. Accordingly, the Court finds that the Mother's issue is without merit.
II. WHETHER THE CHANCELLOR FAILED TO ADDRESS THE APPLICABLE LAW RELATING TO SIBLINGS AND CUSTODY
¶ 20. The Mother argues that the chancellor abused his discretion and/or committed manifest error when he failed to acknowledge the legal presumption that siblings should be separated only in extraordinary circumstances and failed to acknowledge the guardian's testimony about the close emotional relationship between the Son and his half-brother.
¶ 21. None of the cases cited by the Mother holds that siblings cannot be separated. These cases hold that this is but one factor, usually in the context of Albright, to be considered by the court in matters of custody. See Sellers v. Sellers, 638 So. 2d 481, 484 (Miss.1994); Steverson v. Steverson, 846 So. 2d 304, 306(¶ 10) (Miss.Ct.App.2003); McWhirter v. McWhirter, 811 So. 2d 397, 399(¶ 7) (Miss. Ct.App.2001); Moore v. Moore, 757 So. 2d 1043, 1050(¶ 32) (Miss.Ct.App.2000).
¶ 22. In Sparkman v. Sparkman, 441 So. 2d 1361, 1362 (Miss.1983) (quoted in Sellers, 638 So.2d at 484), the court noted that it "has never adopted any per se rule to the effect that children should not be separated, in the absence of a showing of absolute necessity for the child's welfare. . . ." There was no such showing in this case.
¶ 23. There was no requirement that the chancellor specifically address the question of siblings and custody. This is not a separate Albright factor but a question which the chancellor may consider along with the best interest of the child. See Albright, 437 So.2d at 1005. We find no error on the part of the chancellor.
III. WHETHER THE CHANCELLOR COMMITTED ERROR IN THE ADMISSION AND EXCLUSION OF EVIDENCE
¶ 24. Since several of the Mother's issues concern whether the chancellor committed error in the admission of evidence, particularly in the form of testimony, these issues will be discussed together.
*662 ¶ 25. The rule is that the admissibility of evidence rests within the chancellor's discretion, and the Court will not reverse a chancellor's ruling unless his judicial discretion is abused. Hall v. State, 611 So. 2d 915, 918 (Miss.1992).
ALLOWING TESTIMONY FROM THE STEP-GRANDMOTHER
¶ 26. The Mother argues that the chancellor committed manifest error when he allowed testimony from her step-mother[3] concerning photographs taken of the Son and his half brother. The Maternal Step-Grandmother testified that the Son was upset by the photographs.
¶ 27. The two photographs of the Son and his younger half brother were allowed to be introduced into evidence and showed the two children's naked torsos at bath time. The photos were admitted into evidence during the testimony of the Father. The Step-Grandmother later testified that the Son had shown her and her husband (the maternal grandfather) the photographs and identified Mike as the person who took the pictures. She testified further that the Son appeared to be upset by the photographs.
¶ 28. The Father's trial counsel argued that the Step-Grandmother's testimony recalling the Son's statement identifying Mike as the photographer was properly admitted under M.R.E. 803(25), which provides:
(25) Tender Years Exception. A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.
The chancellor agreed that the photographing of the Son's genitals was a form of sexual abuse for purpose of the rule. Here, the Son did not testify nor was there a finding of unavailability which appears of record; however, the testimony of the Step-Grandmother was allowed into evidence.
¶ 29. The Mother argues on appeal that the requirements for application of the tender years exception were not met in this case because: (1) the mere taking of nude photos of a young child at bath time does not constitute an "act of sexual contact performed with or on" the Son, (2) the chancellor failed to find that the "time, content, and circumstances of the statement provide substantial indicia or reliability," and (3) the Son did not testify at trial and the chancellor failed to find that the Son was unavailable to testify. See M.R.E. 803(25). We agree that the chancellor erred by citing Rule 803(25) as the basis for allowing the Step-Grandmother's testimony regarding the Son's identification of Mike as the person who took the photographs at issue. We need not decide whether the taking of the photographs amounted to "sexual contact" within the meaning of Rule 803(25), as the chancellor failed to find that the Son was unavailable pursuant to subsection (b)(2) of the rule. *663 See J.L.W.W. v. Clarke County Dep't of Human Servs., 759 So. 2d 1183 (Miss.2000) (affirming the decision of this Court to remand for new trial a case in which the tender years exception was applied without an adequate finding of unavailability). Accordingly, the chancellor abused his discretion by allowing the Step-Grandmother to testify regarding the Son's statement identifying Mike as the photographer.
¶ 30. The Father in his appellate brief recognizes that the specific rule used by the court in allowing the testimony into evidence regarding the photographs poses some problem. He proposes as an alternative Rule 803(24) which is the catch-all provision of the hearsay rule and allows for admission of a hearsay statement not specifically covered by the other exceptions. He also cites the well established and familiar rule that where the trial court reaches the proper result it does not matter upon what basis that result was reached, i.e., the court reached the right conclusion for the wrong reason. See Towner v. State, 837 So. 2d 221 (Miss.Ct. App.2003). We are not persuaded by this argument.
¶ 31. First, the comment to Rule 803(24) indicates that the catch-all provision should not be utilized with "unfettered discretion which could ultimately devour the hearsay rule." See also Mitchell v. State, 539 So. 2d 1366, 1370 (Miss.1989) (stating that "use of the `catchall' should be carefully considered and applied rarely, so as not to devour the hearsay rule"). Second, the applicability of this exception requires the use of discretion with respect to facts which are not apparent from the record. For example, we cannot determine from the record whether the Son's statement "is more probative on the point for which it [was] offered than any other evidence which [the Father could] procure through reasonable efforts," as is required by the Rule. Nor is it apparent whether the Father gave advance notice to the Mother that he intended to introduce the Son's statement via the Step-Grandmother's testimony, which is another prerequisite for application of the catch-all exception. However, despite the fact that the chancellor erred in admitting testimony regarding the Son's statement of identification pursuant to the tender years exception, and notwithstanding the fact that we cannot conclude from the record whether the catch-all provision would provide an alternative basis of admission, we find that any error by the chancellor was harmless.
¶ 32. The only portion of the Step-Grandmother's testimony which should have been excluded as hearsay was the testimony recalling the Son's identification of Mike as the person who took the nude photographs. During the line of questioning in which this testimony was elicited, the Step-Grandmother also testified that the Son voluntarily brought the pictures to her, and further, that "[h]e acted like he was upset about them."[4] Even without the Son's statement identifying Mike as the photographer, the photographs themselves, as well as the Step-Grandmother's impression that the Son was "upset about them," clearly support the chancellor's conclusion that these photographs were inappropriate and indicative of conditions in the custodial home which were adverse to the Son's best interests. In light of this conclusion, and considering other evidence of Mike's inappropriate conduct contained in the record, we find that the admission of testimony regarding the Son's statement *664 of identification, although error, was harmless error.
ALLOWING TESTIMONY FROM THE GRANDMOTHER
¶ 33. The Mother also argues that the chancellor erred when he relied upon the uncorroborated testimony of her ex-mother-in-law, the Paternal Grandmother, as to statements made by the Son at least five years earlier. The testimony at issue in this assignment of error was elicited during the Paternal Grandmother's recollection of events that transpired on a day in which she went to pick the Son up for a wedding. The challenged testimony occurred during the following exchange:
Q. [BY FATHER'S ATTORNEY]: On this particular occasion, what was [the Son's] demeanor when he came out to the car?
A. He looked frightened, and he said, [Paternal Grandmother], [Mike] was choking Mama and he wouldn't stop.
. . . .
Q. [] I'm sorry, continue.
A. He got into the car and immediately said, [Mike] was choking Mama and he wouldn't stop.
. . . .
Q. What was the child's demeanor while he was talking?
A. He was very frightened. He was crying. And I said, what did you do? He said, I asked I told him to stop choking my mama and he wouldn't stop. I said, well, what happened? He said, well, first Mama [threw] a watch at [Mike], and then [Mike] pushed Mama on his bed and started choking her. He was choking her. And he said, then I got a little bit mad, and then Mama was very mad on the couch. That's I guess anyway, that's what he said.
¶ 34. The Mother contends that the court should not have adopted the "excited utterance" exception under Mississippi Rule of Evidence 803(2) in allowing admission of the preceding testimony. Rule 803(2) excepts from the hearsay rule "statement[s] relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." The rationale for the excited utterance exception is best explained by the comment to Rule 803(2):
The underlying theory of the excited utterance exception is that circumstances may create such an excited condition that the capacity for reflection is temporarily impeded and that statements uttered in that condition are thus free of conscious fabrication. . . . [T]he essential ingredient is spontaneity. With respect to time element, the issue is the duration of the excited state. This, depending on the exact circumstances of a case, can vary greatly. The declarant need not be a participant but only an observer of the event which triggered the excitement. An excited utterance need only "relate" to the startling event, and, therefore, the scope of the subject matter of the statement may be fairly broad.
¶ 35. The Paternal Grandmother testified that the Son was "very frightened" and that he was crying when he emerged from his home and told her what had occurred between his mother and Mike. From our review of the challenged testimony, it appears that the Son's statement was both spontaneous and made while he was still under the stress and excitement caused by the event. At the very least, we cannot say that the trial court abused its discretion by allowing the Paternal Grandmother's testimony repeating the Son's statements regarding the choking incident. "The competency of excited *665 utterances is a matter largely discretionary with our trial courts." Stokes v. State, 797 So. 2d 381, 386(¶ 14) (Miss.Ct. App.2001) (quoting Davis v. State, 611 So. 2d 906, 914 (Miss.1992)). We find no abuse of discretion with respect to this issue and, therefore, this assignment of error is without merit.
ALLOWING TESTIMONY FROM MIKE'S EX-WIFE AND FORMER LOVER
¶ 36. The Mother next complains that it was an abuse of discretion and/or manifest error for the chancellor to admit the testimony of Rita, Mike's ex-wife, and of Susan, his former lover and the mother of another one of his children. The Mother contends that this was "about an old case having nothing to do with this Child, this Mother, or this custodial home." The contention is that this testimony only concerned the contact of the stepfather as it related to a different child, the stepfather's daughter.
¶ 37. What the Mother failed to note is that the testimony confirmed that during these earlier relationships Mike was habitually naked in front of neighbors, friends, and babysitters even when his own female child was present. While the testimony would not have been proper under Rule 404(a) "for the purpose of proving that he acted in conformity therewith in a particular occasion," the testimony was admissible to show the general nature of the stepfather's character. Mississippi Rule of Evidence 405(b) does allow for specific instances of conduct: "In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct."
¶ 38. As noted by the Father, there is no Mississippi case law specifically addressing this issue, but cases from other jurisdictions confirm that similar evidence is admissible. See Leisure v. Wheeler, 828 N.E.2d 409, 418-19 (Ind.Ct.App.2005) (criminal history of the ex-wife's current husband as admissible character evidence in proceeding to modify custody); see Stone v. Steed, 54 Ark.App. 11, 923 S.W.2d 282 (1996) (evidence of misdemeanor convictions of third parties at the mother's house reflected on the mother's morality and was relevant to the best interest of the child and who should have custody); In re K.L.R., 162 S.W.3d 291 (Tex.App.2005) (evidence of a parent's arrests is admissible evidence in a child custody proceeding).
¶ 39. In Leisure, the Indiana Court of Appeals recited the familiar rule that where "a person's character is an issue in the case, character evidence has independent relevance and is not offered for the prohibited purpose of showing conforming conduct." Leisure, 828 N.E.2d at 419 (citing 12 Robert Lowell Miller, Jr., Indiana Practice § 404.103, at 339 (2d ed.1995)). The Leisure court further stated that "[w]hen character has been put in issue by the pleadings as typically occurs in child custody cases, evidence of character must be brought forth." Id. (citing IA John Henry Wigmore, Wigmore on Evidence § 69.1, at 1457 (Tillers rev. 1983) ("The right of a parent to retain custody of a child may depend on a finding of the fitness of that person as a parent. In these cases, character evidence is of course admissible since what is at issue in the case is a character trait, and if the issue [is] to be resolved on the basis of evidence, evidence of character must be admitted.")). The Leisure court concluded that "Mother's current husband's character is a material issue . . . because if custody were to be modified, then he would be living in the same household as [the child] and helping to raise him. Therefore, we cannot say that the trial court erred by admitting evidence *666 of Mother's current husband's criminal history." Id.
¶ 40. In the instant case, evidence of Mike's past conduct was not introduced to prove that he acted in conformity with that conduct on any specific occasion. Rather, it was introduced to demonstrate Mike's general character as that character relates to Mike's and the Mother's moral fitness, as well as to demonstrate that Mike's presence in the custodial home constituted a material and adverse change in circumstances.[5] Accordingly, because the determination of the Son's best interests in this case necessarily required scrutiny of Mike's character, we find that the chancellor did not err in admission of the testimony concerning Mike's past conduct. There is no abuse of discretion and the assignment of error is rejected.
NOT ALLOWING EVIDENCE FROM THE INITIAL CUSTODY PROCEEDINGS
¶ 41. The Mother argues that the chancellor misconstrued and misapplied Lackey v. Fuller, 755 So. 2d 1083 (Miss. 2000) and committed manifest error in refusing to consider the circumstances of the initial custody proceeding, specifically the Father's alleged history of physical abuse of the Mother. The Mother argues that Mississippi Code Annotated sections 93-23-43 and XX-XX-XXX mandate that the chancellor must consider such evidence in any modification hearing.[6]
¶ 42. In Lackey, the chancellor punished the mother for her pre-divorce behavior. The Mother contends that the chancellor in this case is punishing the stepfather for conduct which occurred years before their marriage in a custody case involving a different child. The Mother also contends that the divorce proceedings in Shelby County, Tennessee, were required to show that the Father was physically abusive to his ex-wife. The Mother also seems to insinuate that the failure of the Father's current wife to testify also was significant to show that the abuse was continuing. Neither of these arguments are supported by any authority before the Court and are specifically rejected as improper argument to the Court. The Mother was free to offer her own evidence and testimony at the custody hearing concerning the Father's character. Her failure to do so cannot give rise to an adverse inference against the Father nor form the basis of an assignment of error with respect to the chancellor's decision. Accordingly, this assignment of error is without merit.
IV. WHETHER THE CHANCELLOR'S FINDINGS AND CONCLUSIONS ARE SUPPORTED BY THE RECORD
¶ 43. The Mother argues that the chancellor's conclusions of fact and law are not supported by competent, substantial and credible evidence in the record. The Mother cites numerous facts and conclusions which she contends are not supported by the record.
¶ 44. Whenever a chancellor's decision is based on credible evidence, this Court will affirm that decision. Williams, *667 656 So.2d at 330; Chamblee, 637 So.2d at 860. Or differently stated, this Court may reverse a chancellor's findings of fact only when there is "no substantial evidence in the record" justifying his findings. Hensarling, 824 So.2d at 586(¶ 7) (quoting Henderson v. Henderson, 757 So. 2d 285, 289 (Miss.2000)).
¶ 45. Basically, the Mother simply disagrees with the chancellor's findings of fact and conclusions. First and foremost, there was ample evidence of the stepfather's repeated nudity, together with his own testimony that he is "usually naked when . . . doing [his] active daily living skills." Contrary to the Mother's contention, Mike's nudity was ongoing and not limited to "isolated incidents."
¶ 46. There was also evidence that the Son was disturbed by the nude photographs, that the Son was upset about Mike choking the Mother, that the Son had strong emotional ties to the Father, that the Father's employment situation was stable and flexible, and that the moral fitness issue under Albright favored the Father. While there was conflicting testimony, there was also testimony which supported each of these factual findings by the chancellor.
¶ 47. The Court has reviewed the chancellor's findings and concludes that there was sufficient credible evidence to support the chancellor. Although we find that the chancellor incorrectly allowed testimony of the Step-Grandmother repeating the Son's identification of Mike as the photographer of the nude photographs, we find that this error was harmless. The nature of the photographs, as well as the fact the Son was upset about the pictures, speak to the inappropriate nature of the pictures and support the chancellor's findings of fact and conclusions of law. Even without the Son's identification, there was sufficient evidence for the chancellor to conclude that the photographs were taken in the custodial home, and that the photographs were inappropriate. Accordingly, the chancellor's findings and conclusions are supported by the record and any argument to the contrary is without merit.
CONCLUSION
¶ 48. For the foregoing reasons, we find no reversible error and affirm the judgment of the Desoto County Chancery Court.
¶ 49. THE JUDGMENT OF THE CHANCERY COURT OF DESOTO COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.
NOTES
[1] Pseudonyms are being used throughout as this is a confidential case.
[2] To support the conclusion that custody may be modified where adverse conditions exist although the child has not yet been adversely affected, the chancellor cited Riley v. Doerner, 677 So. 2d 740, 744 (Miss.1996). There, the Mississippi Supreme Court stated "that where a child living in a custodial environment clearly adverse to the child's best interest, somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment." Id.
[3] Although the Mother refers to D.G. as her "ex-Stepmother," the record indicates that D.G. was married to the Mother's father at the time the statements were made and at the time of his death. D.G. will be referred to as the Maternal Step-Grandmother or Step-Grandmother in the opinion.
[4] We note that this testimony reflected the Step-Grandmother's recollection of the Son's actions and emotional state with respect to the photographs. Accordingly, this testimony is not hearsay.
[5] We note also that Mississippi Rule of Evidence 404(b) allows the introduction of character evidence by way of evidence of "other crimes, wrongs, or acts . . . for other purposes such as . . . absence of mistake or accident." Evidence that Mike had exposed himself to others in the past would be relevant to demonstrate that subsequent indecent exposures were not inadvertent or accidental.
