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https://www.courtlistener.com/api/rest/v3/opinions/1518320/	751 S.W.2d 487 (1988) Amiya Kumar GOSWAMI, Petitioner, v. METROPOLITAN SAVINGS AND LOAN ASSOCIATION, and Bob Baylis, Respondents. No. C-5632. Supreme Court of Texas. May 11, 1988. Rehearing Denied July 6, 1988. 488 David M. Pruessner, Thomas E. Lauria, Shank, Irwin, Conant, Lipshy, & Casterline, Dallas, for petitioner. C. Steven Matlock and Fred D. Wilshusen, Jackson, Walker, Winstead, Cantwell & Miller, Michael V. Killough, Michael V. Killough, Inc., Dallas, for respondents. OPINION GONZALEZ, Justice. This is an appeal from a summary judgment. Suit was brought by Amiya Kumar Goswami to set aside a foreclosure sale and to recover damages for wrongful foreclosure and quantum meruit. The trial court rendered summary judgment in favor of Metropolitan Savings and Loan Association. The court of appeals affirmed the judgment of the trial court. 713 S.W.2d 127. We reverse the judgment of the court of appeals and remand this cause to the trial court. Mal Yerasi, who is not a party to this cause, owned the King Manor Apartments located in Dallas, Texas. The property was subject to a deed of trust lien in favor of Metropolitan. Some time prior to March 1982, Yerasi filed for protection in California under Chapter 11 of the Bankruptcy Code. On March 24, 1982 the bankruptcy court ordered that Yerasi would be able to keep the property provided that all back payments in the amount of $10,451.30 were paid to Metropolitan by March 29, 1982. The court also ordered that the entire balance secured by the deed of trust be paid to Metropolitan or that the property be repaired to a condition satisfactory to Metropolitan by August 9, 1982. In addition, Yerasi was ordered to comply with all of the provisions of the deed of trust. In the event that any of the conditions set by the bankruptcy court were not satisfied, the automatic stay would be terminated so as to permit foreclosure of Metropolitan's deed of trust. On May 19, 1982, Yerasi and Goswami signed a "Lease-Option Agreement." The agreement provided that Goswami was to lease and refurbish the property. This agreement also gave him an option to buy the property. Goswami made monthly mortgage payments to Metropolitan and made extensive repairs to the property. Metropolitan subsequently decided that the repairs were not satisfactory and scheduled foreclosure of the property on September 7, 1982. Yerasi petitioned the bankruptcy court for a temporary restraining order to 489 prevent foreclosure of the property. The bankruptcy court denied the application and Yerasi appealed to a bankruptcy appellate panel. On September 3, 1982, the United States Bankruptcy Appellate Panel of the Ninth Circuit issued a temporary stay through September 8, 1982 "to allow the panel to consider [Yerasi's] emergency motion for stay pending appeal." Notwithstanding the stay order, Metropolitan went ahead with the foreclosure sale on September 7, 1982. The property was purchased by Bob Baylis. Goswami recorded the lease-option agreement thereby creating a cloud on Baylis' title. On September 9, 1982, the bankruptcy appellate panel denied the emergency motion for stay pending appeal. Goswami sued Metropolitan to set aside the foreclosure sale and to recover damages for wrongful foreclosure. Goswami later filed an amended petition wherein he sought to recover the monies spent on refurbishing the property on a theory of quantum meruit. Baylis intervened to clear his title. Standing Metropolitan maintains that Goswami lacks standing to contest the validity of the foreclosure sale. This is based upon the contention that Goswami is a "stranger" to the title of the property. The issue of identifying who properly has standing to contest a foreclosure sale in Texas is well settled. As a general rule, only the mortgagor or a party who is in privity with the mortgagor has standing to contest the validity of a foreclosure sale pursuant to the mortgagor's deed of trust. Estelle v. Hart, 55 S.W.2d 510, 513 (Tex. Comm'n.App.1932, opinion adopted); Mercer v. Bludworth, 715 S.W.2d 693, 698 (Tex.App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.). However, when the third party has a property interest, whether legal or equitable, that will be affected by such a sale, the third party has standing to challenge such a sale to the extent that its rights will be affected by the sale. American Savings & Loan Assoc. v. Musick, 531 S.W.2d 581, 586 (Tex.1976); Estelle v. Hart, 55 S.W.2d at 513. It is not clear from the record whether a trustee was assigned by the bankruptcy court to administer the estate of Yerasi. In the event that a trustee was not assigned, Yerasi had the right to perform all of the functions and duties of a Chapter 11 trustee. 11 U.S.C. §§ 1107, 1303 (1987). The trustee or Yerasi was empowered to use, sell or lease the property, other than in the ordinary course of business, after notice and hearing. 11 U.S.C. § 363(b)(1) (1987). Prior to the signing of the lease-option agreement a hearing was conducted before the bankruptcy court with Metropolitan in attendance. Metropolitan made no objection in the bankruptcy court to the lease-option agreement. Instead, Metropolitan accepted mortgage payments from Goswami pursuant to the lease-option agreement. When no objection is made to a proposed sale of property from the estate of a bankrupt, other than in the ordinary course of business, the sale is tacitly authorized by the bankruptcy court without its further involvement. 11 U.S.C. § 102(1) Notes of Committee on the Judiciary (1987); In re Robert L. Hallamore Corp., 40 B.R. 181, 183 (Bankr.Mass.1984); Collier on Bankruptcy, ¶ 363.01 (15th ed.) 1986. Since no objection to the lease-option agreement was made by Metropolitan, Goswami acquired an equitable interest to the property which was affected by the sale. Thus, Goswami had standing to contest the validity of the sale. Foreclosure It is undisputed that the foreclosure sale took place during the period of time covered by the temporary stay order. A bankruptcy court may annul a stay to validate actions taken during that time, Claude Regis Vargo Enters. v. Bararisse, 578 S.W.2d 524, 527 (Tex.Civ.App.-Houston [14th Dist.] 1979, writ ref'd n.r.e.) or take some action to recognize the invalidity of the stay order. Mid City Management Corp. v. Loewi Realty Corp., 643 F.2d 386, 490 388 (5th Cir.1981); Lawson v. Gibbs, 591 S.W.2d 292, 295 (Tex.Civ.App.-Houston [14th Dist.] 1979, writ ref'd n.r.e.). The record is silent as to whether the bankruptcy court took either action. The bankruptcy appellate panel simply declined to enter another order for temporary stay during the pendency of the appeal. Consequently, the subsequent termination of the stay did not have the effect of automatically validating the foreclosure sale which had been conducted during the period of the stay. Amended Pleading Goswami argues that the court of appeals erred in affirming the trial court's summary judgment against his claim for quantum meruit because his summary judgment proof raised a fact issue to defeat the motion. Metropolitan, however, asserts that Goswami's summary judgment evidence cannot be considered because there are no underlying pleadings to support it. The court of appeals held that since the trial court granted summary judgment denying recovery on the wrongful foreclosure claim, the filing of the amended petition was immaterial. 713 S.W.2d at 129. We disagree. Goswami filed an amended petition alleging unjust enrichment four days before the date of the summary judgement hearing. Metropolitan also asserts that since the record does not show that leave of court was granted to file the amended pleading within seven days of the hearing it should be disregarded. Rule 63 of the Texas Rules of Civil Procedure provides: Parties may amend their pleadings ... provided, that any amendment offered for filing within seven days of the trial... shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such amendments will operate as a surprise of the opposite party. Accordingly, pleading amendments sought within seven days of the time of trial are to be granted unless there has been a showing of surprise to the opposite party. Rogers v. Gonzales, 654 S.W.2d 509, 515 (Tex.App.-Corpus Christi 1983, writ ref'd n.r.e.). A liberal interpretation has been given to Rule 63. Texas courts have held that in the absence of a sufficient showing of surprise by the opposing party, the failure to obtain leave of court when filing a late pleading may be cured by the trial court's action in considering the amended pleading. Lloyds of London v. Walker, 716 S.W.2d 99, 103 (Tex.App.