[6] Section 93-23-43 was repealed effective July 1, 2004; however, section 93-27-402 (Rev.2004) provides that actions involving child custody commenced prior to July 1, 2004, would be "governed by the law in effect at the time the motion or other request was made." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590420/ | 270 S.W.3d 220 (2008)
RIGDON MARINE CORPORATION, Appellant,
v.
Bobby ROBERTS, Jr., Appellee.
No. 06-08-00008-CV.
Court of Appeals of Texas, Texarkana.
Submitted September 10, 2008.
Decided October 7, 2008.
*224 Robert J. Killeen, Jr., Killeen & Stern, PC., David W. Holman, The Holman Law Firm, PC, Houston, for appellant.
Michael P. Doyle, Doyle Raizner, LLP, Alan B. Daughtry, C. Elaine Howard, Jackson Walker, LLP, Houston, Russell R. Smith, Fairchild, Price, Thomas & Haley, LLP, Nacogdoches, for appellee.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
OPINION
Opinion by Justice MOSELEY.
A melee which approached mutiny by an unruly crew on the coast of Angola, Africa, led to the brutal beating of Captain Bobby Roberts, Jr., the ship's master. Roberts brought suit against his employer, Rigdon Marine Company (Rigdon), owner of the Iberville ship, for Jones Act negligence and for failure to provide a seaworthy *225 crew and vessel.[1] A jury awarded Roberts a total of $1,505,000, including $1,150,000 in lost future earning capacity. Rigdon appeals the jury's Jones Act negligence and unseaworthiness findings, as well as the lost earning capacity award, alleging both legal and factual insufficiency to support the verdict. Rigdon also challenges the trial court's denial of its request to submit proposed "foreseeability" and "savage disposition" jury instructions. We affirm the judgment of the trial court because we find the evidence sufficient to support the jury's verdict and the requested instructions to be potentially misleading embellishments to the well-established Fifth Circuit Pattern Jury Charges.
I. MUTINY ON THE IBERVILLE
Roberts was originally hired by Rigdon to work as master aboard the vessel Bienville, a sister ship of Iberville. The Bienville and Iberville were both stationed in Angola to supply the drilling rigs working in the offshore hydrocarbon fields of Angola; both vessels had crews comprised of a mix of Americans and Angolans. According to Rigdon personnel, the Iberville's crew, including its then-captain, Jay Heater, had engaged in drug use while on board. Drinking and fighting, activities proscribed by company policy, had been reported by Rigdon employees as having occurred aboard the Iberville. Rodney Abshire, Rigdon's marine superintendent in Angola and the overall supervisor of the crews of both the Bienville and the Iberville, asked Roberts to move from the Bienville to replace Heater due to the reported violations of Rigdon policy, an act done presumably in the hope that Roberts would be able to quell the prohibited conduct. In order to better ensure Roberts's safety in the task, Abshire promised to remove certain troublesome members of the crew from the ship.
This promise to ensure Roberts's safety was rendered meaningless when Roberts was brutally assaulted during his first day aboard the Iberville. When Roberts first boarded the deck, he encountered Heater, who maintained to Roberts that he (Heater) was to remain in charge and that Roberts was only to assume the duties of the relief captain; after this declaration, Heater suggested that Roberts place his belongings in the relief captain's quarters. Abshire, who arrived onboard the Iberville with Roberts, quickly corrected Heater by confirming Roberts was indeed "coming on as the lead." As problems presented themselves throughout the day, Heater would repeatedly ask Roberts when issues arose, "Do you want me to handle this as the captain or are you going to handle it as the captain?" Heater generally appeared irritated that Roberts was relieving him of his position as captain of the Iberville.
Three major events, all occurring within twenty-four hours, establish the unruliness of the Iberville's crew. First, an American crew member who did not have permission to go into town, left the craft and returned intoxicated and had either sat or spat on a local Angolan. The Angolan members of the crew took great umbrage at this display of disrespect toward their countryman, and a virtual riot broke out among them, during which they made the demand that the offending American crewman be immediately ejected from the ship. The immediate unrest appeared to have been assuaged by Roberts's assurance to the Angolans that the offending American crew member would be escorted off the vessel the following morning.
*226 Roberts assumed that the tumult had fully subsided and continued to command the ship from the vessel's bridge. Heater stuck "his head in the side door" of the bridge and once again asked, "Are you going to handle this as the captain or am I?" Roberts, attempting to discern the problem to which Heater made reference, came to the door where Heater stood and was encountered by an unidentified Angolan assailant on the deck who rambunctiously proclaimed, "You're not the captain, you die; you die now." The assailant drew a knife and began to pummel Roberts with his fists. Roberts managed to escape the assailant and locked himself in the ship's "head" with Heater present on the bridge with Roberts. Shaken by the incident, Roberts called Abshire, related the occurrences and his current situation, and asked him to get to the ship as soon as possible. Roberts then secured the three doors to the bridge and called shore support for further assistance.
Irate Angolan crew members began to surround the secured doors shielding Roberts. Heater, disobeying a direct order from Roberts, opened a locked door, allowing angry Angolans to enter. Roberts testified that the Angolans hit him numerous times in the face, kicked him, and caused him to tumble down the stairs with four of the assailants atop him. At the foot of the stairs, they continued thrashing Roberts so severely that "there was blood all over the walls." With the aid of another crew member, Roberts finally extricated himself from them and locked himself in another room. As a result of this beating, Roberts was bleeding, hurt everywhere, could not see in front of him at times, and experienced ringing in his ears. When Abshire arrived, Roberts asked to be taken to a doctor. Although Abshire testified that Roberts looked like he had been assaulted, was "banged around pretty good" (including a bloodied lip and red eye) and was in fear of his safety, Roberts claims that two days passed before a doctor was made available to him. As a result of these incidents, Roberts suffered numerous lasting injuries, including two slipped discs in his back, thoracic outlet syndrome, "concussive-type syndrome," post-traumatic type headaches, constant muscle tension, and chronic depression, anxiety, memory loss, and confusion.
II. OVERVIEW OF APPLICABLE MARITIME LAW
A. Jones Act Negligence
By enacting the Jones Act, Congress provided "a seaman injured in the course of employment" with a cause of action against an employer. 46 U.S.C. § 30104 (2008). To enlarge protection afforded to seamen under general maritime law, the Jones Act is liberally construed. Boutte v. Cenac Towing, Inc., 346 F. Supp. 2d 922 (S.D.Tex.2004). In order to prevail on a Jones Act negligence claim against his employer, a seaman must establish: (1) personal injury in the course of his employment; (2) negligence by his employer or an officer, agent, or employee; and (3) causation to the extent that his employer's negligence was the cause "in whole or in part" of his injury. Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F.3d 432, 436 (4th Cir.1999); Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335 (5th Cir.1997). Negligence under the Jones Act is interpreted broadly and is merely a failure to act as a prudent seaman under the circumstances. Gautreaux, 107 F.3d at 338. Liability for injuries sustained from Jones Act negligence may be based on two different, but not inconsistent, theories: the direct negligence theory and vicarious liability. E.L. Kellett, Annotation, Liability Under Jones Act or Seaworthiness Doctrine for Injuries Caused *227 by Assault, 22 A.L.R. 3d 624 (1968). To prove direct liability under the Jones Act in an assault case, the plaintiff must prove that the defendant either knew or should have known of the crew member's felonious and criminal propensities. Birks v. United Fruit Co., 48 F.2d 656, 657 (D.C.N.Y.1930). An employer may also be liable under the direct theory for other acts of direct negligence, such as allowing fights among the crew, failing to enforce rules prohibiting alcohol and drugs on board, or otherwise failing to provide for an employee's safety. Colburn v. Bunge Towing, Inc., 883 F.2d 372, 374 (5th Cir. 1989) (fundamental duty of Jones Act employer is to provide seaman employees with reasonably safe place to work); Stankiewicz v. United Fruit Steamship Corp., 229 F.2d 580, 582 (2nd Cir. 1956); Jensen v. United States, 184 F.2d 72, 74-75 (3rd Cir.1950).
Recovery under the vicarious liability theory requires proof that the assailant was acting within the scope of his employment or in furtherance of his employer's business. Miles v. Melrose, 882 F.2d 976, 983-84 (5th Cir.1989). The law is clear that an assault is not in furtherance of the master's business when it is committed by the crew upon the master. Birks, 48 F.2d 656. However, in contrast to the direct liability theory, no proof is required to show that the assailant was of vicious or dangerous character or that the employer had reason to anticipate the assault. Miles, 882 F.2d at 983-84; 22 A.L.R. 3d 624.
The causation burden for the claimant under the Jones Act is described as "featherweight." Miles, 882 F.2d at 983-84; Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex.1998). If proof justifies the conclusion that the employer's negligence "played any part, even the slightest, in producing the injury," the causation burden is met. Gautreaux, 107 F.3d at 335; Ellis, 971 S.W.2d at 406. This can be accomplished by "very little evidence." Miles, 882 F.2d at 984.
B. The Warranty of Seaworthiness
Maritime law also provides a cause of action for injuries resulting from defects or insufficiencies of a vessel, its crew, or its appurtenances that undermine the vessel's seaworthiness, render it unfit for its intended use, or make the vessel an unsafe place to work. Rivera v. Herndon Marine Prods., Inc., 895 S.W.2d 430, 434 (Tex.App.-Corpus Christi 1995, writ denied). The warranty of seaworthiness is a species of liability without fault. Boudoin v. Lykes Bros. Steamship Co., 348 U.S. 336, 337, 75 S. Ct. 382, 99 L. Ed. 354 (1955). An owner of a vessel is under an absolute, nondelegable duty to furnish a safe, seaworthy ship, complete with a competent crew. Miles, 882 F.2d at 981; Wiradihardja v. Bermuda Star Line, Inc., 802 F. Supp. 989, 994 (S.D.N.Y.1992). This duty is completely independent of an owner's duty under the Jones Act. Thus, to succeed on a claim for unseaworthiness, a plaintiff must only show that "the unseaworthy condition of the vessel was the proximate or direct and substantial cause of the seaman's injuries." Hernandez, 187 F.3d at 439; Comeaux v. T.L. James & Co., 702 F.2d 1023, 1024 (5th Cir.1983). It is now settled that the employer's lack of knowledge of the assailant's character is no barrier to liability under the seaworthiness doctrine. Boudoin, 348 U.S. at 339-40, 75 S. Ct. 382; Keen v. Overseas Tankship Corp., 194 F.2d 515, 518 (2nd Cir. 1952). This proposition is in accord with the nature of the doctrine as a no-fault "warranty."
In his 1732 work, Gnomologia, English clergyman Dr. Thomas Fuller said, "He that will not sail till all dangers *228 are over must never put to sea." Since sailors lead a rough life on the seas and are "more apt to use their fists than office employees," the no-fault warranty does not mean that a shipowner is liable for injuries "resulting from every sailors' brawl." Boudoin, 348 U.S. at 338-39, 75 S. Ct. 382; Miles, 882 F.2d at 981. In the case of an assault, liability turns on whether the assault was within the usual and customary standards of calling or whether it was committed by a seaman with a wicked disposition, a propensity for evil conduct, or a savage and vicious nature. Boudoin, 348 U.S. at 340, 75 S. Ct. 382. If the assaulting seaman has such a disposition, the ship is considered to be a perilous place. Id. An attack or threat with a dangerous or deadly weapon is sufficient to establish unseaworthiness. Hildebrand v. S.S. Commander, 247 F. Supp. 625, 627 (E.D.Va.1965) (assailant third officer was incompetent crew member when he initiated unprovoked attack using threat of pocket knife, such that second officer's claim of unseaworthiness was sustained); 22 A.L.R. 3d 624.
III. PROPER DENIAL OF RIGDON'S PROPOSED JURY INSTRUCTIONS
A. Standard of Review
An instruction is proper if it might assist the jury in answering the submitted questions, accurately states the law, and finds support in the pleadings and evidence. TEX.R. CIV. P. 277; Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992); Wal-Mart Stores, Inc. v. Middleton, 982 S.W.2d 468, 470 (Tex.App.-San Antonio 1998, pet. denied); La. & Ark. Ry. Co. v. Blakely, 773 S.W.2d 595, 598 (Tex.App.-Texarkana 1989, writ denied). A trial court is afforded more discretion when submitting instructions than when submitting questions. Middleton, 982 S.W.2d at 470. Since the trial court has considerable discretion to determine necessary and proper jury instructions, we review a trial court's decision to refuse a particular instruction under an abuse of discretion standard. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex.2006); In re V.L.K., 24 S.W.3d 338, 341 (Tex.2000); Blakely, 773 S.W.2d at 598. An abuse of discretion occurs where a trial court acts arbitrarily, unreasonably, without consideration of guiding principles, or clearly fails to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985); Middleton, 982 S.W.2d at 469.
When a trial court refuses to submit a requested instruction on an issue raised by the pleadings and evidence, we first determine if the instruction was reasonably necessary to enable the jury to render a proper verdict. Shupe, 192 S.W.3d at 579; Tex. Workers' Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex.2000) (referring to TEX.R. CIV. P. 277, 278). The trial court should refuse to submit an unnecessary instruction even if it correctly states the law. Blakely, 773 S.W.2d at 599. Well-settled pattern jury charges should not be embellished with addendum. Weeks Marine, Inc. v. Salinas, 225 S.W.3d 311, 319 (Tex.App.-San Antonio 2007, pet. dism'd).
The omission of an instruction is reversible error only if the complaining party establishes that the omission probably caused the rendition of an improper judgment. TEX.R.APP. P. 44.1(a); Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 723 (Tex.2003). Any error in the omission of an instruction is harmless "when the findings of the jury in answer to other issues are sufficient to support the judgment." Shupe, 192 S.W.3d at 579-80 (citing *229 Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 750 (Tex.1980)).
B. Procedural History Relating to the Charge
At the charge conference, the trial court adopted Roberts's charge based on the Fifth Circuit Pattern Jury Charges. Rigdon objected to the charge because it did not instruct the jury on foreseeability or an assailant's savage disposition. Rigdon's proposed charge unsuccessfully requested the inclusion of the following instructions:
A seaman's employer is legally responsible for the negligence of one of his employees while that employee is acting within the course and scope of his job. He is not, however, responsible for an assault unless it is foreseeable and the vessel's Master could have, but failed to, prevent the assault.
Unfit crewmembers constitute just as much of a hazard as unfit gear: liability can arise if there is evidence that a particular crewmember had a propensity for violence. However, recovery is not allowed for every typical "sailors' brawl" or "fisticuffs."
Recovery from a shipowner, under the doctrine of unseaworthiness, for an assault by one of the ship's personnel upon another, may be had if there is proof that the assailant had such a savage disposition as to endanger the others who worked on the ship. A seaman meets this standard only if he has a wicked disposition, a propensity to evil conduct, or a savage and vicious nature.
The trial court denied Rigdon's request to include these instructions.
C. Foreseeability Under the Jones Act
Rigdon argues that the trial court erred in failing to submit its instruction on foreseeability to the jury. Rigdon's argument is unsuccessful because the proposed instruction attempts to limit Roberts's theory of recovery, misstates the law, and is unnecessary. The instruction focuses specifically on the assault by the unknown seaman and the beating by local Angolans. The trial court could have determined that the instruction does not assist the jury because it does not address Roberts's direct liability theorythat Rigdon is liable for not ensuring his safety upon a vessel known to contain an unruly crew that failed to adhere to company policies against alcohol use, drug use, and fighting. Also, Rigdon's narrowly drafted proposed instruction begins by discussing the vicarious liability theory of recovery under the Jones Act. In the following sentence, the instruction states that Rigdon is not liable for an assault unless it is foreseeable. However, the law is clear that in contrast to the direct liability theory, no proof of foreseeability is required under the vicarious liability theory. Miles, 882 F.2d at 983-84; 22 A.L.R. 3d 624. Thus, the instruction misleads the jury and misstates the law.
The trial court utilized the Fifth Circuit Pattern Jury Charges, which set forth the elements of Jones Act negligence(1) personal injury in the course of employment; (2) negligence by the employer or an officer, agent, or employee; and (3) causation to the extent that his employer's negligence was the cause "in whole or in part" of injury. Hernandez, 187 F.3d at 436; Gautreaux, 107 F.3d at 335. The requested embellishment by Rigdon was not necessary to render a proper verdict per Gautreaux. Since the pattern jury charges are well established, we cannot say that the trial court acted arbitrarily, unreasonably, or without consideration of guiding principles. Walker, 827 S.W.2d at 840.
D. Savage Disposition Instruction Under Warranty of Seaworthiness
*230 Rigdon's proposed instruction on savage disposition is a correct statement of the law. However, it again addresses only one theory of recovery under the warranty of seaworthiness. Proof of the breach of this warranty is a showing that an assailant had a savage disposition or that the assault was not ordinary. The proposed instruction omitted that an attack with a dangerous weapon is an unordinary attack that renders a ship unseaworthy. Hildebrand, 247 F.Supp. at 627; 22 A.L.R. 3d 624.[2] Due to this omission, it is possible that the trial court could have found this instruction as presented would be misleading to the jury.
In theory, the jury could feel compelled to render a verdict that the ship was seaworthy if savage disposition was not proved, even if Roberts proved that an unordinary attack occurred. This would be an erroneous result. As such, the trial court could have concluded that the instruction would not aid the jury. Further, the instruction was unhelpful since it focused specifically on the assaults, yet did not address Roberts's theory that the vessel was unseaworthy because it contained an unruly crew and was generally not a safe workplace environment.