-Dallas 1986, writ ref'd n.r.e.); West v. Touchstone, 620 S.W.2d 687, 689 n. 2 (Tex.Civ.App.-Dallas 1981, writ ref'd n.r.e.); Swinney v. Winters, 532 S.W.2d 396, 400 (Tex.Civ.App.-San Antonio 1975, writ ref'd n.r.e.); Lucas v. Hayter, 376 S.W.2d 790 (Tex.Civ.App.-San Antonio, 1964, writ dism'd). A summary judgment proceeding is a trial within the meaning of Rule 63. See Leche v. Stautz, 386 S.W.2d 872 (Tex.Civ. App.-Austin 1965, writ ref'd n.r.e.); Jones v. Houston Materials Co., 477 S.W.2d 694, 695 (Tex.Civ.App.-Houston [14th Dist.] 1972, no writ). The record does not reflect whether leave of court was requested or granted. In addition, the record gives no indication that the trial court refused leave to file nor does it contain a motion to strike the amended petition. The amended petition is a part of the record that was before the trial court and the trial court's judgment states that all pleadings on file were considered by the court. Since the record is silent of any basis to conclude that the amended petition was not considered by the trial court, and inasmuch as Metropolitan has not shown surprise or prejudice, leave of court is presumed. Lloyd's of London v. Walker, 716 S.W.2d at 103; Swinney v. Winters, 532 S.W.2d at 400.[1] We therefore conclude 491 that Goswami's claim for quantum meruit was properly before the trial court. The standards for reviewing summary judgment are well settled. They are as follows: 1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. 2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. 3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex.1985). Goswami testified by deposition that he made eleven payments of $2,091 each to Metropolitan or to its attorney, five of these payments were to bring the mortgage current and six were monthly mortgage payments made as they became due. The last payment was cashed after the foreclosure. In addition, he paid $70,000 for repairing and rehabilitating the property and paid over $4,000 for property taxes. Because fact issues exist as to Goswami's claim for wrongful foreclosure and quantum meruit, the court of appeals erred in affirming the summary judgment. City of Houston v. Clear Lake Basin Authority, 589 S.W.2d 671 (Tex.1979). The judgment of the court of appeals is reversed and this cause is remanded to the trial court for a trial on its merits. NOTES [1] The presumption which governs amended pleadings under Tex.R.Civ.P. 63 should not be confused with the presumption which governs the filing of opposing affidavits and written responses to a motion for summary judgment under Tex.R.Civ.P. 166a. As we stated in INA of Texas v. Bryant, 686 S.W.2d 614, 615 (Tex. 1985), when nothing appears of record to indicate that the late filing of the written response was with leave of court, it must be presumed that the trial court did not consider the response.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518304/	18 Md. App. 451 (1973) 307 A.2d 721 BRUNO ANTHONY LOPATA, JR. v. STATE OF MARYLAND. No. 805, September Term, 1972. Court of Special Appeals of Maryland. Decided July 16, 1973. The cause was argued before MORTON, MOYLAN and SCANLAN, JJ. Stephen L. Miles for appellant. Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State's Attorney for Baltimore City, and Barbara Daly, Assistant State's Attorney for Baltimore City, on the brief, for appellee. MOYLAN, J., delivered the opinion of the Court. Appealing his conviction by Judge Paul A. Dorf, sitting without a jury, in the Criminal Court of Baltimore for receiving a stolen automobile, the appellant, Bruno Anthony Lopata, Jr., claims that a garage search yielding the stolen car was unconstitutional. His claim fails for either of two self-sufficient reasons: (1) The appellant had no standing to contest the search; and (2) The search, in any event, was made pursuant to a voluntary consent. The Threshold Question of Standing As a salutary limitation upon the operation of the exclusionary rule, the notion of standing precludes one person from asserting vicariously the Fourth Amendment claims of another. It is not enough for a defendant to show that someone's constitutional rights have been violated; he 453 must show that his constitutional rights have been violated. In Palmer v. State, 14 Md. App. 159, 286 A.2d 572, we traced at length the development and present parameters of the law of standing. We there pointed out that the fountainhead of present-day standing to object to searches or seizures is Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960). Standing to object to the search of a place must be based upon either of two relationships to the situs of the search: (1) A present possessory interest in the property searched; or (2) Legitimate presence upon the premises. The appellant had neither. At approximately 2:30 p.m. on February 4, 1972, the appellant was safely in the Baltimore City Jail. At that time, Sgt. William C. Hughes, of the Special Investigation Division of the Baltimore City Police Department, went to a garage located in the rear of 1117 Weldon Avenue. The lessee of the garage was Charles Mungert. Mungert, a body and fender auto mechanic, permitted free access to the garage to a number of people. He permitted the appellant and the appellant's brother to keep some automobile parts there. He testified that he was going to help the appellant's brother put a motor in the brother's 1967 Pontiac. He testified that he did not know where the motor was to come from but that one was subsequently delivered "by two boys in a red panel truck." The appellant paid Mungert nothing for the use of the garage. It is clear that, within the contemplation of Jones, the appellant had no "present possessory interest" in the Weldon Avenue garage. The first predicate upon which to base standing was, therefore, unavailable to him. Jones, in liberalizing the harsh limitations which had theretofore denied standing to guests, licensees and invitees, in 1960 extended the right to object to a search to all those "legitimately on the premises" at the time of the questioned search. That extension, however, was limited to those "on the premises" at the time. The jailed appellant obviously 454 was not that. The second predicate upon which to base standing was, thus, also unavailable to him. The very recent decision of the Supreme Court on the law of standing, Brown v. United States, 13 Cr. L. 3023, handed down on April 17, 1973, is on all fours with the case at bar. Brown was convicted of transporting stolen goods in interstate commerce. Brown, as in the case at bar, stored the stolen goods in the premises of someone else. Brown, as in the case at bar, was not present when the search of that premises was executed. In Brown, furthermore, the search of the co-conspirator's premises was held to be unconstitutional and a motion to suppress was granted as to him. Notwithstanding that clear unconstitutionality as to one with standing, Brown was held to be beyond the pale of the Fourth Amendment protection. The Supreme Court disposed of Brown's claim as follows: "In deciding this case, therefore, it is sufficient to hold that there is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) had no proprietary or possessory interest in the premises..." The Supreme Court concluded, in Brown: "[P]etitioners had no standing to contest the defective warrant used to search Knuckles' store; they could not then and cannot now rely on the Fourth Amendment rights of another. `Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted. Simmons v. United States, 390 U.S. 377 (1968); Jones v. United States, 362 U.S. 257 (1960).' Alderman v. United States, 394 U.S. 165, 174 (1969)." Consent to Search Even though the lack of standing could in and of itself dispose of the appellant's Fourth Amendment claim, we deliberately elect to point out that, in any event, the search 455 of the garage here was constitutionally valid pursuant to a voluntary consent, because of the appropriateness of the Supreme Court's recent pronouncement in Schneckloth v. Bustamonte, 13 Cr. L. 3107, handed down on May 29, 1973. Schneckloth dealt for the first time with the quality of consent required to meet Fourth Amendment standards. From its previous decisions which had touched on the question of consent, Davis v. United States, 328 U.S. 582, 593-594, 66 S. Ct. 1256, 90 L. Ed. 1453 (1946); Zap v. United States, 328 U.S. 624, 630, 66 S. Ct. 1277, 90 L. Ed. 1477 (1946); Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968); and Vale v. Louisiana, 399 U.S. 30, 35, 90 S. Ct. 1969, 26 L. Ed. 2d 409 (1970), the Supreme Court in Schneckloth distilled the principle that to be constitutionally valid a consent to search must be "voluntary." It then put the issue: "The precise question in this case, then, is what must the state prove to demonstrate that a consent was `voluntarily' given." The Court then turned, for guidance in answering that question, to the "most extensive judicial exposition of the meaning of `voluntariness'" which had been developed in "some 30 different cases" between Brown v. Mississippi, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682 (1936), and Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). During those years before Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), established an ironclad ritual, the voluntariness of a confession was judged by the "totality of the circumstances." Under that standard of measurement, no one factor, by its presence or absence, could determine the ultimate issue. Under that "totality" approach: "The ultimate test remains that which has been the only clearly established test in Anglo-American Courts for two hundred years: the test of voluntariness. Is the [act at issue] the product of an essentially free and unconstrained choice by its maker? 456 If it is, if he has willed to [so act], it may be used against him. If it is not, if his will has been over-borne and his capacity for self-determination critically impaired, the use of his [action] offends due process.' Culombe v. Connecticut [367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961).]" After cataloguing the myriad factors, bearing on both the conduct of the police and on the character of the accused, Schneckloth concluded: "The significant fact about all of these decisions is that none of them turned on the presence or absence of a single controlling criterion; each reflected a careful scrutiny of all the surrounding circumstances.... Similar considerations lead us to agree with the courts of California that the question whether a consent to a search was in fact `voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." The Supreme Court rejected flatly the proposition, advanced by the appellant here, that the police must warn the property owner that he has a right to refuse to consent: "One alternative that would go far towards proving that the subject of a search did know he had a right to refuse consent would be to advise him of that right before eliciting his consent. That, however, is a suggestion that has been almost universally repudiated by both federal and state courts, and, we think, rightly so. For it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning." See also Morgan v. State, 2 Md. App. 440, 234 A.2d 762. Schneckloth went even further and pointed out that far from requiring such a warning, it would not even insist that the property owner know that he has a right to refuse to 457 consent in order for the consent to be voluntary. Under the "totality of circumstances" approach, reasoned the Court, such knowledge or lack of knowledge is merely one of the constituent factors in the ultimate "voluntariness" equation. Schneckloth squarely rejected the idea that a Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938) waiver standard would be applied to consent to search cases. It pointed out that the "intentional abandonment or relinquishment of a known right" measuring rod was enunciated "in the context of the safeguards of a fair criminal trial." It added, "Our cases do not reflect an uncritical demand for a knowing and intelligent waiver in every situation where a person has failed to invoke a constitutional protection." The Court made clear that the notion of waiver is a flexible one, from right to right, "While we have occasionally referred to a consent search as a `waiver,' we have never used that term to mean `an intentional relinquishment or abandonment of a known right or privilege.'" And see Miller v. Warden, 16 Md. App. 614, 615-621, 299 A.2d 862; State v. McKenzie, 17 Md. App. 563, 573-574, 303 A.2d 406. Schneckloth then concluded: "In short, there is nothing in the purposes or application of the waiver requirements of Johnson v. Zerbst that justifies, much less compels, the easy equation of a knowing waiver with a consent search. To make such an equation is to generalize from the broad rhetoric of some of our decisions, and to ignore the substance of the differing constitutional guarantees. We decline to follow what one judicial scholar has termed `the domino method of constitutional adjudication ... wherein every explanatory statement in a previous opinion is made the basis for extension to a wholly different situation." Mr. Mungert was a fully competent adult who ran his own business. He came to the police station on February 4, and there signed a consent to search form for the officers to enter and to search his garage at the rear of Weldon Avenue. 458 We attach no significance whatsoever to the failure of the police to advise him that he had a right not to consent to the search. Upon our constitutionally mandated, independent review, we are persuaded that, under the totality of the circumstances, the consent was "voluntary." Admissibility of Confession The appellant also contests the admissibility of a damning confession, in which he admitted that a 1966 burgundy Impala automobile on which he was working in the garage in the rear of Weldon Avenue was known by him to have been stolen from the vicinity of Cooks Lane in Baltimore City. The appellant does not contend that he was not given his Miranda warnings. Indeed, he acknowledged signing a waiver of rights from. His sole contention, with respect to the confession, is that it was induced by promises of leniency. Sgt. Hughes made it clear that he never made any promises whatsoever to the appellant that he would not fully be prosecuted on this and a companion case. Sgt. Hughes pointed out that the police were making an effort to recover a number of other stolen vehicles. The appellant was informed that if he would give the police information leading to the recovery of other stripped vehicles, he would not be charged on those other cases. It is clear to us, as it was clear to Judge Dorf, that whatever the quid pro quo for other information, there were no promises made inducing a confession in this case. Sufficiency of Evidence Sometime during the night of January 16-17, 1972, Jimmy Roger Horton had his automobile stolen. He ultimately identified the front end and the engine of his automobile. The police found that front end and that engine in the rear of the garage at 1117 Weldon Avenue. The appellant acknowledged in his confession that he knew that some of the automobiles which he was cutting up and working upon were stolen. Mr. Mungert testified that the parts of stolen automobiles recovered by the police were stored and worked on in the garage by the appellant and his brother. *459 In a case tried before the court without a jury, the test as to whether the trial judge was clearly erroneous in reaching a verdict of guilty on the evidence is whether the admissible evidence adduced at the trial either showed directly, or circumstantially, or supported a rational inference of, the facts to be proved, from which he, as the trier of the fact, could fairly be convinced, beyond a reasonable doubt, of the appellant's guilt of the offense charged and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses. Williams v. State, 5 Md. App. 450, 459, 247 A.2d 731; Metz v. State, 9 Md. App. 15, 23, 262 A.2d 331; Maryland Rule 1086. We hold that the trial judge here was not clearly erroneous in reaching a verdict of guilty. Judgment affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518328/	452 Pa. 500 (1973) Commonwealth v. Ross, Appellant. Supreme Court of Pennsylvania. Argued November 20, 1972. July 2, 1973. 501 Before JONES, C.J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ. 502 Raymond J. Lobos, with him Graham C. Showalter, and Groover & Lobos, for appellant. A. Thomas Wilson, District Attorney, for Commonwealth, appellee. OPINION BY MR. JUSTICE POMEROY, July 2, 1978: The appellant, James L. Ross, was arrested on December 10, 1970 and charged with murder. A jury found him guilty of voluntary manslaughter, for which he was sentenced to serve two to twelve years in a correctional institution. Post-trial motions were denied, and this direct appeal followed. One Lester Sampsell, a friend of the appellant, was shot and killed on the night of December 9, 1970 (probably soon after midnight, on the morning of December 10) in a wooded area in West Buffalo Township, Union County, Pennsylvania. The scene of the shooting was not far from the home of appellant and the trailer home of appellant's father. The police were alerted to the fact that someone had been shot by telephone calls which Ross made to the office of the sheriff and of the state police from his father's trailer. To the sheriff he declared he had "shot a man and he isn't moving". A little later the victim's father, Herman Sampsell, telephoned to Ross to inquire what was going on. Ross replied, "I got a hell of a lick'n and I know I shot a man".