Even if the proposed instruction could have aided the jury, well-settled pattern jury charges should not be embellished with addenda. Salinas, 225 S.W.3d at 319 (approving trial court's rejection of instruction on seaman status as embellishment since court used Fifth Circuit Pattern Jury Charges). Again, because the trial court relied on the Fifth Circuit Pattern Jury Charges (which correctly stated the law on the warranty of seaworthiness) as its guide, this Court does not determine that the trial court acted arbitrarily, unreasonably, or without consideration of guiding principles. See Walker, 827 S.W.2d at 840.
Rigdon's first point of error is overruled.
IV. THE EVIDENCE IS LEGALLY SUFFICIENT TO ESTABLISH JONES ACT NEGLIGENCE AND UNSEAWORTHINESS
A. Federal Standard of Review Applies for Sufficiency Analysis
State courts have concurrent jurisdiction with federal courts to try in personam admiralty actions. 28 U.S.C. § 1333(1) (2008); Garrett v. Moore-McCormack Co., 317 U.S. 239, 249, 63 S. Ct. 246, 87 L. Ed. 239 (1942). The United States Supreme Court has expressed its desire to have state courts uniformly apply the Jones Act and other admiralty law. Garrett, 317 U.S. at 244, 63 S. Ct. 246. Thus, when a state court hears an admiralty case, the court occupies the same position as a federal court sitting in diversity, and must apply substantive federal maritime law while following state procedure. Ellis, 971 S.W.2d at 406.
The United States Supreme Court's "uniformity requirement extends to the type of proof necessary for judgment." Garrett, 317 U.S. at 244, 63 S. Ct. 246. Similar to the burden of proof in the Jones Act, the standard of appellate *231 review is less stringent than under the common law. Ellis, 971 S.W.2d at 406; Salinas, 225 S.W.3d at 322. Under this federal standard, the jury is vested with complete discretion on all issues of liability, prohibiting this Court from conducting the traditional factual sufficiency review. Ellis, 971 S.W.2d at 406. Instead, the verdict must be affirmed unless the evidence points "so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary [conclusion]." Jones v. Wal-Mart Stores, Inc., 870 F.2d 982, 987 (5th Cir.1989) (citing Whatley v. Armstrong World Indus., Inc., 861 F.2d 837, 839 (5th Cir.1988)). In other words, once this Court determines that some evidence supports the verdict (even though it may be evidence about which reasonable minds could differ), the appellate review is complete. Ellis, 971 S.W.2d at 406; Miles, 882 F.2d at 981 (holding evidence is sufficient to support finding of liability under Jones Act unless there is a "complete absence of probative facts"). Absent a finding that the verdict is "clearly wrong and unjust," it cannot be set aside. Ellis, 971 S.W.2d at 407. In so determining, this Court views all the evidence in the light most favorable to the jury's verdict. Jones, 870 F.2d at 987; see also Kansas City S. Ry. Co. v. Catanese, 778 S.W.2d 114, 117 (Tex.Civ.App.-Texarkana 1989, writ denied). Anything more than a scintilla of evidence is legally sufficient to support the finding. Pilgrim's Pride Corp. v. Smoak, 134 S.W.3d 880, 888 (Tex.App.-Texarkana 2004, pet. denied); Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21, 29 (Tex.App.-Tyler 2003, pet. denied).
The appropriate standard of review to test the sufficiency of the evidence in unseaworthiness claims tried before a jury determines whether there is a reasonable evidentiary basis for the jury's verdict. Loehr v. Offshore Logistics, Inc., 691 F.2d 758, 760 (5th Cir.1982). Where that evidentiary basis is present, the court's "function is exhausted." Id.
B. Evidence Was Sufficient to Support Jury's Finding of Liability Under Jones Act
Sufficient probative facts in this case suggest that reasonable minds could differ on the outcome of whether Rigdon was negligent under the Jones Act. See Miles, 882 F.2d at 981; Ellis, 971 S.W.2d at 406. Under the direct theory of liability, an employer can be liable under the Jones Act for allowing fights among the crew or in failing to enforce rules prohibiting alcohol and drugs on board. Stankiewicz, 229 F.2d at 582; Jensen, 184 F.2d at 74-75. Based on the testimony that a crew member left the ship and came back drunk, boarded the ship and was abusive to others, together with testimony that the crew engaged in drug abuse, alcohol use, and fighting, and that the very reason that Roberts was reassigned to Iberville from Bienville to quell such conduct in the future, the jury could conclude that the Iberville's rules prohibiting these activities were not enforced. Thus, the jury could have found Rigdon negligent in failing to provide Roberts with a safe place to work or in failing to provide an adequate, competent crew.
By not removing unruly crew members (including Heater, after he proclaimed in Abshire's presence Roberts was not the captain), the jury could have found that Abshire, Roberts's superior, breached a fundamental duty of the Jones Act in failing to provide for Roberts's safety. See Colburn, 883 F.2d at 374. In delaying Roberts's medical treatment, even though he was in bad shape, the jury could have decided that Rigdon was imprudent. See Premeaux v. Socony-Vacuum Oil Co., 144 Tex. 558, 192 S.W.2d 138, 143 (1946). Even focusing on the direct theory of liability *232 for an assault, it is conceivable that the jury could have determined the assaults committed by an unruly, possibly dangerous crew, were foreseeable to Rigdon since Abshire was required to replace Heater after reports of the crew's behavior, and, with the understanding that the crew was dangerous, promised to provide for Roberts's safety.
In sum, based on the evidence, which is viewed in a light most favorable to Roberts's position, the Court can conclude that the jury's verdict was not clearly unjust and wrong. See Jones, 870 F.2d at 987; Ellis, 971 S.W.2d at 407.
C. Evidence Was Sufficient to Support Jury's Finding of Unseaworthiness
For precisely the same reasoning set out in the previous section, the jury could have found that Rigdon breached its absolute, nondelegable duty to furnish a safe, seaworthy ship complete with a competent crew. See Miles, 882 F.2d at 981. Moreover, the jury could have determined that the assaults committed upon Roberts did not fall into the category of ordinary assaults or sailors' brawls, but were, rather, vicious and unprovoked attacks. See Miles, 882 F.2d at 981. The jury could determine that an attack with a knife, even though the knife was not actually employed as a weapon in the assault, amounted to an attack with a dangerous weapon. Hildebrand, 247 F.Supp. at 627; 22 A.L.R. 3d 624. Thus, we can conclude that there was a reasonable evidentiary basis for the jury's verdict. See Loehr, 691 F.2d at 760.
Rigdon's second point of error is overruled.
V. THE EVIDENCE IS SUFFICIENT TO SUPPORT JURY'S LOST FUTURE EARNING CAPACITY AWARD
Earning capacity is the ability and fitness to be employed in exchange for compensation including salary, commissions, and other benefits. Smoak, 134 S.W.3d at 899 (citing Baccus v. Am. States Ins. Co., 865 S.W.2d 587, 588 (Tex.App.-Fort Worth 1993, no writ)). Proof of loss of earning capacity is always uncertain, must be judged on the particular facts of each case, and must be left largely to the discretion of the jury. Jones, 870 F.2d at 989; McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712-13 (1943); Port Terminal R.R. Ass'n v. Sims, 671 S.W.2d 575, 578 (Tex.App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.). Since it is well settled that minors who have never worked can suffer an injury that diminishes their future ability to work, recovery for loss of future earning capacity does not require a showing of lost earnings. McIver, 169 S.W.2d at 712; Smoak, 134 S.W.3d at 903. Factors such as stamina, efficiency, weakness, degenerative changes, and the ability to work even while experiencing pain, are legitimate considerations in determining whether a person has experienced an impairment in future earning capacity. Smoak, 134 S.W.3d at 899; Springer v. Baggs, 500 S.W.2d 541, 544 (Tex.Civ.App.-Texarkana 1973, writ ref'd n.r.e.). Thus, if Roberts demonstrated that pain or any other diminished ability prevented him from getting and holding a job, he was entitled to a lost future earning capacity award. See Reynolds, 127 S.W.3d at 38.
The fact that Roberts earned as much as or more during trial than he did before his assault does not bar him from recovering lost earning capacity. See Jones, 870 F.2d at 990. While the damages resulting from decreased earning capacity can best be shown by evidence of the amount that Roberts was capable of earning before he was injured compared to what he was capable of earning afterward, *233 this type of proof is not required. See Smoak, 134 S.W.3d at 903; Sims, 671 S.W.2d at 578. Rather, the award can be based on a composite of all factors affecting the capacity of a person to earn. Jones, 870 F.2d at 989-90; Reynolds, 127 S.W.3d at 36. Thus, Roberts was not required to prove the exact amount of damages, but was only required to present facts from which the jury could in its sound discretion make a reasoned decision regarding the amount of the award. See McIver, 169 S.W.2d at 712-13; Springer, 500 S.W.2d at 545 (upholding jury's award of $16,000 lost earning capacity even though plaintiff went back to work after injury for same employer at same wage where testimony established plaintiff unable to work overtime, resulting in ten to twenty percent reduction in work over thirty-six-year life expectancy).
Here, trial testimony established that Roberts suffered chronic pain from two slipped discs in his back, thoracic outlet syndrome, post-traumatic type headaches, and constant muscle tension. Even Rigdon's doctor diagnosed Roberts with post "concussive-type syndrome." He also suffered from chronic depression, anxiety, memory loss, and confusion. Roberts testified that he was having trouble at work and experienced many headaches, ringing in his ears, exhaustion, panic attacks, had problems sleeping, and was emotionally upset. He also stated that his doctor preferred that he not work at all. His psychologist recommended that Roberts take a lesser position at work and expressed doubt as to whether Roberts would ever again be able to command the larger vessels. Nevertheless, even though Roberts had difficulty passing the physical examination, he was employed by Hornbeck to work on smaller boats. This employment, however, was short-lived and Roberts was subsequently discharged by Hornbeck. At the time of trial, he had worked as needed on small boats for Brown Water Marine Company on a "time-on/time off" basis. Rigdon's attorney pointed out that because of his injuries, Roberts was endangering people's lives by working for Brown Water Marine Company. Based on this testimony, we conclude that Roberts demonstrated that pain or other diminished ability prevented him from obtaining and holding a job such that he was entitled to a lost future earning capacity award.
To justify the amount of the award, Roberts stated that work on the smaller Hornbeck boats paid $420 per day.[3] On these boats, he could work 243 days for an annual salary of approximately $102,000. Prior to his injuries, Roberts could work on larger crafts. The Hornbeck large boats paid a captain or master $615 per day for an approximate salary of $149,445.[4] Roberts is forty-seven years old and the closing argument suggested an additional thirty-three years of life expectancy. As an example of how the jury could reach its award, simply subtracting $102,000 from $149,445 gives an annual discrepancy of $47,445. Multiplied by thirty-three (Roberts's remaining life expectancy), the damages for lost earning capacity would equal $1,565,685. The jury may have further taken Roberts's testimony that he can only work 180 days out of the *234 year, multiplied that by $195 (the difference between $615 per diem pay for large boats and the $420 per diem pay for smaller boats), and again multiplied a rounded figure of $35,000 annual loss by thirty-three years to arrive at a loss of $1,155,000. In sum, based on the numbers and figures presented at trial, we find support for the jury's $1,150,000 lost future earning capacity award.
VI. CONCLUSION
We affirm the judgment of the trial court because: 1) the refusal to submit Rigdon's proposed instructions was not in error, and 2) there was sufficient evidence presented to support the jury's findings regarding (a) Rigdon's liability under the Jones Act, (b) a breach of Rigdon's warranty of seaworthiness, and (c) the lost future earning capacity award of $1,150,000.
NOTES
[1] This case has been transferred to this Court as part of the Texas Supreme Court's docket equalization program.
[2] Instead, Rigdon attempts to show examples where vessels were found to be seaworthy even though deadly weapons were used during assaults. In the following cases Rigdon cited, the courts concluded that the vessels were not unseaworthy because the plaintiff actually provoked the attack: Connolly v. Farrell Lines, Inc., 268 F.2d 653 (1st Cir.1959); Jones v. Lykes Bros. Steamship Co., 204 F.2d 815 (2nd Cir.1953); Fountain v. John E. Graham & Sons, 833 F. Supp. 873 (S.D.Ala.1993); Scurlock v. Wolfe, No. 05-689, 2006 WL 4468337, 2007 U.S. Dist. LEXIS 26801 (E.D.La. Apr. 11, 2006); Gulledge v. United States, 337 F. Supp. 1108 (D.C.Pa.1972).
[3] Roberts also testified that he made $110,000 annually working for Hornbeck while he was making $102,000 working at Rigdon. However, it is important to note that Roberts attempts to show that if he had not been injured, he could work the Hornbeck big vessels and make $149,445 per year.
[4] Roberts also noted that he was able to work only 180 days annually instead of the full 243 days per year. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2586512/ | 226 P.3d 718 (2010)
233 Or. App. 622
STATE
v.
TYLER.
A136772
Court of Appeals of Oregon.
February 17, 2010.
Affirmed without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590478/ | 14 So. 3d 200 (2007)
DAVID KYLES
v.
STATE.
No. CR-06-0799.
Court of Criminal Appeals of Alabama.
September 14, 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/1590446/ | 270 S.W.3d 471 (2008)
George DAVIS and Suzanne Davis, and G & S School Services, Inc., Respondents,
v.
CHATTER, INC. a/k/a Family First Alerts, David A. Raine and Tim Mosolino, Appellants.
No. WD 69056.
Missouri Court of Appeals, Western District.
November 25, 2008.
*473 Robert D. Gaines, Kansas City, for appellant.
Douglas D. Silvius, Kansas City, for respondent.
Before JAMES M. SMART, JR., P.J., LISA WHITE HARDWICK, and JAMES E. WELSH, JJ.
JAMES M. SMART, JR., Judge.
Defendants Chatter, Inc., David Raine, and Tim Mosolino appeal the judgment entered in favor of plaintiffs George and Suzanne Davis after defendants' pleadings were struck as a sanction for failure to cooperate with discovery. They make numerous claims on appeal pertaining to the sanctions imposed and the damages awarded. The judgment is vacated as to the compensatory damage award, and the case is remanded to the trial court to specify the portion of the compensatory damages awarded for Count I and the portion awarded for Count II. It is affirmed in all other respects.
Facts
This case arises from an agreement in which the plaintiffs were to have been exclusive sales representatives for a company providing satellite text notifications to public entities needing reliable communications during a crisis. Plaintiff George Davis was an effective and successful sales representative, who, along with his wife Suzanne, was recruited by defendants from other endeavors to promote and develop a sales force for defendant Chatter, Inc.'s services. George and Suzanne Davis were also to receive company stock as part of their compensation for the development of markets for Chatter. Plaintiff George Davis alleged he had invested much time and energy recruiting, hiring and training representatives, and developing markets for defendants, but was never compensated in accordance with the contract. Plaintiffs further contended that defendants tortiously interfered with their contracts with third parties, refused to pay amounts due under the agreement, and caused them substantial damages.
On March 28, 2006, plaintiffs filed a petition for damages alleging breach of contract in Count I, tortious interference with contract in Count II, securities violations (related to the issuance of stock in Chatter, Inc.) in Count III, violation of the Telephone Consumer Protection Act in Count IV, and quantum meruit or unjust enrichment in Count V. Defendants filed a timely answer denying liability and asserting defenses.
Eight months after the case was filed, the circuit court entered a civil case management scheduling order. It set a trial *474 date in eleven months, scheduling it for October 9, 2007, and required discovery to be completed by September 1, 2007. Plaintiffs served defendants with first interrogatories and request for production of documents in July 2007. In August 2007, plaintiffs filed a motion to extend the discovery deadline from September 1, 2007, to October 1, 2007. The motion stated that the three defendants failed to appear for depositions and had not responded to written discovery requests. The court sustained the motion to extend discovery in September 2007. It noted that the trial date remained October 9, 2007.
Plaintiffs filed a motion to enforce discovery on September 12, 2007. The motion was based on defendants' failure to comply with discovery propounded on July 31, 2007. Defendants did not object to any discovery sought or seek any protective order. No documents responsive to the request were ever produced and no formal answer to the response was filed. Defendants' interrogatory answers to multiple interrogatories were incomplete and nonresponsive. Defendants failed to appear for their depositions scheduled for August 30 and 31. The information sought was financial information regarding sales made during plaintiffs' employment and after plaintiffs' sales agreement was improperly terminated.
Plaintiffs also sought information regarding defenses asserted by defendants in their answer and in two prior motions to dismiss or for summary judgment, both of which were denied. On September 7, 2007, plaintiffs sent their "golden letter rule" to defendants. Defendants' reply was to re-send the same incomplete, evasive, unsigned interrogatory answers and to state that it had supplied the only relevant documents it had and that other documents were not relevant to the case.
Defendants' counsel moved to withdraw in August 2007 for the reason that counsel was having difficulty communicating with her clients and securing cooperation from them on discovery issues. The motion stated that the individual defendants Raine and Mosolino planned to proceed as pro se litigants. Chatter, Inc., a corporation, was apparently intending to secure new counsel. In September 2007, defendants' counsel was granted leave to withdraw.
On October 1, 2007, the court set a hearing on the motion for October 5, 2007. Notice was transmitted to the defendants in California. In an October 1 electronic message response to the judge concerning the October 5 hearing, Mr. Raine, who resided in California, stated that he had secured an air ticket to be in Kansas City for trial from the 9th to the 11th, but that he "lacked the financial resources" to be there for the hearing on the 5th. He added that he had fully complied with discovery requests related to plaintiffs' "frivolous" allegations by supplying whatever he had.
On the 5th, defendants failed to appear at the hearing either by counsel or in person. The court found:
Defendants have failed to respond to the propounded discovery as required by the Missouri Supreme Court Rules, have failed to provide discovery after receipt of counsel's golden rule letter, have failed to respond to Plaintiffs' Motion for Enforcement of Discovery and have failed to appear for the hearing on Plaintiffs' Motion for Enforcement of Discovery.