[1] The police in due course arrived at the trailer of 503 ROSS, Sr., having first located the scene of the shooting and found Sampsell's body. Immediately upon their arrival, appellant blurted out that he had shot someone, but did not know who. This was repeated several times despite admonition by the police to keep quiet until he had been informed of his constitutional rights. After Miranda warnings had been given, appellant again declared that he had shot a man, this time to the county coroner, a medical doctor, who gave ROSS a physical examination. Appellant was placed under arrest and taken to the police station within an hour and a half of his arrest. A number of trial errors are asserted on this appeal. We find none of them meritorious, and will affirm. The points are considered seriatim. (1) Appellant contends that his statements to the police officers at his father's trailer and those to the coroner should be suppressed because he had not received the warnings mandated by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed 2d 694 (1966).[2] Appellant fails to note that it is custodial interrogation which is prohibited by Miranda, 384 U.S. at 478. Even were we to assume that Ross became "in custody" the moment the police reached the trailer, at no time did the policemen attempt any questioning. To the contrary, Ross was 504 warned to "keep quiet", not merely that he had a right to silence. As we had occasion to repeat recently, "`Volunteered statements of any kind are not barred by the Fifth Amendment . . .' and are fully admissible even when not preceded by warnings. Miranda v. Arizona, 384 U.S. 436, 478, 86 S. Ct. 1602, 1630 (1966); Commonwealth v. McKinnon, 443 Pa. 183, 186, 278 A.2d 878, 879 (1971); Commonwealth v. Brown, 438 Pa. 52, 56, 265 A.2d 101, 104 (1970); Commonwealth ex rel. Vanderpool v. Russell, 426 Pa. 499, 502, 233 A.2d 246, 247 (1967)." Commonwealth v. Koch, 446 Pa. 469, 476, 288 A.2d 791 (1972). The statements made by Ross to the police and coroner clearly were in the voluntary category: they were not the product of any police interrogation or duplicity. (2) Appellant next challenges the introduction into evidence, over objection, of his rifle, a .300 Savage. After daylight on the morning of the shooting the police had conducted a search of the wooded area in which Sampsell was killed for the weapon used. Finding nothing, they went to the trailer of ROSS, Sr., who delivered to the police his son's rifle. The gun had been found by the father leaning against the trailer. The police had no search warrant for the weapon, but according to the Commonwealth testimony, it was handed over to the police voluntarily. The suppression judge found that there was valid consent, and we see no reason to disturb that holding. The mere fact that, according to Mr. ROSS, one of the state police officers told him "we have to have that gun" and that Ross was not instructed that he had no obligation to surrender it does not warrant us in concluding as a matter of law, as appellant urges, that the "consent" was really duress and coercion. Moreover, appellant did not live with his father, or store his rifle at the trailer. It is thus quite clear that appellant is here asserting possible violations, not of 505 his own Fourth Amendment rights, but those of his father.[3] But such rights are personal in nature, and are not to be vicariously asserted. Alderman v. United States, 394 U.S. 165, 174, 22 L. Ed. 2d 176, 187 (1969). We therefore need not belabor the issue further. (3) Over objection of defense counsel, four photographs portraying the deceased's body at the scene of the crime were introduced as evidence at trial. It is claimed that the pictures were gruesome, inflammatory and prejudicial. The pictures were in black and white and showed the body from three angles. Only two of the photos (Commonwealth exhibits 4 and 7) appear to us doubtful. One depicts a front view of the decedent, fully clothed, lying on his side on the ground. The left half of his neck and face are covered with a dark substance, apparently blood. The other picture is a blow-up of the head to waist section shown in the former photograph; in it one can now discern blood coming from the decedent's mouth. While the word "gruesome" can probably be accurately applied to these two photographs, we cannot say that the trial judge was in error in allowing their introduction.[4] "The admission of such evidence is largely within the discretion of the trial court." Commonwealth v. Smalls, 449 Pa. 15, 18, 295 A.2d 298 (1972). In Commonwealth v. Robinson, 433 Pa. 88, 249 A.2d 536 (1969), we said, reiterating what had been previously held in Commonwealth v. Novak, 395 Pa. 199, 212, 150 A.2d 102: "[I]n the trial of criminal cases photographs 506 of the victim and of the scene of the crime are admissible to aid the jury in their understanding of the alleged crime, the kind of crime it was, exactly what caused the victim's death and what, if any, connection defendant had with it; however, they are not admissible for the purpose of exciting or inflaming the emotions of the members of the jury." Where pictures are gruesome and so may be thought to have an inflammatory effect on the jury, the test to be used by the trial court in judging the admissibility is "whether or not the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors." Commonwealth v. Wilson, 431 Pa. 21, 31, 244 A.2d 734 (1968). See also Commonwealth v. Eckhart, 430 Pa. 311, 242 A.2d 271 (1968); Commonwealth v. Powell, 428 Pa. 275, 241 A.2d 119 (1968). In the case at bar the evidentiary value of the photographs was plain. They tended to counter the defendant's theory of self-defense. Ross, testifying on his own behalf, stated that he shot straight at a person in standing position who gave the appearance of aiming a rifle at him, and his shot would have gone "straight through" that person. From the pictures the jurors could see for themselves that Sampsell had been shot in the left side of the neck and could infer that he was shot, as the pathologist had indicated, while in a crouching position by someone off to his left. (His left trouser knee gave indication of kneeling on the ground.) The defendant had said that the person he had shot was in the open, not among trees; the pictures, however, showed that Sampsell had been shot in a wooded area, since there was no indication from the pictures that the leaves on the ground had been disturbed by a dragging of the body. As in Commonwealth v. Robinson, supra, we can conclude from the return of a verdict of manslaughter on facts which could well have justified 507 a verdict of murder that the passions of the jury were not in fact inflamed. We are satisfied that the lower court committed no abuse of discretion in admitting the photographs. (4) Next alleged as prejudicial error is the ruling by the trial court retaining an objected-to portion of the testimony of a pathologist who conducted the autopsy of Sampsell. The testimony in question concerns a statement by the pathologist, a Dr. Mikhail, that the fragments of the bullet remaining in the deceased's body "exceed the size of a .22 bullet". Appellant argues that because Dr. Mikhail was not a ballistics expert he was thereby unqualified to state an opinion on this subject. We disagree. Dr. Mikhail was a medical doctor with over ten years experience in pathology; he had examined "fifteen or twenty" cases of gunshot wounds. This experience and training qualified him to make the limited appraisal he gave as to the size of the projectile that struck and killed Sampsell. He did not testify as to the exact size of the bullet, just that the amount of lead fragments remaining in the body of the deceased, as revealed by x-rays and the fact of an exit wound, indicated that the bullet was larger than a .22. The doctor was competent to state this opinion. (5) Appellant's final assignment of error is that the district attorney exceeded the bounds of fair play during his cross-examination of the defendant and during his summation to the jury. We have reviewed these alleged instances of misconduct[5] and find that the remarks by the district attorney, 508 even though strongly made, were legitimate inferences from facts previously presented at the trial and did not have the unavoidable effect of prejudicing the jury by "forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict." Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968). See also Commonwealth v. Toney, 439 Pa. 173, 266 A.2d 732 (1970). In short, while we do not approve the district attorney's statement as quoted in the margin, it does not rise to that degree of offensiveness which we found in Commonwealth v. Potter, 445 Pa. 284, 285 A.2d 492 (1971), wherein the prosecutor branded the testimony of the defendant a "malicious lie".[6] *509 Judgment of sentence affirmed. Mr. Justice ROBERTS and Mr. Justice NIX concur in the result. Mr. Justice MANDERINO dissents. NOTES [1] The "licking" referred to a beating administered to Ross by one James Easton, who had earlier supervised a deer shooting contest between Sampsell and Ross. The latter accused Easton of placing Ross unfairly in inferior shooting positions. Following some drinks, Ross and Easton agreed to settle the dispute by fisticuffs. After Ross received a trouncing he was heard to say that he would return with a gun. Indeed he made the same threat to his brother, who drove him home. In was not long thereafter before Ross was sighted near the highway by Easton, Sampsell and others as they drove in the former's car. As the car came abreast of Ross, a shot was heard. Sampsell and another entered the woods, both apparently unarmed. Then another shot was heard, and the sound of someone crashing through the underbrush. The body of Sampsell was later found in the vicinity from which came the sound of the second shot. [2] This issue was raised at an unsuccessful pre-trial suppression hearing at which time appellant also attempted to suppress the statements he made during the telephone calls. The latter are not questioned on this appeal. [3] Appellant's own brief suggests as much: a "knowing, intelligent and voluntary waiver of his Fourth (4th) Amendment rights must be afforded the owner of the household, in this case James M. Ross". Appellant's brief at 19. [4] The trial judge was of the opinion that the exhibits were neither gruesome nor inflammatory, and that they had important evidentiary value. [5] Only one of the statements made by the district attorney was objected to at trial by appellant's counsel. We quote from the notes of testimony during the cross-examination of the defendant (pp. 679, 680): "Q. (By the District Attorney): If you would have hit him, where would the bullet hit him? A. (By the defendant): Accord'n to the way the man was stand'n when I seen him, I would have shoot the man straight through. Q. Was there ever a body found out there that was dead? that had a bullet hole right through him there? A. I couldn't testify actually my bullet would've hit the man, but Q. But did you aim at him there and you shot. A. I just aimed at an object. I just took and whirled and fired. Q. Why would you ever have told all these people you shot a man if you shot at some object? A. There was a possible chance of it and I didn't Q. What do you mean `a possible chance?' A. There was a possible chance that I hit that man. Q. You knew you hit that man! He was right there on his knees and you shot him! A. I didn't do no such thing like that. Q. Where is this body that you shot, then? There was one body out there, it was Lester Sampsell, and you know how the wound was inflicted. You heard the testimony and you know how he died. There was nobody else. Henry Ulrich is still here. All of the same people that were with you are still on this earth but Lester Sampsell, and he's not here because of you! MR. SHOWALTER: I object, Your Honor. That's prejudicial. MR. WILSON: I'm through. MR. SHOWALTER: I would also like to object to the fact that everybody isn't here. THE COURT: It would be more properly used in the final argument rather than this time; however, it's cross-examination and we're not going to restrict either of you on cross-examination." [6] Appellant also contends that the evidence was insufficient to support the conviction of voluntary manslaughter. This point is patently unmeritorious and does not warrant further discussion in the opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518352/	751 S.W.2d 639 (1988) James GOLDEN, Appellant, v. FIRST CITY NATIONAL BANK IN GRAND PRAIRIE, Appellee. No. 05-87-00605-CV. Court of Appeals of Texas, Dallas. May 16, 1988. 640 Tim Tyner, Susan Leigh Sanders, Arlington, for appellant. James F. Boyle, Grand Prairie, for appellee. Before ENOCH C.J., and HUGHES[1] and ASHWORTH[2], JJ. ENOCH, Chief Justice. Appellant James Golden (Golden) appeals the trial court's judgment in a conversion action brought against him by appellee First City National Bank in Grand Prairie (First City). In six points of error, Golden contends that the district court erred in delivering to the jury a supplemental, verdict-urging instruction commonly known as an Allen type charge. See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). Golden further urges that the court erred in denying his motion for new trial based upon jury misconduct. For the reasons discussed below, we affirm the judgment of the district court. First City sued Golden to recover $11,700.00. First City contended that Golden came to the bank to cash checks worth approximately $1,300.00, but that First City's teller mistakenly gave him $13,000.00. Golden denied these allegations. The case was tried to a jury. The court submitted one special issue to the jury inquiring whether Golden had received $11,700.00 belonging to First City. After deliberating approximately three hours, the jury sent a note to the trial judge stating that the jurors could not agree on an answer to the special issue. After consulting with counsel, the judge sent a supplemental, verdict-urging instruction to the jury. Approximately thirty minutes later, the jury returned a ten to two verdict in favor of First City. In its brief, First City correctly points out that Golden has failed to provide an appellate record which demonstrates either the exact contents of the jury's note to the judge or the length of the jury's deliberations before and after receiving the supplemental charge. For purposes of this opinion, however, we will accept the description in Golden's brief. After trial, First City filed a motion for judgment on the verdict. Golden filed a response and motion for new trial. The motion for new trial alleged jury misconduct and was supported with an affidavit from one of the jurors. In the affidavit, the juror stated that he did not believe that First City had proven its case against Golden. However, he felt pressured into changing his vote in favor of First City because, after receiving the supplemental charge, he 641 was led to believe that a hung jury was not allowed. The judge granted First City's motion for judgment on the verdict and overruled Golden's motion for new trial. Twenty-nine days after the trial court's ruling on his first motion for new trial, Golden submitted a second motion for new trial. Despite some changes in wording, the grounds for this motion were essentially the same as in the first motion. The trial court's docket sheet shows that this motion was also denied. THE SUPPLEMENTAL INSTRUCTION All of Golden's points of error, in one manner or another, concern whether the supplemental instruction was coercive. Therefore, we will review the instruction before discussing Golden's points of error. The court submitted the following charge to the jury. Members of the Jury: I have your note that you are unable to reach a decision on the charge submitted to you by the Court. I am going to ask you to return to the jury room to continue your deliberations. This case has been ably tried by competent attorneys and you are a representative jury of the citizens of Dallas County. In the interest of justice, if you could end this litigation by your verdict, you should do so. I do not mean to say that any individual person on the jury should yield his or her own conscience and positive conviction, but I do mean that when you are in the jury room, you should discuss this matter among yourselves carefully and listen to each other, and try, if you can, to reach a conclusion on the issues. It is the duty of jurors to keep their minds open and free to every reasonable argument that may be presented by fellow