The court struck the defendants' pleadings and entered an interlocutory order of default on all counts of plaintiffs' petition for plaintiffs and against defendants. The court scheduled a hearing for October 9, 2007, to determine the amount of damages *475 to be awarded. Immediate notice was provided to the defendants.
On October 8, Defendant Raine responded by electronic message. He informed the court that he had been "unable to secure the funds to purchase a ticket to Kansas City" for the trial. (We do not know how this related to the statement in his October 1 message that he had already secured a plane ticket to be present in Kansas City on the 9th, with a return flight to California on the 11th.) He requested a one week extension so he could "sell some personal items" to purchase a ticket.
That night, on the eve of the October 9 hearing, defendants engaged new counsel, Mr. Gaines, to appear the next morning in their behalf. Mr. Gaines, who had no opportunity to familiarize himself with the case, entered his appearance the next morning at the hearing. During the hearing, as a part of the court's sanctions ruling, Mr. Gaines was not allowed to cross-examine the plaintiffs' witnesses or otherwise participate. He objected to the denial of his participation and was allowed to make a record at the conclusion of all testimony.
The court made extensive comments on the record, pertaining to the sanctions imposed against the defendants. The court saw the issue as primarily one of fairness to the plaintiffs, because the defendants had been extremely recalcitrant and evasive about discovery. The court believed the defendants had followed a deliberate and calculated course of obstruction. The court believed the defendants had made their own bed. The court noted that one of the reasons that defendants' original counsel sought to withdraw was her inability to secure cooperation so as to proceed with discovery.
The court commented that "the file stinks of [defendants] not playing by the rules, as was just recited by [plaintiffs' counsel]." Even when Mr. Gaines appeared in behalf of the defendants, he had no knowledge of the case and, though it was not his fault, was entirely unprepared to address the issues of the case. The court explained why, in its view, the defendants' new counsel should not be entitled to participate at the hearing:
Part of the consequences of the failure to participate is they don't get to come in at the 11th hour, not having been deposed, not revealed what their defenses are, not having revealed by any of the written discovery or by having been orally examined what their thought process is. Where they think they are going with their defense. And have someone show up at the 11th hour and just ask questions with no prior warning strikes me fundamentally unfair. So the ruling I made earlier that they would not be allowed to have a counsel participate, and by that I mean, you can't participate at all.
The court also explained why the sanctions were harsh:
Your clients didn't do one thing right ever. So the discretion I'm exercising is as harsh as I can think of on purpose.
...
[After counsel sought again to ask questions] The point I want to make is, had the defendants submitted to a deposition and answered interrogatories or answered request for admissions which may have been propounded, a lot of these evidentiary issues and whether something was hearsay may have been resolved, may have been stipulated to..... I want everyone to understand, including [defendants' counsel] as he sits there in a terrible disadvantage with his hands tied. It's exactly what I contemplated to be the consequence of all of the discovery [recalcitrance] and the pattern *476 of failure to participate that leads me to feel that it would be prejudicial and a terrible unfairness to the plaintiffs to have allowed participation of counsel when his client his new found clients as of last night had not participated in any step of the way to make the opportunity to make an evidentiary record smoother, easier and maybe without the need for hearsay. When it turns out the reason I have an incomplete record is exclusively, I find as a matter of fact, to be the defendants.
The court heard the testimony of the witnesses as to damages, and then entered judgment on October 15, 2007. It awarded $4,102,300 in damages to plaintiffs on Counts I and II. It awarded $100,000 in punitive damages on Count II. It determined that plaintiffs were issued 50,000 shares of unregistered stock in defendant Chatter, Inc., which the court determined that plaintiffs shall retain. The court found that the defendants violated provisions of the Telephone and Consumer Protection Act by sending 26 text messages to plaintiffs in violation of the Act and that such an act was done by defendants willfully or knowingly in violation of said Act and awarded damages in the amount of $13,000 and enjoined defendants from sending further text messages to plaintiffs.
Standard of Review
"The imposition of sanctions for a party's failure to participate in discovery, including an order denying the right to cross-examine witnesses and present defenses, is a matter within the discretion of the trial court." Karolat v. Karolat, 151 S.W.3d 852, 857 (Mo.App.2004). "Rules 61.01(b) and (d) expressly permit a trial court to strike pleadings and enter judgment by default as permissible sanctions for failure to answer interrogatories or to produce documents." Id. "Although default is a drastic punishment, it is properly invoked where a party has shown a contumacious and deliberate disregard for the authority of the court." Id. "The rendition of judgment following the striking of pleadings for failure to obey a discovery order does not come by default in the ordinary sense but is treated as a judgment upon trial by the court." Id. "Thus, when such sanctions are imposed, the principles governing the appeal relate to the discretion of the trial court to impose such sanctions that render the cause uncontested and subject to judgment." Id. "The exercise of the trial court's discretion will not be disturbed on appeal unless it is exercised unjustly." Id. "Review is limited to determining whether the trial court could have reasonably concluded as it did, not whether the reviewing court would have imposed the same sanctions under the same circumstances." Id.
Defendants argue that there is a preference against default judgments when the litigants are pro se. He cites Everest Reinsurance Co. v. Kerr, 253 S.W.3d 100 (Mo.App.2008) (involving a default judgment under Rule 74.05(a), where the pro se litigant's purported "answer" was legally ineffective). Of course, even in the case of sanctions under Rule 61.01 there is a preference for resolving a case on the merits, but the circumstances differ from those of a true default because the sanction ruling is designed to punish obstructive behavior so as to deter such tactics. The purpose of the sanction is generally not merely to keep the case moving along. The question here is only whether the trial court abused its discretion in its rulings.
Point I
In their first point, defendants claim the trial court exceeded its authority when it granted plaintiffs' motion to enforce discovery and entered its order of *477 default judgment. They claim the trial court failed to follow Missouri rules and statutes with respect to ordering sanctions.
Defendants argue that after a party responds or objects to discovery, a discovery order must be issued and then violated pursuant to Rule 61.01(b) and (d) before a default judgment may be granted. Rule 61.01 allows the court to impose sanctions, even severe sanctions, when there is an unreasonable lack of cooperation in discovery. The rule provides that an evasive or incomplete answer is to be treated as a failure to answer. Subpart (b) also provides that the court may, upon motion and reasonable notice to other parties, "make such orders in regard to the failure [to properly respond to interrogatories] as are just and among others the following:
(1) An order striking pleadings or parts thereof, or dismissing the action or proceeding or any part thereof, or render a judgment by default against the disobedient party."
Subpart (d) provides that the court may enter similar orders for failure to produce documents and tangible evidence. Subpart (f) that the court may make similar orders for failure of a party to appear for a deposition.
Defendants here did not answer or otherwise respond properly to written discovery. Under Rule 61.01(b) and (d), a prior court order is required before the imposition of sanctions only where the responder asserts timely objections to the discovery propounded. None of the purported answers recited any applicable objections. Defendants say that they objected by means of various emails from defendants to plaintiffs, which plaintiffs attached to their motion to enforce discovery. These emails state that the defendants "have very little to present," that "plaintiffs have all necessary documents," and that there are "no further documents to produce." The purported answers were not objections. Nor were they legitimate answers in context. The lack of good faith was also shown in that the purported answers were not signed, and no certificate of service was ever filed with the court. Instead, defendants emailed their so-called answers, unsigned, to plaintiffs. Plaintiffs acknowledged the response and attached it to the motion to enforce discovery. The court reasonably viewed the "answers" as evasive and incomplete.
These statements do not constitute objections. The court considered defendants' emails in this context and found them unavailing. The trial court was allowed to treat defendants' inadequate answers as a failure to answer. Rule 61.01(a). The court was permitted to impose sanctions "upon motion and reasonable notice to other parties." Such was given in this case. Any contention that the court was required to issue more preliminary orders is without merit.
Defendants also argue that plaintiffs failed to attach a copy of plaintiffs' request for documents or inspection to the motion to enforce discovery, to which defendants never responded. While that is technically true, we see no prejudice here, since the defendants had not complied or responded to the request. Moreover, the sanctions were imposed for a general refusal to comply with discovery and were not premised solely upon failure to produce documents.
Defendants further argue that the trial court gave four days notice of the hearing with respect to plaintiffs' motion and that five days notice is required by Section 506.060(4) and Rule 44.01(d). Section 506.060(4) and Rule 44.01(d) state, in pertinent part:
A written motion ... and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period *478 is fixed by law or court rule or by order of the court.
These provisions, we believe, are intended to be applicable to notice provided by opposing counsel, not to a setting by the court. In any event, when insufficient notice is given under Rule 44.01, the court considers whether notice was reasonable under the facts and circumstances of the case. Sitelines, L.L.C. v. Pentstar Corp., 213 S.W.3d 703, 707 (Mo.App.2007); Zimmer v. Fisher, 171 S.W.3d 76, 80 (Mo.App. 2005). Plaintiffs filed their motion on September 11, 2007. Defendants did not respond. On October 1, 2007, the court issued an order, and made sure that defendants received immediate notice, that, because defendants had failed to respond to the motion, the court was setting a hearing for October 5, 2007. There is no showing that this notice was unreasonable.
Defendants additionally argue that plaintiffs' deposition notices were defective because they gave insufficient notice pursuant to Rules 43.01 and 57.03(b) and that no order of default can be based on their failure to appear for the depositions. (It is interesting that the defendants, who before were very casual about technicalities, now are very interested in technicalities. The imposition of harsh sanctions can have that effect.)
Defendants assert that the notices were defective in several respects. First, they state that they were mailed, which requires notice of ten as opposed to seven days. This is unsupported by the legal record. All three notices were both faxed and emailed to defendants, but not mailed. The notices were sent to counsel for all defendants, before she had withdrawn from representation. This is service upon the defendants. Rule 43.01(b).
Defendants also state that if the notices were faxed, there is no indication they were faxed before 5:00 p.m. on August 23, 2007. The certificates of service state that the notices were faxed on August 23. Pursuant to Rule 43.01(d), this was sufficient, in the absence of other information, to indicate that they were faxed prior to 5:00 p.m.
Finally, defendants state that no party executed a Form 17 consenting to notice by email and, accordingly, all email notices are defective under Rule 43.01(c). Service was effective via facsimile; thus, whether it was effective via email is irrelevant. We note, however, that defendants chose to communicate with plaintiffs via email and provided their purported discovery responses via email as well.
The point is denied.
Point II
In their second point, defendants claim the trial court abused its discretion when it entered its order of default judgment. They assert that no evidence suggested they acted with a deliberate disregard for the authority of the court. Defendants also assert that they had a meritorious defense and good cause for failure to comply with discovery deadlines. As set forth in the facts section, the trial court made extensive findings pertaining to the defendants' actions in this case. The court noted that defendants' counsel requested permission to withdraw because she was unable to obtain discovery from her clients. The court further commented that the file "stinks" of defendants "not playing by the rules" and that their efforts to change counsel were intended only to delay trial. Defendants failed to respond to interrogatories, failed to appear at scheduled depositions, failed to respond to the motion to enforce discovery, and failed to appear at the hearing on the motion. The court reasonably found that *479 the defendants acted with a deliberate disregard for the court's authority.
Defendants blame the court that they were without effective counsel because their attorney's motion to withdraw was granted less than a month before the hearing dates. Defendants also claim that the court granted plaintiffs' motion to enforce discovery without continuing the default hearing date or denying their attorney's motion to withdraw. Defendants' counsel was granted leave to withdraw on September 19; the hearing was scheduled on October 1 and occurred on October 5.
Defendants continue to act as though the court was required to presume that they were in good faith in their actions. They fail to persuade this court that they are innocent victims of an unreasonable trial judge. The trial judge had adequate reason to believe that the defendants' entire strategy was to delay, delay, delay, and then delay some more. Defendants never cared to cooperate with reasonable discovery. Defendants also had effectively communicated that they had no interest in addressing the merits of plaintiffs' claims. It appears their only interest was in forestalling justice as long as possible.
The point is denied.
Point III
In their third point, defendants claim the trial court abused its discretion in prohibiting their newly retained attorney from participating in the October 9, 2007 default judgment damages hearing. They argue that the sanction was too harsh a remedy and unfair and improper under the circumstances. First, defendants maintain that the sanction was not stated in the October 5, 2007 order of default judgment. Second, they state that the sanction prevented them from being able to introduce evidence that would have reduced or mitigated damages. Third, defendants argue that the sanction prevented objections to hearsay and speculative evidence. Fourth, they conclude that the sanction was not warranted under the circumstances.
The trial court has discretion to strike pleadings, enter default judgment, and prevent a party from presenting evidence or cross-examining witnesses as a sanction for failure to participate in discovery. See Crimmins v. Crimmins, 121 S.W.3d 559, 561-62 (Mo.App.2003); Portell v. Portell, 643 S.W.2d 18, 20 (Mo.App.1982). Here, as we have seen, the trial court intentionally imposed the very harsh sanctions because of the defendants' actions. It explained that allowing the defendants to participate, after failing to provide necessary information or the basis of their defense, would be unfair to the plaintiffs. The trial court tolerated no nonsense, yet we do not see that under the circumstances the trial court's discretion was exercised unjustly.
Although generally cross-examination of witnesses in a damage hearing after an interlocutory judgment under rule 74.05 should be allowed in order to help insure the accuracy of the damage determination, and although participation by counsel may be required in assessing punitive damages in such a case, we must remember that this was a sanctions ruling under Rule 61.01, not an interlocutory order of default under Rule 74.05. We cannot say that in this case there was a manifest abuse of discretion in refusing to allow cross-examination or other participation as part of the applicable sanction. The trial court had carefully considered the circumstances, its actions, and the consequences thereof. The court was aware that the defendants brought to the table no good faith and was aware that defendants had hindered plaintiffs' ability to prepare to obtain and present evidence of the amount of their damages *480 on the tortious interference claim as well as the contract claim. There is no allegation here that the trial court did not properly consider the evidence of damage and did not reach a proper result under the evidence (except that defendants allege that the court erred in merging the damages under the two counts). Nor is there an allegation of a constitutional due process violation in the determination of the punitive damage award. In the circumstances of this case, we discern no abuse of discretion or plain, obvious error.
Defendants were not denied an "adequate defense" when the court prohibited their new attorney from participating at the October 9, 2007 default judgment hearing. Their new attorney, contacted at the last minute, had no knowledge of the case, no chance to prepare, and nothing to present. The most he could have accomplished would have been to ask cross-examination questions or to make evidentiary objections. Appellants completely fail to demonstrate from the transcript how it would have made any difference if counsel had been allowed to cross-examine or make evidentiary objections. No examples are cited of how counsel's participation would have made a difference in the result. The damage had been done because the defendants had chosen a strategy of evasion rather than a strategy of litigating the merits. The defendants deprived themselves of any defenses or mitigation strategies they might otherwise have had.
The point is denied.
Point IV
In their fourth point, defendants claim that the trial court abused its discretion in awarding punitive damages in its October 15, 2007 judgment. They argue that the award was in excess of the pleadings in violation of statute. They do not challenge the amount of the award on grounds that it was not supported by the evidence, except as to their argument on submissibility of punitive damages. Nor do they raise any issue under the due process clauses of the federal or state constitutions.
Defendants first assert that there was insufficient evidence of outrageous conduct, evil motive, or reckless disregard presented at the default judgment hearing. They assert incorrectly that this was a breach of contract case. It is true, of course, that punitive damages are inappropriate in such cases. Here, however, the punitive damages were awarded under the second count, tortious interference with contract, which is a tort claim that will support a claim for punitive damages when there is evidence of outrageous conduct and evil motive. See Envtl. Energy Partners, Inc. v. Siemens Bldg. Techs., Inc., 178 S.W.3d 691, 708 (Mo.App.2005) (upholding an award of punitive damages for tortious interference with contract). See also Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104 (Mo. banc 1996).
Moreover, the plaintiffs presented substantial evidence of outrageous and entirely unjustified conduct by the defendants in destroying the plaintiffs' contractual business relationships with third parties. Appellants fail to develop an argument that there is any evidence that would suggest anything other than outrageous conduct and evil motives. Punitive damages were submissible and were properly considered by the court.
Second, defendants contend that the award of punitive damages was a lump sum against all defendants, without consideration of the culpability or financial worth of each defendant. Of course, plaintiffs were prevented from discovering exactly how to break down culpability, and prevented from learning of the defendants' *481 financial status, because defendants refused to engage in discovery. It is not necessary that punitive damage awards fix separate amounts for separate defendants. Bradshaw v. Deming, 837 S.W.2d 592, 594 (Mo.App.1992), suggests only that, absent separate evidence of the financial condition of each defendant against whom punitive damages are awarded, the award against all defendants equally deserving of being punished should be the same. Id. at 595. The court complied with this principle.
Defendants also state that punitive damages were not specifically pleaded. To the contrary, they were specifically pleaded. Punitive damages were awarded under the second count, tortious interference with contract. Apparently, defendants mean that no specific dollar amount was sought in the claim for punitive damages. Rule 55.19 states that in actions upon an alleged tort "no dollar amount or figure shall be included in the demand" for punitive damages. This supersedes any inconsistent statutes or rules. Rule 41.02. Point denied.
Points V and VI
In their fifth and sixth points, defendants claim that the trial court erred in awarding judgment with respect to Count I and Count II. The judgment states that compensatory damages are awarded on Counts I and II "in the total amount of $4,102,300.00." It does not specify which portion of the damages are related to Count I and which are related to Count II. Defendants Raine and Mosolino point out that they were not parties to the contract and were not named as defendants in Count I; only Chatter, Inc. was a defendant in Count I. In contrast, all three defendants were defendants to Count II. Because Raine and Mosolino were not defendants to Count I, they cannot be held liable for the portion of damages awarded under Count I.