jurors that they may arrive at a decision which justly answers the consciences of the individuals making up the jury. A juror should not surrender any conscientious views founded upon the evidence unless convinced of his or her error by fellow jurors. It has cost the citizens of Dallas County considerable expense to have this case tried before a jury over the past few days. I am satisfied, ladies and gentlemen, that you have not deliberated sufficiently so that, in good conscience, I can accept a report that you cannot reach a decision. Accordingly, please return to the jury room to continue your deliberations. In Stevens v. Travelers Insurance Company, 563 S.W.2d 223 (Tex.1978), the supreme court sets forth the procedure for evaluating whether a verdict-urging instruction is coercive. First, the court must examine the charge for possibly coercive statements. If a possibly coercive statement is found, the court then must consider the charge as a whole and the circumstances surrounding it. Id. at 229-32. In this case, the charge presented by the district court is substantially similar to the charge considered in Stevens, except that the trial court in this case eliminated a statement identified in Stevens as potentially coercive. Nevertheless, Golden asserts that the instruction contains two statements which render it coercive. First, Golden points to the statement: "It has cost the citizens of Dallas County considerable expense to have this case tried before a jury over the past few days." Golden argues that this statement is coercive. He contends that its placement in a separate paragraph near the bottom of the charge lends it undue emphasis. Despite Golden's arguments, we cannot agree that this statement is coercive. The charge in Stevens contained a substantially identical statement in a substantially identical position in the charge. Although the court in Stevens did not approve this statement, it stated that, "if it is given, it is not, without more, coercive." Stevens, 563 S.W.2d at 231-32. Golden has pointed to no factors which differentiate the cost statement in this charge from the cost statement in Stevens. Therefore, following Stevens, we conclude that this statement is not coercive. 642 The second statement which Golden considers improper is "I am satisfied, ladies and gentlemen, that you have not deliberated sufficiently so that, in good conscience, I can accept a report that you cannot reach a decision. Accordingly, please return to the jury room to continue your deliberations." Again, this statement is substantially similar to one which the Stevens court found non-coercive. Golden points out that this statement differs from the statement in Stevens in that the trial court in this case used the words "reach a decision" while the charge in Stevens used the words "arrive at an agreement." This difference is without significance, and we hold that the statement in this case is not coercive. Golden further argues, though, that the court's charge was unduly coercive because it was not tailored to take into account the circumstances of the case and the susceptibility of this particular jury to the effects of the charge. Golden did not suggest, however, either to the trial court or in his brief, any particular way in which the trial court should have tailored its charge. Nor did he identify any characteristics of the case or the jury which would have indicated, at the time that the charge was submitted, that such tailoring was required. Golden urges, however, that the juror's affidavit supporting his motion for new trial demonstrates that the charge had the effect of being coercive. The procedure prescribed by Stevens requires a court to consider the surrounding circumstances in evaluating a supplemental, verdict-urging instruction only if the court determines that the instruction contains potentially coercive statements. Anzaldua v. American Guarantee Liability & Insurance Co., 596 S.W.2d 222 (Tex.Civ. App.-Houston [14th Dist.] 1980, writ ref'd n.r.e.). In this case, the supplemental instruction contains no such statements. Therefore, we need not consider the surrounding circumstances. Regardless, if we were to consider the surrounding circumstances, Texas Rule of Civil Procedure 327(b) and Texas Rule of Civil Evidence 606(b), discussed below, preclude consideration of the juror's affidavit. Without the affidavit, the only factor stated by Golden as demonstrating a coercive effect is the jury's returning its verdict thirty minutes after receiving the charge. Given that the total deliberations lasted only three and one-half hours, this does not demonstrate that the charge was coercive. Nothing in our review suggests that the instruction in this case was coercive. We now consider Golden's points of error. Points of Error Two and Three In points of error two and three, Golden contends that the trial court erred in submitting the supplemental instruction to the jury and failing to accept its deadlocked verdict. First City argues that Golden has waived any error regarding the supplemental charge because he failed to object at the time the charge was submitted. We agree. Under Texas Rule of Civil Procedure 272,[3] litigants must present their objections to the charge before it is presented to the jury. Objections not so presented are waived. TEX.R.CIV.P. 272; see also Missouri Pacific Railroad Company v. Cross, 501 S.W.2d 868, 873 (Tex.1973). Rule 272 is most clearly applicable to objections to the court's initial charge to the jury. The rule that objections must be presented before the charge has been given to the jury, however, has also been applied to supplemental instructions, including instructions which a litigant later contends were coercive. Texas Pacific Indemnity Company v. Building Material Distributors, Inc., 508 S.W.2d 488 (Tex.Civ.App.-Waco 1974, writ ref'd n.r.e.). At oral argument, Golden asserted that a litigant should not be required to object at the time that a verdict-urging instruction is presented to the jury because the instruction's coercive effect may not be apparent until later. We disagree. 643 Although the parties may not be able to predict the effect of a verdict-urging instruction with complete accuracy, this does not relieve them of their obligation to review the text of the court's charge and point out to the trial court any statements which they find potentially coercive. A primary purpose of Rule 272 is to allow the trial court the benefit of counsel's objections so that it might correct any errors before the charge is given to the jury. Cross, 501 S.W.2d at 873. Given this purpose, the requirement of a prior objection seems particularly appropriate in a delicate area such as a verdict-urging instruction. A party may not speculate on the effect of the charge on the jury's verdict and then complain for the first time when that verdict goes against him. See Colls v. Price's Creameries, 244 S.W.2d 900, 906 (Tex.Civ. App.-El Paso 1951, writ ref'd n.r.e.). Furthermore, even if Golden had preserved error as to points two and three, our analysis shows that the charge was not coercive. Golden's second and third points of error are overruled. Points of Error Four, Five and Six Golden's fourth, fifth, and sixth points of error address the trial court's denials of his motions for new trial. We note that Golden's second motion for new trial was filed without leave of court and after the court had already ruled upon Golden's first motion for new trial. First City contends that the trial court did not err in denying Golden's second motion because it was filed without leave of court as required by TEX. R.CIV.P. 329b(b). Because these motions for new trial reveal no significant differences, we need not reach the question of whether the second motion for new trial was correctly overruled for this reason. We will simply discuss both motions as one. Golden contends that the trial court erred in refusing to allow him an evidentiary hearing on the jury misconduct allegation in his motion for new trial and, based upon this misconduct, that the trial court erred in overruling his motion for new trial. We disagree. In this case, Golden supported his motion with a juror's affidavit stating, in pertinent part: When the jury began its deliberations, I was one of four (4) jurors who believed that the Bank had not proven its case against Mr. Golden by a preponderance of the evidence. I felt pressured into changing my vote because I believed, after the judge sent us a note, that a hung jury was not allowed and that we had to make some kind of a decision. I never changed my mind and still don't believe the bank proved its case against Mr. Golden by a preponderance of the evidence. Texas Rule of Civil Procedure 327, as delineated by Roy Jones Lumber Co. v. Murphy, 139 Tex. 478, 163 S.W.2d 644, 646 (1942), governs motions for new trial based on jury misconduct.