Plaintiffs acknowledge this mistake but argue it is a harmless error because they are allowed only one recovery. While the error does not affect the total amount plaintiffs recover, it does impact the portion thereof for which Raine and Mosolino may be held responsible. Defendants argue that the error requires reversal without further action, resulting in plaintiffs' recovering none of their damages. That result would be nice for the defendants, but we see no indication that defendants are so entitled, and defendants present no such authority.
The court found the plaintiffs' compensatory damages under Counts I and II to be $4,102,300.00. Defendants do not assert that the award is unsupported by evidence. Thus, the question is what portion of the $4,102,300.00 in compensatory damage is under Count I and what portion is under Count II. This matter must be remanded for the trial court to address this narrow issue.
Defendants also argue that the judgment awarded damages in excess of the amount pleaded for both Counts I and II in violation of section 511.160. Counts I and II both pleaded damages "in excess of $50,000.00." Thus, the damages awarded were consistent with the pleadings. Moreover, section 511.160 applies to true default judgments under Rule 74.05. A judgment entered pursuant to pleadings struck under Rule 61.01 is a judgment based on sanctions, not a true default judgment (in which no answer was filed). This case is governed by general pleading rules as opposed to those geared specifically toward default judgments. Hoodenpyle v. Schneider Bailey, Inc., 748 S.W.2d 683, 688 (Mo.App.1988).
The point is granted only to the extent that we will remand for specification of the *482 compensatory damages as between Counts I and II.
Point VII
In their seventh point, defendants claim the trial court erred in granting judgment under the Telephone Consumer Protection Act because the Act applies only to consumers and not to persons who have a business relationship. 47 U.S.C. Section 227(a)(4). Defendants argue they have a business relationship with plaintiffs. A business relationship, once terminated, is no longer a business relationship. See 47 C.F.R. Section 64.1200(f)(5). The petition alleged, and there was testimony at trial, that the text messages were received at a time when there was no longer any business relationship with plaintiffs. It is undisputed that defendants terminated their relationship with plaintiffs. Defendants fail to develop an argument that there was evidence that showed there was a continuing business relationship. Thus, any contention that the damages were impermissible because a business relationship existed is unsupported by the record.
Defendants also claim that the interlocutory judgment awarded damages in excess of the amount pleaded in violation of section 511.160. In Count IV of the petition, plaintiffs requested the damages authorized under the Telephone Consumer Protection Act, specifically referencing their actual monetary losses or $500 per occurrence, whichever is greater. As we have already noted, section 511.160 applies to true default judgments, and this case is not a true default.
Defendants' various other arguments under this point are not identified in the point relied on. Thus, they are not preserved and are not addressed. Sexton v. Omaha Prop. & Cas. Ins. Co., 231 S.W.3d 844, 846 n. 2 (Mo.App.2007).
Point denied.
Conclusion
The trial court's imposition of harsh sanctions was within its discretion. The court did not lack authority to award compensatory and punitive damages. The damages under the Telephone Consumer Protection Act were not shown to be improper because the evidence showed that the parties' business relationship had been terminated. The judgment as to compensatory damages is vacated, and the case is remanded for the trial court to enter a judgment for compensatory damages, specifying what portion of the compensatory damage award is under Count I and what portion of such award is under Count II. It is affirmed in all other respects.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590468/ | 14 So. 3d 736 (2008)
COVENANT HEALTH & REHABILITATION OF PICAYUNE, LP and Covenant Dove, Inc., Appellants,
v.
ESTATE OF Mittie M. MOULDS, By and Through James BRADDOCK, Administrator for the use and Benefit of the Estate and Wrongful Death Beneficiaries of Mittie M. Moulds, Appellee.
No. 2007-CA-01250-COA.
Court of Appeals of Mississippi.
August 19, 2008.
Rehearing Denied December 9, 2008.
*738 John L. Maxey, Paul Hobart Kimble, Jackson, attorneys for appellants.
F.M. Turner, Hattiesburg, attorney for appellee.
Before KING, C.J., GRIFFIS, ISHEE and CARLTON, JJ.
ISHEE, J., for the Court.
¶ 1. James Braddock, on behalf of his deceased mother, Mittie M. Moulds, filed suit against Covenant Health and Rehabilitation of Picayune (Covenant Health) for wrongful death relating to his mother's stay at one of their facilities, the Picayune Convalescent Center. Covenant Health subsequently sought to compel arbitration based on the arbitration clause found in the admissions agreement governing Moulds's stay in that facility. The circuit court refused to compel arbitration, finding that Braddock lacked the power to enter into an arbitration agreement on behalf of Moulds and that the admissions agreement, as a whole, was substantively unconscionable. Aggrieved, Covenant Health appeals, seeking enforcement of the arbitration provision.
¶ 2. In response, Braddock asks this Court to refuse to compel arbitration because: (1) he did not have the legal capacity to bind his mother to arbitration; (2) the arbitration clause in the admissions agreement was not supported by consideration; (3) the arbitration clause is void due to fraud in the inducement; (4) the admissions agreement, as a whole, is substantively unconscionable; and (5) the designated arbitral forum is unavailable.
¶ 3. Finding error, we reverse the judgment of the circuit court and remand this case with instructions to enforce the arbitration clause of the admissions agreement and compel arbitration.
FACTS
¶ 4. Moulds was admitted to the Picayune Convalescent Center on November 16, 2000. At that time, she was suffering from Alzheimer's disease, dementia, and depression. Due to these illnesses, her son, Braddock, signed the admissions agreement on her behalf as her healthcare surrogate. The admissions agreement contained an arbitration clause requiring both parties to submit to binding arbitration in the event of any dispute.
¶ 5. Moulds left the Picayune Convalescent Center on September 20, 2004, and was admitted to a local hospital shortly thereafter. She died in the hospital on October 2, 2004. Braddock sued Covenant Health on behalf of his mother's estate for wrongful death, claiming that the injuries she suffered while in the care of the Picayune *739 Convalescent Center contributed to her death. After the initiation of the lawsuit, Covenant Health sought to stay proceedings in the circuit court and moved to compel arbitration pursuant to the arbitration clause in the admissions agreement. The circuit court denied the motion, and it is from that ruling that Covenant Health now appeals.
DISCUSSION
¶ 6. This Court reviews an order denying a motion to compel arbitration de novo. Vicksburg Partners, L.P. v. Stephens, 911 So. 2d 507, 513(¶ 9) (Miss.2005). Although not directly raised by either party in this case, as a threshold issue this Court must determine whether the Federal Arbitration Act (FAA) controls the arbitration agreement presented here.
¶ 7. Our supreme court has previously held that "singular agreements between care facilities and care patients, when taken in the aggregate, affect interstate commerce." Id. at 515(¶ 16). In this case, as in Vicksburg Partners, "since the arbitration clause is a part of a contract (the nursing home admissions agreement) evidencing in the aggregate economic activity affecting interstate commerce, the Federal Arbitration Act is applicable...." Id. at 515-16(¶18).
¶ 8. Having made the determination that the arbitration agreement in this case is governed by the FAA, we must next determine if that arbitration agreement is valid. Again we are guided by the supreme court, which has stated that "[i]n determining the validity of a motion to compel arbitration under the Federal Arbitration Act, courts generally conduct a two-pronged inquiry. The first prong has two considerations: (1) whether there is a valid arbitration agreement and (2) whether the parties' dispute is within the scope of the arbitration agreement." East Ford, Inc. v. Taylor, 826 So. 2d 709, 713(¶ 9) (Miss.2002). The second prong involves an inquiry into "whether legal constraints external to the parties' agreement foreclosed arbitration of those claims." Id. at 713(¶ 10) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985)).
¶ 9. With respect to the first prong of the analysis outlined above, "[t]o determine whether the parties agreed to arbitration, we simply apply contract law." Terminix Int'l, Inc., Ltd. P'ship v. Rice, 904 So. 2d 1051, 1055(¶ 9) (Miss.2004). Regarding this prong of our inquiry, Braddock asserts that he lacked the capacity to consent to arbitration as his mother's health-care surrogate or, in the alternative, that the arbitration clause is void because it lacked sufficient consideration. We address each of these issues below.
1. Braddock possessed the capacity to bind his mother to arbitration.
¶ 10. Braddock asserts that he did not have the capacity to bind his mother to arbitration while acting as her health-care surrogate under the Uniform Health-Care Decisions Act. Miss.Code Ann. §§ 41-41-201 to -229 (Rev.2005). Braddock does not dispute that he was, in fact, acting as his mother's health-care surrogate for the purposes of the Uniform Health-Care Decisions Act when she was admitted to the Picayune Convalescent Center.
¶ 11. Our supreme court recently addressed this very issue in Covenant Health Rehab. of Picayune, L.P. v. Brown, 949 So. 2d 732 (Miss.2007). In Brown, the plaintiffs, as administrators of the estate of their deceased mother, filed a wrongful death suit against the nursing home in which their mother resided prior to her death. Id. at 735(¶ 1). An adult daughter *740 of the decedent signed the admissions agreement as the "responsible party" for her mother upon admission to the facility. Id. The defendants filed a motion to compel arbitration based on the admissions agreement, and the trial court denied that motion. On appeal, the supreme court held that the adult daughter of the patient, acting as a health-care surrogate, had the authority to contractually bind her mother in health-care matters under our Uniform Health-Care Decisions Act. Id. at 736-37(¶ 10).
¶ 12. In reversing the trial court's denial of the motion to compel arbitration in Brown, the supreme court implicitly held that the surrogate's authority to bind the patient extended to the arbitration clause in the admissions agreement. In this case, because Braddock does not dispute that he was acting as his mother's health-care surrogate for the purposes of the Uniform Health-Care Decisions Act, we see no reason to depart from the supreme court's holding in Brown. Therefore, we find that a health-care surrogate, acting under the provisions of the Uniform Health-Care Decisions Act, is capable of binding his or her patient to arbitration. Accordingly, we find that Braddock's argument on this issue is without merit.
2. The arbitration clause does not fail for lack of consideration.
¶ 13. Braddock also asserts that the arbitration clause should fail for lack of consideration. He relies solely on the affidavit of Keri Ladner, the facility administrator for Covenant Health, in making this argument. Braddock points to Ladner's statement that his mother would not have been refused admission to the facility had he objected to the arbitration agreement as evidence that the arbitration clause lacked consideration; therefore, the arbitration clause should have been stricken from the admissions agreement.
¶ 14. We first note that Ladner's statements are irrelevant to the issue of consideration. The only thing her statements represent is an admission that, in retrospect, Braddock could have entered into a more beneficial contract for his mother had he bargained for it. Simply because one party to a contract later admits that the other party could have successfully bargained for more beneficial terms at the time the contract was formed does not mean that the element of the contract not bargained for is void for lack of consideration. In any contract, "[a]ll that is needed to constitute a valid consideration to support an agreement or contract is that there must be either a benefit to the promissor or a detriment to the promisee. If either of these requirements exist, there is a sufficient consideration." Theobald v. Nosser, 752 So. 2d 1036, 1040(¶ 15) (Miss.1999).
¶ 15. Second, even if Ladner's statements were relevant to this issue, this Court would be prevented from considering them by the parol evidence rule. It is a well-settled principle of contract law that "as an evidentiary matter, parol evidence to vary the terms of a written contract is inadmissible." Carter v. Citigroup, Inc., 938 So. 2d 809, 818(¶ 41) (Miss.2006) (quoting Stephens v. Equitable Life Assurance Soc'y of the United States, 850 So. 2d 78, 82(¶ 14) (Miss.2003)). Although parol evidence is sometimes admissible when there has been, among other things, a showing that a contract contains ambiguous language, here there has been no such showing. Neither party has even suggested that there is any ambiguity in the agreement.
¶ 16. Without such a showing, we must look to the agreement of the parties in order to determine whether there was sufficient *741 consideration. Again, in any contract, "[a]ll that is needed to constitute a valid consideration to support an agreement or contract is that there must be either a benefit to the promissor or a detriment to the promisee. If either of these requirements exist, there is a sufficient consideration." Theobald, 752 So.2d at 1040(¶ 15).
¶ 17. Here, there is clearly sufficient consideration to support the arbitration agreement. Both parties undertook duties toward one another under the admissions agreement. Covenant Health promised to provide care and assistance to Moulds. Braddock, on behalf of his mother, promised to pay Covenant Health for its service. The arbitration clause was one portion of that exchange, and it obligated both parties to arbitrate any dispute between them. The mutuality of exchange found throughout the admissions agreement provides ample evidence that there was sufficient consideration to support the arbitration clause; therefore, we find that the arbitration clause does not fail for lack of consideration.
3. The dispute is within the scope of the arbitration clause.
¶ 18. Although not directly addressed by either party in this appeal, under our standard of review in this case, this Court must determine that the dispute between the parties falls within the scope of the arbitration agreement in order to compel arbitration. To do so, we look to the language of the arbitration clause itself. In this case, that language is very clear. The arbitration clause states that "[t]he Resident and Responsible Party agree that any and all claims, disputes, and/or controversies between them and the Facility or its Owners, officers, directors, or employees shall be resolved by binding arbitration...." Clearly, the arbitration clause was meant to apply to any dispute, regardless of its nature, that arose between the facility and Moulds, including her son's current claim for wrongful death on behalf of her estate. Consequently, we find that the dispute between Braddock and Covenant Health falls within the scope of the arbitration clause.
4. The arbitration clause does not violate any external legal constraints.
¶ 19. Having determined that a valid arbitration agreement exists, and that the current dispute falls within the scope of that agreement, we now turn to the second prong of the test set out in East Ford, which involves an inquiry into "whether legal constraints external to the parties' agreement foreclose arbitration of those claims." East Ford, 826 So.2d at 713(¶ 10) (quoting Mitsubishi Motors Corp., 473 U.S. at 628, 105 S. Ct. 3346). The supreme court has stated that under the second prong of the East Ford test, "applicable contract defenses available under state contract law such as fraud, duress, and unconscionability may be asserted to invalidate the arbitration agreement without offending the Federal Arbitration Act." Id.
¶ 20. Specifically, Braddock asserts two of the defenses listed above, fraud and substantive unconscionability, in his argument to sustain the ruling of the circuit court and void the arbitration clause.
A. Braddock was not fraudulently induced into signing the admissions agreement.
¶ 21. Braddock argues that he was fraudulently induced into signing the admissions agreement. He again relies on the affidavit of Ladner, the facility administrator, and the fact that Ladner stated that acceptance of the arbitration clause was not a necessary precondition to *742 Mould's admittance to the facility. This statement does not give rise to a defense of fraud. As a contract defense, "[f]raud in the inducement arises when a party to a contract makes a fraudulent misrepresentation, i.e., by asserting information he knows to be untrue, for the purpose of inducing the innocent party to enter into a contract." Lacy v. Morrison, 906 So. 2d 126, 129 (¶ 6) (Miss.Ct.App.2004).
¶ 22. The defense of fraud in the inducement would be appropriately raised if, for instance, Ladner had made material misrepresentations to Braddock when he signed the admissions agreement, and those misrepresentations had been meant to, and did, induce Braddock to sign the agreement. However, the facts indicate that this is not what happened. As we noted above, all that Ladner's statements demonstrate is that Braddock could have potentially bargained for a better deal from the facility, i.e., one that did not include the arbitration clause. However, the admissions agreement itself did not contain any false information, it simply contained terms that could have been altered had Braddock attempted to do so. The fact that he failed to bargain for those terms does not constitute fraud in the inducement any more than it constitutes a lack of consideration. We therefore find that Braddock was not fraudulently induced into signing the admissions agreement.
B. The arbitration clause is substantively conscionable.
¶ 23. Braddock asserts that the admissions agreement contains several provisions that previously have been found unconscionable by our supreme court, and as a consequence, this Court should void the entire admissions agreement. In the alternative, Braddock argues that the terms of the arbitration clause itself are unconscionable and that we should strike the arbitration clause from the admissions agreement. Although this Court has serious misgivings about the language included in the admissions agreement, we are compelled to confirm the substantive conscionability of the admissions agreement and the arbitration clause.
¶ 24. Braddock correctly points out that the admissions agreement that he signed contains several clauses that have exactly the same language as clauses in other nursing home admissions agreements that our supreme court has explicitly held are unconscionable. In fact, the admissions agreement in this case appears to be identical to the one at issue in Brown, discussed above.[1] Specifically, (1) the language in section C5 requiring forfeiture by the resident for all claims except those for willful acts, (2) the language in section C8 waiving liability for the criminal acts of individuals, (3) the "grievance resolution process" set out in sections E5 and E6, (4) the language limiting the recovery of actual damages in section E7, (5) the language limiting the recovery of punitive damages in section E8, (6) the language in section E12 requiring the resident to pay all costs if the resident attempts to avoid or challenge the grievance resolution process, and (7) the language of section E16 that purports to change the statute of limitations was all held to be unconscionable in Brown. Brown, 949 So.2d at 738-41 (¶¶ 16-21). Moreover, the last line of the *743 arbitration clause itself contains language identical to language the supreme court struck from the arbitration clause that was at issue in Brown. Id. at 741(¶ 23).
¶ 25. Seeing no reason to depart from the supreme court's findings in Brown, we agree with Braddock's assertion that these clauses in his mother's admissions agreement contain unconscionable language as well. We therefore strike the offending language of clauses C5, C8, E5, E6, E7, E8, E12, and E16, as well as the last line of the arbitration clause from the admissions agreement.