[4] According to Jones Lumber, Rule 327(a) requires the trial court to hear evidence of the alleged misconduct: (1) if the motion for new trial is supported by affidavits showing material jury misconduct; or (2) if the motion contains sufficient allegations of material jury misconduct and it discloses a reasonable explanation as to why affidavits cannot be secured. In the absence of such affidavits or a reasonable excuse for their absence, a refusal to hear evidence on the motion is within the sound discretion of the trial court. Id. However, Texas Rule of Civil Procedure 327(b) and Texas Rule of Civil Evidence 606(b) preclude the admission of testimony or affidavits by any juror concerning his mental processes or concerning matters or statements occurring during jury deliberations. Rule 606(b) provides: Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement *644 occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes. TEX.R.CIV.EVID. 606(b) (emphasis added); see also TEX.R.CIV.P. 327(b). Golden contends that his evidence of jury misconduct is admissible in this case under the provision of Rules 327(b) and 606(b) allowing jurors to testify whether "any outside influence was improperly brought to bear upon any juror." He argues that the trial court's supplemental, verdict-urging instruction represents an improper outside influence within the meaning of Rules 327(b) and 606(b). We cannot agree. As a matter of law, jury instructions cannot be an outside influence. Our rules specifically mandate in some cases and authorize in others the submission of instructions to the jury for its consideration. TEX.R.CIV.P. 277, 286. An instruction to the jury can be only one of two things. It is either legally correct or it is not. If it is not, then submission of the instruction is trial court error. As stated earlier, the supplemental, verdict-urging instruction in this case was legally correct. As all of the statements in the affidavit offered by Golden concern the juror's mental processes or matters occurring in the jury room and as the court's supplemental instruction did not represent an improper outside influence, under Rules 327(b) and 606(b), the juror's statements are inadmissible to show jury misconduct. See United States v. Vincent, 648 F.2d 1046 (5th Cir. 1981) (FED.R.EVID. 606(b) prevents probing of jurors' mental processes in determining coerciveness of Allen charge); H.E. Butt Grocery Co. v. Paez, 742 S.W.2d 824, 826 (Tex.App.-Corpus Christi 1987, writ denied) (trial court judge's response to jury inquiry during deliberations is not an outside influence); Hoffman v. Deck Masters, Inc., 662 S.W.2d 438, 442 (Tex.App.-Corpus Christi 1983, no writ) (testimony that jurors misunderstood the court's charge may not be used to impeach their verdict). Golden's fourth, fifth and sixth points of error are overruled. Point of Error One Finally, we address Golden's first point of error. In this point of error, Golden contends that the trial court erred in denying his motion for new trial because the juror's affidavit and the circumstances surrounding the return of the final jury verdict demonstrated that he did not receive a fair and impartial trial. Again, we disagree. As we previously stated, the trial court's supplemental instruction was not coercive when analyzed according to the procedure set out in Stevens. Nor does the juror's affidavit present any cognizable fact regarding jury misconduct. Furthermore, the Texas Rules of Civil Procedure provide ample opportunity to object to the delivery or contents of the charge and to obtain appellate review of the charge. Such rules provide substantial protection of Golden's right to a fair trial. TEX.CONST. art. I, § 15. See also United States v. Vincent, 648 F.2d 1046, 1050 (5th Cir.1981) (use of Allen charge, considered in light of all admissible evidence of coercive effect, did not deprive criminal defendant of fair trial). Golden's first point of error is overruled. We AFFIRM the judgment of the trial court. NOTES [1] The Honorable W.A. Hughes, Justice, retired, Court of Appeals, Second District of Texas at Fort Worth, sitting by assignment. [2] The Honorable Clyde R. Ashworth, Justice, retired, Court of Appeals, Second District of Texas at Fort Worth, sitting by assignment. [3] Texas Rules of Civil Procedure 272, 277, and 286, discussed in this opinion, were amended effective January 1, 1988. These amendments do not affect our disposition of this case. [4] Although Rule 327 has been amended since the decision in Jones Lumber, this Court as continued to follow Jones Lumber in construing that Rule's requirements regarding the proper submission of affidavits in cases of jury misconduct. See Clancy v. Zale Corp., 705 S.W.2d 820, 828 (Tex.App.-Dallas 1986, writ ref'd n.r.e.).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518366/	569 F. Supp. 1557 (1983) CHAMPION INTERNATIONAL CORPORATION, Plaintiff, v. S.S. LASH PACIFICO, her engines, boilers, etc., the Barge PL-1-0338 her engines, boiler, etc., Prudential Lines, Inc., the Tug Joan McAllister, her engines, boilers, etc., and McAllister Brothers, Inc. and American Towing and Transportation Company Inc., Defendants. No. 82 Civ. 0999 (ADS). United States District Court, S.D. New York. September 9, 1983. 1558 Hill, Rivkins, Carey, Loesberg, O'Brien & Mulroy, New York City, for plaintiff; Alan Loesberg, Robert E. Daley, New York City, of counsel. Lilly, Sullivan & Purcell, P.C., New York City, for defendants Prudential and SS Lash Pacifico; Richard M. Fricke, Steven Barkan, New York City, of counsel. McHugh, Leonard & O'Conor, New York City, for defendants McAllister Brothers, Inc., American Towing & Transp. Co., Inc. and the Tug Joan McAllister; James M. Kenny, Charles F. Kenny, Jr., New York City, of counsel. FINDINGS, OPINION AND FINAL ORDER SOFAER, District Judge: Plaintiff Champion was the consignee of 371 skids of hardboard shipped to it from Rumania on the Lash Barge PL-1-0338 ("338"), aboard the S.S. Lash Pacifico, owned by defendant Prudential Lines. After the Lash Pacifico arrived at Newport News, Virginia, on July 23, 1981, Barge No. 338 was offloaded, checked by Prudential's agents for seaworthiness, and turned over to defendants McAllister and its agent American Towing to be towed to its destination, Philadelphia. The tow commenced at 2220 hours that day, by the tug Joan McAllister, but at about 0230 hours on July 24, 1981, the towing hawser parted. The tug attempted to tow the barge back to Newport News, but the barge was found to be sinking. It was intentionally grounded later that morning in shallow water, raised on or about July 25, and thereafter repaired. The hardboard was a total loss, and plaintiff seeks damages of $109,843.01, the amount of which is uncontested. Prudential claims that McAllister and American Towing are liable for all Champion's losses, and claims in addition damages to its barge and for the salvage operation amounting to $129,142.68. McAllister and American Towing do not contest the claim that Prudential spent $129,142.68, but they argue that aspects of those damages are unreasonable and unjustified. Champion is entitled to recover all its damages. Its goods were shipped on a clean bill of lading, and their value was destroyed by exposure to water while in the care and custody of Prudential. This established its prima facie case. E.g., Vana Trading Co., Inc. v. S.S. "Mette Skou", 556 F.2d 100, 104 (2d Cir.1977), cert. denied, 434 U.S. 892, 98 S. Ct. 267, 54 L. Ed. 2d 177 (1977). Furthermore, the record establishes that Prudential failed to fulfill its duty of proper care under the Carriage of Goods by Sea Act ("COGSA"), 46 U.S.C. § 1303(1), and failed to exercise due diligence under 46 U.S.C. § 1304. The barge was not properly maintained. Its outer shell was not only severely rusted, which to an extent is normal for such barges, but was also shown to have holes in it a considerable time before the accident, which appear not to have been repaired. See Ex.P. 20 (Nov. 20, 1980); Depo. Brunson 18-24; Ex. C-15 to C-24 (pictures showing deteriorated condition). No maintenance records were kept for the barge, so Prudential could not rebut the strong evidence of its disrepair. Indeed, the record lacks any evidence that Prudential did anything to care for the barge for years before the accident, or