¶ 26. We cannot, however, agree with the remainder of Braddock's argument that because of these unconscionable provisions, we must void the entire contract, or that the arbitration clause as a whole should be voided. In Brown, when faced with exactly the same unconscionable language, the supreme court chose to merely sever the unconscionable portions of the admissions agreement and the offending portion of the arbitration clause and enforce the remaining sections, including compelling the parties to arbitrate. Given the striking similarity of these two cases, including the fact that they involve substantially identical admissions agreements, we are compelled to do the same here as the supreme court did in Brown. Accordingly, we find that the admissions agreement, absent the offending language, is substantively conscionable, and the parties are bound by it, including its arbitration clause.
5. The arbitration clause is not void for lack of an arbitral forum.
¶ 27. Finally, Braddock asserts that arbitration cannot be compelled, as no suitable arbitral forum now exists. In support of this argument, Braddock points to a policy statement by the American Arbitration Association (AAA) made in June 2002. That statement indicates that the AAA no longer administers health-care arbitrations in cases where the parties have not executed a post-dispute agreement to arbitrate. In other words, the AAA will now only arbitrate health-care disputes where the parties are not contesting arbitration.
¶ 28. Covenant Health points to the fact that a related professional organization, the American Health Lawyers Association, made a similar policy statement, which they later amended by saying that they would agree to participate in arbitrations where no post-dispute agreement had been made so long as a court of competent jurisdiction had ordered the parties to arbitrate. The AAA has apparently not made a similar statement.
¶ 29. This Court does not need to speculate, however, on whether or not the AAA might agree to arbitrate this case even though no post-dispute agreement has been executed. The arbitration clause included in the admissions agreement provides for just the sort of eventuality the parties now face. The arbitration clause states that "[i]f the agreed method of selecting an Arbitrator(s) fails for any reason. . . the appropriate circuit court, on application of a party, shall appoint one Arbitrator to arbitrate the issue. An arbitrator so appointed shall have all the powers of the one named in this agreement." Therefore, even if the AAA refuses to arbitrate this dispute, the agreement between the parties contains an alternative method for selecting an arbitrator and administering the arbitration. Accordingly, we find that the arbitration clause does not fail for lack of an appropriate arbitral forum, and Braddock's argument on this issue is without merit.
¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY IS REVERSED AND REMANDED *744 FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.
KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION.
IRVING, J., Dissenting.
¶ 31. In this case, the majority relies upon Covenant Health Rehabilitation of Picayune, L.P. v. Brown, 949 So. 2d 732 (Miss.2007) to find that James Braddock's execution of the admission agreement, in his capacity as the health-care surrogate for his mother, legally bound her to an arbitration provision contained in the agreement. In Trinity Mission of Clinton, LLC d/b/a Clinton Health & Rehabilitation Center v. Barber, 988 So. 2d 910 (¶ 52) (Ct.App.2007) (Irving J., concurring in part dissenting in part) (cert. granted, 977 So. 2d 1144 (Miss.2008); appeal dismissed, 2008 Miss. LEXIS 185, at *1 (Miss. April 17, 2008)),[2] I agreed with the majority that Brown indeed states that a health-care surrogate has the authority to bind a patient to an arbitration provision contained in an admission agreement. However, I also explained that no such authority is granted to a surrogate under Mississippi's Uniform Health-Care Decisions Act.[3]Id. at (¶¶ 53-54). I further explained that the Brown court did not address the statutory definition of a surrogate and that because of that omission, I did not believe the Brown decision should be given the precedential value that otherwise would be due. Id. at (¶ 55). Finally, I stated my belief that "had our supreme court considered the statutory meaning of a health care decision, along with the concomitant power of a surrogate in light of that meaning, its decision in [Brown] may very well have been different." Id.
¶ 32. Therefore, for the reasons expressed in my dissent in Trinity Mission, I respectfully dissent, as the facts here are identical to the facts in Trinity Mission, with only the names of the surrogate and the patient being different.
NOTES
[1] See Brown, 949 So.2d at 737-41 (¶¶ 14-25) for an exhaustive discussion of why these particular aspects of the admissions agreement are unconscionable, including the language of the offending clauses. See also Vicksburg Partners, 911 So.2d at 525(¶ 48) and Pitts v. Watkins, 905 So. 2d 553, 555-58 (¶¶ 9-20) (Miss.2005) for discussions of the unconscionability of similar terms found in other admissions agreements.
[2] The general docket indicates that the appeal was dismissed pursuant to a motion to dismiss that was filed by the Appellees and joined by the Appellants.
[3] At one point in my dissent in Barber, I mistakenly referred to the Uniform Health-Care Decisions Act as the Health Care Surrogate Act. Barber, 2005-CA-02199-COA at (¶ 52). The Act is codified as Mississippi Code Annotated sections 41-41-201 through XX-XX-XXX (Rev.2005). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590473/ | 686 N.W.2d 457 (2004)
MYCOGEN SEEDS, Employer and Ace USA, Insurer in Novation for Reliance National Indemnity, Appellees,
v.
Larry SANDS, Appellant, and
Dow Chemical, Employer and CNA Insurance, a/k/a Continental Casualty Company.
No. 03-0331.
Supreme Court of Iowa.
August 11, 2004.
Rehearing Denied September 21, 2004.
*459 Dennis J. Mahr, Sioux City, for appellant.
Joseph A. Cacciatore of Dickinson, Mackaman, Tyler & Hagen, P.C., Des Moines, and Nathan R. McConkey of Huber, Book, Cortese, Happe & Lanz, P.L.C., Des Moines, for appellees.
LAVORATO, Chief Justice.
In this workers' compensation proceeding involving two successive work-related injuries, the employee, Larry Sands, appeals from a district court judgment affirming the interim commissioner's (commissioner) decision. Sands contends the commissioner and district court erred in applying Iowa's apportionment statute, refusing to abide by the parties' stipulation for the commencement date of permanent partial disability payments for the first injury, denying Sands his spouse's lost wages caused by her transportation of him for medical treatment, and failing to award him penalty benefits.
The employer, Mycogen Seeds, and its insurer on the first injury, ACE USA, cross-appeal to preserve their claim that Sands should not receive double disability payments in the event apportionment does not apply.
We affirm the district court judgment affirming the commissioner's decision on the issues concerning apportionment, the parties' stipulation, and penalty benefits. We reverse the district court's judgment affirming the commissioner's decision on the lost wages claim. We remand for further proceedings on this claim.
Because of the result we reach on the apportionment issue, we do not address the cross-appeal.
I. Background Facts.
At the time of the arbitration hearing, Sands was fifty-five years old. He is a high school graduate, but was a below average student. Recent testing showed that he had a full scale I.Q. of only seventy-four. His reading skills were at the seventh grade level.
Following his graduation from high school in 1964, Sands had held such jobs as an assembly line worker, a car jockey for a car dealership, a mechanic, and a farmer. These jobs required heavy lifting of up to fifty to seventy-five pounds at times.
In 1972 Sands began working for hybrid seed companies and continued in that work until 1997. He has worked for various companies during this time as a district sales manager. His job duties consisted of harvesting seed, working with dealers who sold seed, and delivering seed to dealers and customers. These duties required Sands to lift seed bags that weighed from twenty-eight pounds to sixty-four pounds. *460 He lifted 700 to 900 bags of seed per week and up to 300 bags a day during the busy season.
Sands was paid a base salary plus a bonus if he sold more seed in one year as compared to the previous year. His bonus was also based on early cash receipts, collections, and a low return of seed. From 1972 until 1997, there were only two years that Sands did not receive a bonus, and that was either because of weather conditions or a poor farm economy. The largest bonus he received in a year was $12,000.
On June 25, 1991, Sands sustained an on-the-job injury to his lower back. At the time he was lifting fifty-pound bags of seed. After receiving treatment for a suspected herniated disk, his doctor released him without restrictions and gave him no functional impairment rating. In 1994 Sands had a flare-up of low-back symptoms for which he received treatment. He eventually recovered.
On May 16, 1995, Sands was working for Keltgen Seeds. On that date, Sands again sustained an on-the-job injury while picking up unused seed from dealers. In picking up the seed bags, he felt pain in his neck and right shoulder. He sought medical attention for the injury from Dr. Wayne Meylor, D.C., who noted that Sands' primary complaints were in his lower neck and shoulder. Several weeks later, Sands complained to Dr. Meylor of low back and hip pain.
Dr. Meylor referred Sands to Dr. Raymond Sherman, M.D. for evaluation. Dr. Sherman saw Sands on September 3, 1996, following which the doctor recommended conservative treatment for the right shoulder symptoms. Dr. Sherman eventually referred Sands to Dr. Barrie Purves, M.D. for evaluation of Sands' upper back and neck pain complaints.
Dr. Purves saw Sands on April 22, 1997. At that time, Sands told Dr. Purves that he had an acute onset of pain in his upper back into his neck as a result of the May 1995 incident. Sands also informed the doctor of his 1991 low-back injury. Following his examination of Sands, Dr. Purves opined that Sands had severe degenerative disk disease at the C5-6 and C6-7 levels. Because Sands had two years of conservative treatment, the doctor thought Sands was a reasonable candidate for a two-level disk fusion. That operation was done on April 28, 1997. Healing period benefits were paid from April 28, 1997 through May 27, 1997, at which time they were terminated.
Following the operation, Dr. Purves allowed Sands to return to light duty work on July 15, 1997, and imposed a maximum lifting restriction of thirty-five pounds.
On returning to work on July 16, 1997, Sands again suffered an on-the-job injury. At the time, Sands was still wearing a neck brace from his surgery. The injury occurred when he ducked under a fence to get into a field to look at seed that his employer was raising. While attempting to duck under the fence, Sands fell backwards onto the ground and suffered a low-back injury. At the time of this injury, Sands was working for a different company, Mycogen Seeds, which was a successor in interest to Keltgen Seeds.
Dr. Meylor saw Sands on July 16, 1997, for this latest injury. At the time, Sands was complaining of right hip and leg pain. Dr. Purves also saw Sands after this latest injury. On November 25, 1997, Dr. Purves suspected a problem with the L5-S1 disk and scheduled an MRI.
In the meantime, Dr. Purves sent Sands to Dr. Sherman for additional evaluation of Sands' right shoulder complaints. Dr. Sherman ordered an MRI, which showed a partial thickness tear of Sands' right rotator *461 cuff. Injections into the shoulder only provided temporary relief.
The MRI for the low-back injury showed a fragment of a sequestrated disk at L4-5. In December 1997 Dr. Purves opined that this was a recurrence of the back problem Sands had suffered in 1991 and that the current low back and right leg symptoms started when Sands was crawling under the fence in July 1997. Dr. Purves operated on Sands' lumbar spine on December 15, 1997, and found that the sequestrated disk had moved away from the disk space and was free of the spinal column. The back operation was done before the shoulder surgery because of fear that Sands might sustain further damage to his back with movement on the operating table for surgery to his shoulder.
Following the operation, Dr. Purves continued to treat Sands but Sands' right leg pain was not significantly reduced. Eventually, Dr. Purves referred Sands to a pain clinic. The pain clinic eventually referred Sands to Dr. Patrick Bowman, M.D. to try dorsal column stimulation. The procedure resulted in no significant improvement. Dr. Bowman concluded the only treatment option available to treat the pain was the installation of an intrathecal morphine pump. On February 26, 1999, Dr. Lyal Leibrock, M.D. installed the pump, which he indicated would remain installed for permanent pain control. The pump was installed because of "failed back surgery syndrome." Dr. Leibrock indicated that Sands was at maximum medical improvement relative to the lumbar spine.
On May 20, 1999, Dr. Sherman operated on Sands' right shoulder to repair Sands' right rotator cuff tear, as well as performing an acromioclavicular joint resection and glenohumeral ligament repair. Dr. Sherman put Sands at maximum medical improvement on December 6, 1999, and released him with lifting restrictions. Dr. Sherman determined that Sands had sustained a fifteen percent, whole person impairment as a result of the shoulder injury. He also determined that the surgery was necessary because of the May 16, 1995 incident.
Dr. Meylor opined that Sands' neck and shoulder injury resulted from the May 16, 1995 incident and that Sands had aggravated a preexisting low back condition as a result of the July 16, 1997 incident.
Dr. Purves stated that the July 16, 1997 incident could have aggravated the preexisting condition relating to the herniated disk and led to the need for surgery.
Dr. Meylor asked Dr. Mark Kruse, D.C. to do an impairment evaluation of Sands. Based on that evaluation, Dr. Kruse's opinion was that Sands' low-back surgery was made necessary because of the July 16, 1997 incident and that the injury resulting from this incident caused an additional impairment to Sands' lumbar spine.
Sands was also seen by Dr. Dean Wampler, M.D. for an evaluation of his condition. After reviewing Sands' records, Dr. Wampler opined that Sands' lumbar spine and right leg condition were not related to the July 16, 1997 incident.
Sands' wife, Patricia, drove to several of his medical appointments when he was unable to drive himself. The parties' hometown of Le Mars has no taxi service. Patricia also needed to attend some of the appointments to learn how to catheterize her husband and help him with pain management. She lost wages of $1274.88 while attending these appointments.
Sands began receiving social security disability benefits effective December 12, 1997, and has not worked since then. On August 12, 1998, Sands' employer notified him that it was eliminating his district as well as his current position.
*462 II. Proceedings.
On May 17, 1999, Sands filed a petition concerning his May 16, 1995 injury before the Iowa workers' compensation commissioner against Mycogen Seeds and Reliance National Indemnity, which is now ACE USA in novation for Reliance National Indemnity. On the same date, Sands also filed a petition concerning his July 16, 1997 injury before the commissioner against Mycogen and Continental Casualty Company. ACE provided Sands benefits for the May 16, 1995 injury, and Continental Casualty provided Sands benefits for his July 16, 1997 injury.
On November 19, 1998, Continental Casualty filed a petition for determination of liability and reimbursement of benefits paid pursuant to Iowa Code section 85.21 (1997) against ACE, alleging that ACE was liable for benefits paid by Continental Casualty for Sands' July 16, 1997 injury.
Following a hearing in which all of the above-cited facts were before a deputy commissioner, the deputy determined that, with respect to the May 16, 1995 injury, Sands had sustained a permanent disability and had sustained a forty percent industrial disability as a result of this injury. (There was no issue as to whether the injury arose out of and in the course of employment.)
The deputy also determined that permanent partial disability payments should commence December 7, 1999, in the amount of $609.07 per week. Additionally, the deputy awarded Sands healing-period benefits from April 28, 1997, through May 27, 1997, and from May 20, 1999, to December 6, 1999. The deputy determined that ACE was responsible for these payments and ordered ACE to reimburse Continental Casualty for any payments it made.
With respect to the injury sustained on July 16, 1997, the deputy found as follows. Sands proved he sustained an injury that arose out of and in the course of his employment. This injury has resulted in Sands being permanently and totally disabled. His permanent total disability benefits, in the amount of $597.12 per week, commence December 11, 1997, and continue as long as he remains permanently and totally disabled. Because he is receiving permanent total disability benefits, there are no healing period benefits.
The deputy awarded as medical expenses Patricia's lost wages as a result of her need to drive her husband to and from medical appointments, ordered the employer and its insurer to pay unpaid medical expenses, and ordered Continental Casualty to reimburse ACE for benefits ACE paid on this claim. Finally, the deputy denied Sands penalty benefits he sought against Mycogen and ACE due to underpayment of benefits based on an incorrect rate. The deputy denied these benefits because there was a fairly debatable question whether Sands' bonus income was regular. (The deputy however found that the bonus income should be included for purposes of determining the rate of compensation.)
All parties appealed to the workers' compensation commissioner. In his decision, the commissioner affirmed all of the deputy's findings and conclusions except as to the following matters. The deputy awarded healing period benefits from May 20, 1999 to December 6, 1999. The commissioner found that Sands was not entitled to such an award because he was then totally disabled by the second injury. See Iowa Code § 85.34(3) (2001).
Mycogen and ACE argued that they should not have to pay the 200 weeks of permanent partial disability based on Sands' forty percent industrial disability. *463 They asserted that a double recovery would result because the deputy also found that Sands suffered a 100% industrial disability, which when combined with the 40% industrial disability allowed Sands a total of 140% industrial disability.
The commissioner agreed with Mycogen and ACE, concluding that the deputy's award created an overlap of disability benefits. Applying Iowa Code section 85.36(9)(c) (apportionment statute), the commissioner apportioned the disability benefits in such a manner as to eliminate the overlap, resulting in benefits for a 100% industrial disability rather than 140%.
In applying section 85.36(9)(c), the commissioner also disagreed with the deputy's finding that the commencement date for any permanent partial disability for the May 16, 1995 injury would be December 7, 1999 (the date of maximum medical improvement) based on the parties' stipulation. Instead, the commissioner determined the permanent partial disability commenced on May 28, 1997, the date that healing period benefits were terminated. In making this determination, the commissioner ignored the parties' stipulation and the deputy's finding based on this stipulation.
Finally, the commissioner, contrary to the deputy's decision, denied Sands' request for reimbursement for his wife's lost wages when she was needed to transport Sands to medical appointments and learn nursing care for him.
Sands filed a petition for judicial review in the district court. Mycogen and ACE filed their own petition for judicial review to preserve their argument that Sands should not receive double weekly benefits for permanent partial and total disability in the event apportionment pursuant to Iowa Code section 85.36(9)(c) did not apply. The district court consolidated the petitions and, following a hearing, affirmed the decision of the commissioner.
Sands appealed and Mycogen and ACE cross-appealed.
III. Issues.
On appeal, Sands raises the following issues:
(1) whether the commissioner erred in not applying the stipulated date for commencement of permanent partial disability for the May 16, 1995 injury;
(2) whether the commissioner erred by apportioning the disability benefits pursuant to Iowa Code section 85.36(9)(c);
(3) whether the commissioner erred in denying reimbursement of Patricia Sands' lost wages;
(4) whether the commissioner erred in denying Sands penalty benefits because Mycogen and ACE miscalculated the rate for the May 16, 1995 injury and underpaid those benefits.
Mycogen and ACE state that their cross-appeal was filed to preserve the question whether Sands is entitled to receive 200 weeks of double benefits in the event this court finds the apportionment provision of section 85.36(9)(c) does not apply.
IV. Scope of Review.
Iowa Code chapter 17A governs judicial review of the decisions of the workers' compensation commissioner. Iowa Code § 86.26. Because the commissioner rendered his decision on May 31, 2002, the 1998 amendments to Iowa Code chapter 17A apply. See Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 498 (Iowa 2003).
In exercising its judicial review power, the district court acts in an appellate capacity. Grundmeyer v. Weyerhaeuser *464 Co., 649 N.W.2d 744, 748 (Iowa 2002). In reviewing the district court's decision, we apply the standards of chapter 17A to determine whether the conclusions we reach are the same as those of the district court. Id. If they are the same, we affirm; otherwise we reverse. Id.
In this case, the issues involve the agency's interpretation of several statutes, its factual determinations, and its application of law to the facts. As to an agency's interpretation of the law, the court shall reverse, modify, or grant other appropriate relief from agency action if it determines that substantial rights of the person seeking judicial relief have been prejudiced because the agency action is any of the following:
Based upon an erroneous interpretation of a provision of law whose interpretation has not clearly been vested by a provision of law in the discretion of the agency.
. . . .
Based upon an irrational, illogical, or wholly unjustifiable interpretation of a provision of law whose interpretation has clearly been vested by a provision of law in the discretion of the agency.
Iowa Code § 17A.19(10)(c), (l).
Here, the commissioner's decision regarding apportionment of disability benefits, reimbursement of lost wages, and penalty benefits is based upon statutory interpretation. We see nothing in Iowa Code chapter 85 that convinces us that the legislature has delegated any special powers to the agency regarding statutory interpretation in these areas. So such interpretation has not "clearly been vested by a provision of law in the discretion of the agency." Iowa Code § 17A.19(10)(c). We therefore need not give the agency any deference regarding its interpretation and are free to substitute our judgment de novo for the agency's interpretation. See Iowa Code § 17A.19(10)(c), (11)(b); see also Mosher v. Dep't of Inspections & Appeals, 671 N.W.2d 501, 508-10 (Iowa 2003); Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act, Report on Selected Provisions to Iowa State Bar Association and Iowa State Government 63 (1998).
As to the agency's factual determinations, the court shall also reverse, modify, or grant other appropriate relief from agency action if it determines that substantial rights of the person seeking judicial relief have been prejudiced because the agency action is
[b]ased upon a determination of fact clearly vested by a provision of law in the discretion of the agency that is not supported by substantial evidence in the record before the court when that record is viewed as a whole.
Iowa Code § 17A.19(10)(f).
"Substantial evidence" is defined as
the quantity and quality of evidence that would be deemed sufficient by a neutral, detached, and reasonable person, to establish the fact at issue when the consequences resulting from the establishment of that fact are understood to be serious and of great importance.
Iowa Code § 17A.19(10)(f)(1).
The phrase "when that record is viewed as a whole" in section 17A.19(10)(f) means
that the adequacy of the evidence in the record before the court to support a particular finding of fact must be judged in light of all the relevant evidence in the record cited by any party that detracts from that finding as well as all of the relevant evidence in the record cited by any party that supports it....
Iowa Code § 17A.19(10)(f)(3).
As to the agency's factual determinations regarding apportionment, allowing *465 reimbursement of lost wages, and penalty benefits, such determinations "are clearly vested by a provision of law in the discretion of the agency." Iowa Code § 17A.19(10)(f). Workers' compensation cases, such as the one here, are contested cases in which the agency is vested by Iowa Code chapter 85 with the responsibility of determining an employee's right to benefits. Because the agency is charged with such responsibility, the agency must necessarily make factual findings to determine that right. See Iowa Code § 85.21; Zomer v. West River Farms, Inc., 666 N.W.2d 130, 132-33 (Iowa 2003). We are therefore bound by the agency's findings of fact if supported by substantial evidence. See Mosher, 671 N.W.2d at 508. We can reverse the agency action regarding its findings of fact only if they are not supported by substantial evidence. Id. By applying the substantial evidence requirement, we are giving "appropriate deference to the view of the agency with respect to particular matters that have been vested by a provision of law in the discretion of the agency." Iowa Code § 17A.19(11)(c).
Finally, given that factual determinations in workers' compensation cases are "clearly vested by a provision of law in the discretion of the agency," it follows that application of the law to those facts is likewise "vested by a provision of law in the discretion of the agency." Iowa Code § 17A.19(10)(f). In order to determine an employee's right to benefits, which is the agency's responsibility, the agency, out of necessity, must apply the law to the facts. An agency's application of the law to the facts can only be reversed if we determine such an application was "irrational, illogical, or wholly unjustifiable." Iowa Code § 17A.19(10)(m). Applying this "irrational, illogical, or wholly unjustifiable" standard, we are likewise giving "appropriate deference to the view of the agency with respect to particular matters that have been vested by a provision of law in the discretion of the agency." Iowa Code § 17A.19(11)(c).
With these principles in mind, we consider the issues before us.
V. Analysis.
A. Apportionment and the parties' stipulation. Our rule on apportionment of benefits limits apportionment to "`those situations where a prior injury or illness, unrelated to the employment, independently produces some ascertainable portion of the ultimate industrial disability which exists following the employment-related aggravation.'" Celotex Corp. v. Auten, 541 N.W.2d 252, 253 (Iowa 1995) (quoting Varied Enters., Inc. v. Sumner, 353 N.W.2d 407, 411 (Iowa 1984)) (emphasis added). Generally, the apportionment rule does not apply to work-related conditions or injuries. Second Injury Fund v. Nelson, 544 N.W.2d 258, 265 (Iowa 1995).
In Celotex, we also recognized the full-responsibility rule: "Apart from statute, in a situation of two successive work-related injuries, `the employer is generally held liable for the entire disability resulting from the combination of the prior disability and the present injury.'" 541 N.W.2d at 254 (quoting 2 Arthur Larson, The Law of Workmen's Compensation § 59.00, at 10-492.329 (1994)). "This rule is actually another way of describing our general rule governing apportionment of disability in workers' compensation proceedings. Absent a statute, we generally do not apportion the disability of two successive work-related injuries." Excel Corp. v. Smithart, 654 N.W.2d 891, 897 (Iowa 2002) (citing Celotex, 541 N.W.2d at 254).
Iowa Code section 85.36(9)(c) is the only statutory provision dealing with apportionment of benefits. It provides:
*466 In computing the compensation to be paid to any employee who, before the accident for which the employee claims compensation, was disabled and drawing compensation under the provisions of this chapter, the compensation for each subsequent injury shall be apportioned according to the proportion of disability caused by the respective injuries which the employee shall have suffered.
Iowa Code § 85.36(9)(c).
The intent of this statute is to prevent overlapping or stacking of disabilities. Excel, 654 N.W.2d at 899-900. For example, in this case we have a 40% permanent partial disability and a 100% permanent disability. Is Sands entitled to 140% disability as the deputy found or just 100% as the commissioner found?
In applying the statute, we employ a two-step analysis. We must first determine whether the statute applies. If we determine the statute applies, we must then decide how to apportion the compensation for the disabilities.
In determining whether the statute applies, we focus our attention on the language "was disabled and drawing compensation under the provisions of this chapter." Iowa Code § 85.36(9)(c). The statute does not define "disabled," so we give it its ordinary meaning in the employment context: incapacity to work because of injury. See, e.g., Iowa Code § 85.27 para. 7 ("If, after the third day of incapacity to work following the date of sustaining a compensable injury which does not result in permanent partial disability. . . ."). "[C]ompensation under the provisions of this chapter" in Iowa Code section 85.36(9)(c) includes temporary total and temporary partial disability benefits under Iowa Code section 85.33, permanent partial disability and healing period benefits under Iowa Code section 85.34(1) and (2), and permanent total disability benefits under Iowa Code section 85.34(3).
Thus, if an employee is incapacitated to work because of a compensable injury and is receiving temporary total disability, temporary partial disability, permanent partial disability, healing period, or permanent total disability benefits and again suffers a compensable injury, the statute applies. The statute applies even though the employee is not receiving but is entitled to receive such benefits at the time of the second injury. That is because benefits are retroactive to the date they are due. See Excel, 654 N.W.2d at 899; see also Iowa Code §§ 85.32 ("Except as to injuries resulting in permanent partial disability, compensation shall begin on the fourth day of disability after the injury. If the period of incapacity extends beyond the fourteenth day following the date of injury, then the compensation due during the third week shall be increased by adding thereto an amount equal to three days of compensation."), .34(1) (healing period benefits begin on the first day of disability after the injury and end when employee returns to work, or it is medically indicated that significant improvement from the injury is not anticipated, or until employee is medically capable of returning to employment substantially similar to employment employee was engaged in at the time of injury, whichever occurs first), .34(2) (compensation for permanent partial disability begins at termination of healing period benefits).
As mentioned, once a determination is made that the statute applies, the second step in the analysis requires a determination as to how the compensation for the disabilities is to be apportioned. This second step of the analysis focuses on the following language: "the compensation for each subsequent injury shall be apportioned according to the proportion of disability *467 caused by the respective injuries which the employee shall have suffered." Iowa Code § 85.36(9)(c). "Disability" in this language includes temporary total and temporary partial disabilities, permanent partial disability, and permanent disability. Any combination of these disabilities would require apportionment.
With these principles in mind, we turn to that portion of the commissioner's decision in which he sets out his reasoning as to why the apportionment statute applies:
The 1997 injury occurred at a time when claimant was permanently partially disabled from the 1995 injury and entitled to be receiving permanent partial disability compensation from the 1995 injury under the provisions of section 85.34(2)(u). The healing period ended May 27, 1997, and under section 85.34(2) permanent partial disability compensation was due commencing May 28, 1997. He was not actually being paid compensation for the disability at that time, however, because the employer was not complying with the law. Statutes are to be construed based upon the assumption that other pertinent laws are being followed. Accordingly, applicability of section 85.36(9)(c) must be determined as if compensation for permanent partial disability compensation from the 1995 injury were being paid when due, namely at the time the 1997 injury occurred. The fact that it was not actually being paid is a fortuitous event that should have no legal impact on the ultimate outcome.
We agree with this reasoning, and therefore agree the apportionment statute applied. As the commissioner correctly points out, Sands was entitled to permanent partial disability when the initial healing period ended on May 27, 1997. And even though Sands was not receiving such compensation at the time, he is considered to have been receiving such compensation because benefits are retroactive to the date he was injured. See Excel, 654 N.W.2d at 899. Therefore, when Sands was injured a second time on July 16, 1997, he was "receiving" compensation. Even if the deputy was correct that there was an additional healing period in 1999 for the first injury because of the surgery to the shoulder, that fact does not change the employer's obligation to pay permanent partial disability in the interim.
The parties stipulated that the permanent partial disability commenced on December 7, 1999. The commissioner correctly disregarded this stipulation because the statute requires permanent partial disability to begin "at the termination of the healing period." See Iowa Code § 85.34(2). The deputy and the commissioner found that the initial healing period ended on May 27, 1997. Therefore, by law, permanent partial disability commenced on May 28, 1997.
That leaves for our consideration the second step in the analysis how to apportion the compensation for the disabilities. Sands was entitled to 200 weeks of permanent partial disability beginning May 27, 1997. He was also entitled to permanent total disability commencing December 11, 1997. Therefore on December 11, 1997, Sands was entitled to both permanent partial disability and permanent total disability, resulting in overlapping disabilities. We note that Sands did not challenge the commissioner's method of apportionment. Rather, he only challenged the commissioner's determination that the apportionment statute applied. Any attempt to attack the commissioner's method of apportionment is now too late. See Gardin v. Long Beach Mortgage Co., 661 N.W.2d 193, 196 (Iowa 2003) (refusing to consider an issue raised for the first time on appeal); Iowa R. Civ. P. 1.1603(3).
*468 For all these reasons, we conclude the commissioner correctly determined the apportionment statute applied. Accordingly, we conclude the district court correctly affirmed the commissioner's decision on this issue. Because of the conclusion we reach on the apportionment issue, we do not address the cross-appeal.
B. Spouse's lost wages. On this issue the commissioner stated:
Although subsection 7 of section 85.27 provides for reimbursement of lost wages, the section speaks in terms of wages lost by the employee. There is no provision for wages lost by another person. Because of this, there is no statutory authority for this agency to award lost wages to claimant's spouse for her time lost from work driving claimant to his medical appointments.
We agree with Sands that, contrary to the commissioner's determination, there indeed is statutory authority for payment of the wages in question. The first paragraph of Iowa Code section 85.27 provides:
The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services.
Iowa Code § 85.27 para. 1.
Although there is no Iowa case authority on point, we find persuasive a Florida case that decided the precise issue under a similar statute. See Mills v. Walden-Sparkman, Inc., 493 So. 2d 64 (Fla.Dist.Ct. App.1986). The Florida statute provided:
"An injured employee is entitled, as a part of his remedial treatment, care, and attendance, to reasonable actual cost of transportation to and from the doctor's office, hospital, or other places of treatment by the most economical means of transportation available and suitable in the individual case."
Id. at 65 (quoting Fla. Stat. § 440.13(4) (1982)).
In Mills, the claimant's husband drove her to her medical appointments, and she sought reimbursement for mileage and her husband's lost wages. Id. The commissioner denied the entire claim. Id. The court concluded the statute "clearly entitles a claimant to reimbursement of `reasonable actual cost of transportation'" and remanded the case so transportation costs could be determined under the following conditions. Id. The claimant has to prove the "mode of transportation taken was reasonable and economical under the circumstances, taking into consideration the medical condition of the claimant." Id. Additionally, the claimant must produce evidence regarding the cost of the chosen manner of travel compared to the cost of "other reasonably available means of transportation." Id. At this point, the burden shifts to "the employer and carrier to supply evidence that a more reasonable and economical transportation method exists, of which claimant could have been aware, but chose not to take advantage of." Id. at 65-66. The commissioner then weighs the evidence presented and determines how much the claimant should be reimbursed. Id. at 66.
The court summarized its ruling as follows:
Therefore, lost wages can qualify as a reimbursable cost but only if the manner of travel was the most economical reasonable way to be transported, the amount was reasonable as to the quality and quantity of services rendered, and *469 the wages were actually lost by the person providing the transportation.
Id.
We think this interpretation and procedure are reasonable for our purposes, especially since we construe the workers' compensation statute in favor of the employee. Stone Container Corp. v. Castle, 657 N.W.2d 485, 489, 492 (Iowa 2003) (concluding a laptop computer qualified as reasonable medical appliance for a catastrophically injured employee for whom the computer provided "access to the outside world"). Accordingly, we hold that under section 85.27, an employee may be reimbursed for wages lost by the employee's spouse because of the spouse's absence from work when providing the employee with transportation to obtain authorized medical treatment. The lost wages are allowed under the language "reasonably necessary transportation expenses incurred for such services" in paragraph 1 of section 85.27. Because the commissioner incorrectly interpreted section 85.27, we must reverse the district court judgment affirming the commissioner's decision on this issue. Our adoption of the procedure set out in Mills requires us to remand the case to allow the parties to present the necessary evidence called for by the procedure and allow the commissioner to rule on that evidence.
C. Penalty benefits. Sands contends he is entitled to penalty benefits against Mycogen and ACE concerning his first injury because he was underpaid benefits based on an incorrect rate due to his bonuses not being included in his wages.
Iowa Code section 86.13 dealing with penalty benefits provides:
If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the workers' compensation commissioner shall award benefits in addition to those benefits payable under this chapter, or chapter 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied.
Iowa Code § 86.13 para. 4.
Pursuant to this statute, an employee "is entitled to penalty benefits if there has been a delay in payment unless the employer proves a reasonable cause or excuse." Christensen v. Snap-on Tools Corp., 554 N.W.2d 254, 260 (Iowa 1996).
A reasonable cause or excuse exists if either (1) the delay was necessary for the insurer to investigate the claim or (2) the employer had a reasonable basis to contest the employee's entitlement to benefits. A "reasonable basis" for denial of the claim exists if the claim is "fairly debatable."
Id. Whether the issue was fairly debatable turns on whether there was a factual dispute that, if resolved in favor of the employer and its insurer, would have supported their denial of compensability. Gilbert v. USF Holland, Inc., 637 N.W.2d 194, 199 (Iowa 2001).
Penalty benefits were consistently denied by the deputy, the commissioner, and the district court on the ground that the claim was fairly debatable. Mycogen and ACE contend here, as they did in proceedings before all three tribunals, that they indeed had a reasonable excuse in not including the bonuses in calculating Sands' weekly compensation rate. That excuse, they argue, is that Sands' bonuses were irregular.
Iowa Code section 85.61(3) provides that "irregular bonuses" are not to be included in the gross earnings for purposes of calculating a worker's weekly compensation rate. The commissioner ruled as follows on this issue:
*470 [Mycogen and ACE] basically had two arguments as to why the bonuses were not regular. First, that they were not paid every year claimant worked for the employer. Second, that the bonuses were irregular because they varied in amount. Although neither of these arguments has prevailed on appeal, they were legitimate arguments [Mycogen and ACE] were entitled to make and therefore the inclusion of the bonus amounts in claimant's rate was fairly debatable. Benefits were voluntarily paid, but at a rate that did not include the disputed bonuses. It was reasonable to rely on Noel v. Rolscreen [Co.], 475 N.W.2d 666 (Iowa Ct.App.1991). A penalty is not appropriate.
We agree with the commissioner's determination. In Noel, the court of appeals held that irregular bonuses are not considered as part of an employee's gross earnings as defined in Iowa Code section 85.36 (1989). 475 N.W.2d at 668. The court rejected the employee's argument that Iowa Code section 85.61(12), predecessor to Iowa Code section 85.61(3), supported her position, concluding that the bonus in question was not a regular bonus because it varied in amount, was dependent on several conditions for amount, and was not fixed in terms of entitlement or amount until late in the fiscal year. Id. at 667-68. The bonuses here varied in amount, were dependent on several conditions for amount, and were not fixed in terms of entitlement or amount until late in the year.
Accordingly, there was substantial evidence to support the commissioner's determination. In reaching the same conclusion, the district court correctly affirmed the commissioner's decision on this issue.
VI. Disposition.
In sum, we conclude the commissioner correctly determined the apportionment statute applied and that there was substantial evidence to support his decision regarding penalty benefits. We reject Sands' contention that the commissioner erroneously rejected the parties' stipulation. Accordingly, we affirm the district court judgment affirming the commissioner's decision on these issues.
We conclude the commissioner erroneously concluded that there was no statutory authority for the lost wages claim. We therefore reverse the district court judgment affirming the commissioner's decision on this issue. We remand the case to the district court for remand to the commissioner to allow further proceeding as spelled out in this opinion regarding the lost wages claim.
Because of the result we reach on the apportionment issue, we do not address the cross-appeal.
We have carefully considered all of the issues raised. Those we have not addressed either lack merit or were not properly preserved.
AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590493/ | 972 So. 2d 1165 (2008)
Leander WINFORD
v.
DEPARTMENT OF POLICE and All Other Consolidated Cases.
No. 2007-C-2181.
Supreme Court of Louisiana.
January 11, 2008.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590494/ | 14 So. 3d 224 (2009)
ADVISORY OPINION TO THE ATTORNEY GENERAL RE REFERENDA REQUIRED FOR ADOPTION AND AMENDMENT OF LOCAL GOVERNMENT COMPREHENSIVE LAND USE PLANS.
No. SC06-521.
Supreme Court of Florida.
July 9, 2009.
*225 Bill McCollum, Attorney General, Louis F. Hubener, Solicitor General and Leah L. Marino, Deputy Solicitor General, Tallahassee, FL, for Petitioner.
Ross Stafford Burnaman, Esquire, on behalf of Florida Hometown Democracy, Inc., Tallahassee, FL, as Sponsor.
PER CURIAM.
The Attorney General of Florida has requested this Court's opinion as to the validity of a financial impact statement that relates to an initiative petition circulated pursuant to article XI, section 3 of the Florida Constitution. We have jurisdiction. See art. IV, § 10; art. V, § 3(b)(10), Fla. Const.
In 2006, this Court approved for placement on the ballot a proposed constitutional amendment relating to amending comprehensive land use plans. See Advisory Op. to Att'y Gen. re Referenda Required for Adoption & Amendment of Local Gov't Comprehensive Land Use Plans, 938 So. 2d 501 (Fla.2006) (Land Use Plans I). This proposed amendment would require local governments to submit a new comprehensive land use plan, or an amendment to an existing plan, to a vote by referendum prior to adoption.
While this Court considered the validity of the petition, the Attorney General also requested that we review the corresponding financial impact statement to evaluate whether it complied with section 100.371, Florida Statutes (2006). In our initial decision, we concluded that we had jurisdiction to review and, if necessary, reject proposed financial impact statements. See Advisory Op. to Att'y Gen. re Referenda Required for Adoption & Amendment of Local Gov't Comprehensive Land Use Plans, 963 So. 2d 210, 213-14 (Fla.2007) (Land Use Plans II). We determined that the statement in its then-current form did not meet the statutory requirements and remanded the statement to the Financial Impact Estimating Conference (FIEC) to be redrafted. See id. at 214-15.
After the statement was revised, the Attorney General requested that we again review the revised financial impact statement to evaluate whether it complied with section 100.371, Florida Statutes (2007). For a second time, we rejected and remanded the statement to the FIEC, holding that this second statement "suffer[ed] from the same flaw which led us to hold that the impact statement in Land Use Plans II did not comply with the requirements of section 100.371." In re Advisory Op. to Att'y Gen. re Referenda Required for Adoption & Amendment of Local Gov't Comprehensive Land Use Plans, 992 So. 2d 190, 192 (Fla.2008) (Land Use Plans III).
On October 14, 2008, the Attorney General filed the second revised financial impact statement with this Court and requested *226 an opinion with regard to whether the second revised statement complies with section 100.371, Florida Statutes (2008). The statement provides:
The amendment's impact on local government expenditures cannot be estimated precisely. Local governments will incur additional costs due to the requirement to conduct referenda in order to adopt comprehensive plans or amendments thereto. The amount of such costs depends upon the frequency, timing, and method of the referenda, and includes the costs of ballot preparation, election administration, and associated expenses. The impact on state government expenditures will be insignificant.
The proponent of the amendment now asserts that the second revised financial impact statement is proper. For the reasons addressed below, we hold that this statement complies with section 100.371.
ANALYSIS
This Court's review is narrow: the Court is to determine only whether the statement complies with the requirements provided in the Florida Constitution and the statutes. Article XI, section 5, Florida Constitution, addresses financial impact statements and provides in relevant part:
(c) The legislature shall provide by general law, prior to the holding of an election pursuant to this section, for the provision of a statement to the public regarding the probable financial impact of any amendment proposed by initiative pursuant to section 3.
(Emphasis supplied.) Pursuant to article XI, section 5(c), the Legislature set forth the following provisions, addressing the financial impact statement:
(5)(a) Within 45 days after receipt of a proposed revision or amendment to the State Constitution by initiative petition from the Secretary of State, the Financial Impact Estimating Conference shall complete an analysis and financial impact statement to be placed on the ballot of the estimated increase or decrease in any revenues or costs to state or local governments resulting from the proposed initiative. The Financial Impact Estimating Conference shall submit the financial impact statement to the Attorney General and Secretary of State.
....
(c)....
2. Principals of the Financial Impact Estimating Conference shall reach a consensus or majority concurrence on a clear and unambiguous financial impact statement, no more than 75 words in length, and immediately submit the statement to the Attorney General. Nothing in this subsection prohibits the Financial Impact Estimating Conference from setting forth a range of potential impacts in the financial impact statement. Any financial impact statement that a court finds not to be in accordance with this section shall be remanded solely to the Financial Impact Estimating Conference for redrafting. The Financial Impact Estimating Conference shall redraft the financial impact statement within 15 days.
§ 100.371(5), Fla. Stat. (2008).
Based on these statutory requirements, in reviewing a financial impact statement, the Court has "limited itself only to address whether the statement is clear, unambiguous, consists of no more than seventy-five words, and is limited to address the estimated increase or decrease in any revenues or costs to the state or local governments." Land Use Plans II, 963 So.2d at 214. In addressing whether the financial impact statement is clear and unambiguous, we review whether the statement of potential impact is misleading, vague, or confusing.
*227 Here, the initial financial impact statement provided as follows:
The direct impact of this amendment on local government expenditures cannot be determined precisely. Over each two year election cycle, local governments cumulatively will incur significant costs (millions of dollars statewide). Costs will vary depending on the processes employed by cities and counties in obtaining approval for plan amendments. The direct impact on state government expenditures will be insignificant. There will be no direct impact on government revenues.
Land Use Plans II, 963 So.2d at 214. We found the second sentence was defective, explaining:
Specifically, [the sentence] states that "[o]ver each two year election cycle, local governments cumulatively will incur significant costs (millions of dollars statewide)." This statement, however, assumes that numerous local governments will have out-of-cycle changes to their respective comprehensive land use plans, necessitating special elections. Although the Financial Impact Estimating Commission is speculating that local government will be holding special out-of-cycle elections, the statement itself does not indicate that the estimated millions of dollars is dependant upon how many times counties and cities throughout the State will attempt out-of-cycle amendments to their comprehensive land use plans. In fact, the apparent purpose of the proposed amendment is to limit the amount of revisions to a county's or a city's comprehensive land use plan. The Commission's assumption assumes that the proposed amendment will not have its intended effect.
Id. at 214-15.
After remand, the FIEC revised the financial impact statement to provide:
The direct impact of this amendment on local government expenditures cannot be determined precisely. It is probable that local governments will incur significant costs (millions of dollars statewide) with actual costs dependent upon the frequency and method of referenda. Costs will include those for ballot preparation and additional administrative costs and expenses for the referenda. The direct impact on state government expenditures will be insignificant. There will be no direct impact on government revenues.
Land Use Plans III, 992 So.2d at 192. We found this revised statement to be defective for the same reasons. We first held that the statement was problematic because the statement gave "the misleading impression that the proposed amendment will not have its intended effect" and that it assumed that special elections would be an inevitable result of this amendment. Id. at 192-93. Second, the financial impact statement was misleading because it concluded "that local governments will incur `millions of dollars' statewide if the amendment is approved" and that this estimate was based upon "purely speculative assumptions," including assumptions as to how often local governments will adopt or amend their comprehensive land use plans, whether the amendment or adoption of the plan will require a special election, and the costs and expenses of any election. Id. at 193. On a related issue, we found that the vague reference to "significant costs" and "millions of dollars" was problematic because such terminology could lead citizens to "believe that the implementation of the amendment would automatically cost hundreds of millions of dollars." Id.
The current financial impact statement does not suffer from the same defects *228 as the prior two versions. First, the statement no longer implies that the proposed amendment will automatically require any out-of-cycle elections; thus, there is no longer any concern that the financial impact statement will lead voters to believe that the proposed constitutional amendment will not have its intended effect of reducing the number of plan amendments. Second, the statement eliminates the prior vague terms that could be interpreted as requiring the expenditure of millions of dollars if the financial impact statement is approved. While the financial impact statement clearly notes that local governments will incur additional costs to conduct referenda, it simply lists those items that will clearly be required by the plan amendment, including the costs of preparing and printing the ballot and relating to election administration and associated expenses. The financial impact statement no longer speculates on these expenses, acknowledging that the precise cost is highly variable and listing the factors upon which the costs depend. Because the statement is "clear, unambiguous, consists of no more than seventy-five words, and is limited to address the estimated increase or decrease in any revenues or costs to the state or local governments," Land Use Plans II, 963 So.2d at 214, we find that the financial impact statement as currently drafted complies with the mandates of Section 100.371, Florida Statutes (2008).
It is so ordered.
QUINCE, C.J., and PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur.
CANADY and POLSTON, JJ., concur in result only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590525/ | 270 S.W.3d 377 (2007)
David Lance ELLIS, Appellant,
v.
STATE of Arkansas, Appellee.
No. CA CR 07-187.
Court of Appeals of Arkansas.
December 19, 2007.
*378 Petty Law Firm, by D. Paul Petty, Searcy; Smith & Moore, PLC, by Susan Lusby, Fayetteville, for appellant.
Dustin McDaniel, Att'y Gen., by Jake H. Jones, Ass't Att'y, Gen., Little Rock, for appellee.
JOHN MAUZY PITTMAN, Chief Judge.
Appellant in this criminal case was convicted of four counts of rape of his minor stepdaughter, committed when she was between the ages of eleven and fourteen. The victim testified that the abuse occurred continuously over a period of several years, usually on the living room couch, when her mother was present. Appellant moved in limine to prevent any testimony that appellant's wife, the victim's mother, pled guilty to abusing her minor son. This was denied. On appeal, appellant argues that the trial court erred in allowing testimony by the victim that her brother knew about the abuse because he was involved in it, and testimony of a police officer that appellant's wife was in the county jail. We affirm.
Appellant's arguments hinge on his assertion that his wife's sexual abuse of the children was not relevant to his crime, or that any relevance is outweighed by the potential for unfair prejudice. He is wrong. Evidence of the depravity of appellant's wife was highly relevant, especially in light of the victim's testimony that the rapes continued for years in the open where her mother was present.
Appellant's wife had a legal duty to protect her daughter from sexual abuse if she knew or should have known it was occurring. See Ark.Code Ann. § 9-27-303(36)(A) (Supp.2005). More importantly, Arkansas courts, in recognition of basic human nature, have long engaged the presumption that parents will care for their children, bring them up properly, and treat them with kindness and affection. See, e.g., Manuel v. McCorkle, 24 Ark.App. 92, 749 S.W.2d 341 (1988). The State needed to explain how these crimes could possibly have occurred in the presence of the victim's mother; therefore, the mother's *379 depraved sexual abuse of her own children was highly relevant.
Abuse of another child in the same home has been held to be relevant and admissible even when perpetrated by the defendant. See, e.g., Limber v. State, 264 Ark. 479, 572 S.W.2d 402 (1978).
[T]he general rule is that evidence of other crimes by the accused, not charged in the indictment or information and not a part of the same transaction, is not admissible at the trial of the accused; however, evidence of other crimes is admissible under the res gestae exception to the general rule to establish the facts and circumstances surrounding the alleged commission of the offense. Haynes v. State, 309 Ark. 583, 832 S.W.2d 479 (1992); Young v. State, 269 Ark. 12, 598 S.W.2d 74 (1980). Under the res gestae exception, the State is entitled to introduce evidence showing all circumstances which explain the charged act, show a motive for acting, or illustrate the accused's state of mind if other criminal offenses are brought to light. Haynes v. State, supra. Specifically, all of the circumstances connected with a particular crime may be shown to put the jury in possession of the entire transaction. Haynes v. State, supra. Where separate incidents comprise one continuing criminal episode or an overall criminal transaction, or are intermingled with the crime actually charged, the evidence is admissible. See Ruiz & Van Denton v. State, 265 Ark. 875, 582 S.W.2d 915 ([1979] 1989); Thomas v. State, 273 Ark. 50, 615 S.W.2d 361 (1981); Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985). Res gestae testimony and evidence is presumptively admissible. Henderson, supra; Lair v. State, 283 Ark. 237, 675 S.W.2d 361 (1984); Love v. State, 281 Ark. 379, 664 S.W.2d 457 (1984); Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982).
Gaines v. State, 340 Ark. 99, 110, 8 S.W.3d 547, 554 (2000). Here, the testimony was essential to explain the charged act, it was therefore of great relevance, and, because it involved the crime of a third party rather than of the appellant himself, there was far less danger of unfair prejudice than would normally be the case.
Affirmed.
ROBBINS and BIRD, JJ., agree. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1021125/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4756
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FLOYD HAYES,
Defendant - Appellant.
No. 06-4757
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FLOYD HAYES,
Defendant - Appellant.
No. 06-4758
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FLOYD HAYES,
Defendant - Appellant.
No. 06-4759
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FLOYD HAYES,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (1:04-cr-00243-JAB; 1:04-cr-00244-JAB; 1:04-cr-
00367-JAB; 1:05-cr-00192-JAB)
Submitted: November 8, 2006 Decided: November 30, 2006
Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Paul A.
Weinman, Assistant United States Attorney, Winston-Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
- 2 -
PER CURIAM:
In these consolidated appeals, Floyd Hayes pled guilty to
several offenses arising from two North Carolina bank robberies.
The district court sentenced Hayes under the advisory sentencing
guidelines to 272 months’ imprisonment, or the low end of the
guidelines. Hayes claims that because we review sentences within
the guidelines as presumptively reasonable, the guidelines are per
se mandatory and our review is unconstitutional. Hayes further
claims his sentence is unreasonable. Finding no error, we affirm.
We review a post-United States v. Booker, 543 U.S. 220
(2005), sentence “to determine whether the sentence is within the
statutorily prescribed range and is reasonable.” United States v.
Moreland, 437 F.3d 424, 433 (4th Cir.), cert. denied, 126 S. Ct.
2054 (2006) (internal quotation marks and citation omitted). “[A]
sentence within the proper advisory Guidelines range is
presumptively reasonable.” United States v. Johnson, 445 F.3d 339,
341 (4th Cir. 2006). “[A] defendant can only rebut the presumption
by demonstrating that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks and
citation omitted), petition for cert. filed, __ U.S.L.W. __ (U.S.
July 21, 2006) (No. 06-5439). While a district court must consider
the various § 3553(a) factors and explain its sentence, it need not
explicitly reference § 3553 or discuss every factor on the record.
- 3 -
Johnson, 445 F.3d at 345. This is particularly the case when the
court imposes a sentence within the applicable guideline range.
Id. One reason a sentence within an advisory range is
presumptively reasonable is that the most salient § 3553(a) factors
are already incorporated into guideline determinations. Id. at
342-43. A sentence falling outside the guidelines is not
presumptively unreasonable. However, if the sentence was based on
an error in construing the guidelines or if the court provided an
inadequate statement of reasons or improper factors, it will be
found unreasonable. United States v. Green, 436 F.3d 449, 457 (4th
Cir.), cert. denied, 126 S. Ct. 2309 (2006). When a variance is
justified by reasons tied to § 3553(a), it will be found
reasonable. When a variance from the guidelines is substantial, we
will more carefully scrutinize the reasoning. The further the
sentencing court diverges from the guidelines, the more compelling
the reasons for the divergence must be. Moreland, 437 F.3d at 434.
We find no merit to Hayes’ claim that our standard of
review renders the sentencing guidelines per se mandatory. We
further find Hayes failed to rebut the presumption of
reasonableness.
Accordingly, we affirm the convictions and sentence. 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.
- 4 -
AFFIRMED
- 5 - | 01-03-2023 | 07-04-2013 |
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