to determine whether the barge was in good condition. The hull was not even visually examined when the barge was offloaded from the Lash Pacifico. See Depo. Bankos 44. The barge was not properly prepared for the trip from Newport News to Philadelphia. The air test performed to ascertain 1559 whether the outer skin had been breached was not done in a manner that would have revealed the presence of the holes in the outer skin, because too little air pressure was applied. The testimony of Billingsley as to the procedures he followed is inconsistent in several respects (e.g., as to the number of soundings taken and as to the manner he examined under the tape), and is therefore rejected as unreliable for establishing that no water was present in the void spaces between the vessel's two skins. He appears to have taken only two soundings, if any, and those were of the holds, not the void spaces, the integrity of which he appears erroneously to have believed was adequately tested by air pressure of only 2 lbs. per square inch. The testimony of Mr. Fife is accepted as more reliable, indicating that the pressure used would not have revealed the holes involved, which were below four feet of water. His analysis is supported, moreover, by the computations of displacement that should have occurred if the vessel's integrity had not been breached. Instead of a draft of 8' 2", which would have been expected from a barge loaded with 348 L.T. of cargo, the vessel's draft was 8* 6" or slightly more, which would have been expected with the void flooded. This left a freeboard of about 2' 6", or 2' 2" to the deck, and made the normal shipping of water under tow more likely to occur and in greater amounts. In addition, the hatches of the vessel were also shown to have been insufficiently checked to insure they were watertight. As Billingsley and Thompson testified, the offloading of the barge normally moves the hatch covers and breaks the integrity of the seals. While Billingsley claims to have properly checked the seals, reapplied the tape, and then secured the tape with additional taping, his testimony was unconvincing, in that he could not have observed the gaskets, and nevertheless did not apply new tape to the athwartship seams. The form he completed in performing the inspection indicates that, while he checked other categories of problem areas, he did not specifically perform the "Cargo Loading Inspection," which included making sure the barge was not improperly taped. See Pru. Ex.S. The manner in which the sinking occurred makes it most likely that the holds were not sufficiently watertight to withstand exposure to water under tow, which exposure both Fife and De Bouthillier testified was normal and expected. In sum, due diligence was not exercised by Prudential to make the barge seaworthy. Prudential argues that the barge was negligently towed, and that the tug therefore is responsible for all the damage to the cargo, and to the barge as well. The outer shell of the barge was not responsible for the sinking, as Prudential argues, because the evidence establishes that the inner skin was watertight. Therefore, the sinking probably did take place because water washing onto the barge entered the hold, impregnated the wood, and made the barge too heavy to float. But these facts are insufficient for Prudential to meet its burden of proving that the damages were caused by the tug's negligence rather than its own. A tug is responsible for the safety of its tow, but its duty is only to exercise reasonable care, which is measured with reference to the character of the tow and the conditions of the seas and weather. National Transport Corp. v. Tug Abqaiq, 418 F.2d 1241, (2d Cir.1969); Mid-America Transportation Co., Inc. v. National Marine Service, Inc., 497 F.2d 776, 779 (8th Cir. 1974), cert. denied, 425 U.S. 937, 96 S. Ct. 1671, 48 L. Ed. 2d 179 (1976). The evidence established that the tow was properly handled under the circumstances that existed. Weather and ocean conditions were ideal for towing. The tow speed was, as Capt. Pulley testified, about 5 knots, which Prudential's expert Mr. Browder testified would normally have been a reasonable speed for a fully-loaded barge under the weather conditions present. The speed suggested by Prudential of 10 knots is based upon an unreasonable calculation by Browder that excluded consideration of the first part of the tow, after streaming. The average speed for the entire distance covered is a more reasonable method for calculating speed under the circumstances, since under 1560 Prudential's calculations the first part of the tow would have been done at a speed of about 1 knot, an unreasonably low estimate. An examination of both the chart, P-6, and the uncontroverted log, P-3 or Ex. C-2, led to the demonstration on the record at trial that the average speed for the distance covered (11.8 miles) in 2.75 hours is 4 knots. No wall of water would have gone over the bow of the barge at such a speed, in the towing conditions that existed at the time. The equipment used on the tow, including the hawser, was proper for the task. The hawser parted probably because of the following sequence of events: after the tow commenced, and especially after the tow was streamed, a normal amount of water flowed periodically onto the deck and hatches of the barge, the total quantity of which was greater than it would have been if the barge's void space between its skins was not filled with water; the water did not go on the barge in the form of a wall, which would have led to a very rapid sinking of the barge, rather than the slow sinking process that occurred; some of the water that went aboard got into the holds, particularly in the front of the barge; the water was quickly absorbed by the untreated wood, and thereby added great weight to the bow; this caused the bow to become depressed, which led to increased amounts of water being shipped by the barge, which in turn accelerated the further absorption of the water in the wood, ultimately leading to so great an accumulation of weight that the hawser parted. The other argument for the tug's negligence during the tow is that the tug's captain and crew should have watched more closely, even though it was dark by the time the tow was streamed. But no greater degree of care was reasonable under the circumstances than was exercised, and greater care would not have saved the cargo. The tow was set in a proper manner, and it placed Barge 338 some 600 feet from the tug, which had only 2 to 3 feet of freeboard. The only condition that personnel on the tug would have been able to observe at night, even with the use of a searchlight, would have been a wall of water going over the bow. Sufficient scrutiny was undertaken to insure that no such infusion of water was occurring, and the speed was reasonably set to avoid such an infusion. The captain and crew made sure from time to time that the tow was properly aligned, and that the hawser was not excessively taut. See, e.g., Depo. O'Neil 14 (checked line half hour before it parted). Once the decks were too deep in water to permit pumping, the tug company reasonably decided to order the barge grounded in shallow water, and this order was implemented in a workmanlike manner, without unnecessary injury. A separate basis for the tug's liability exists, however, in the principles articulated by Judge Hand in Chemical Transporter, Inc. v. M. Turecamo, Inc., 290 F.2d 496, 497 (2d Cir.1961). There, although the barge being towed got into trouble because of inadequate maintenance by its owner, the tug that had it under tow had a duty to prevent the barge from sinking, if it could. Here, also, the tug failed to exercise due care after the hawser parted. The evidence as to the efforts undertaken to pump out the barge is inconsistent, and on balance shows that no serious effort was made to use the emergency pump which the tug had aboard. The tug's personnel had a considerable period of time available to them before water was so deep on the deck as to preclude pumping. See Depo. Rittenhouse 14; Depo. O'Neil 18-20. Captain Pulley claimed that Mate Quinn attempted to use the pump, but could not do so because the bow was already underwater when the tug pulled aside at around 0245 hours. Nothing in either Pulley's or Quinn's written reports of the incident indicates, however, that an effort was made to pump. See Ex. C-3 & C-4. In fact, Quinn's report says "the bow was partially submerged" which is consistent with the testimony of crewmembers O'Neil and Rittenhouse, the latter of whom said that, although the decks were not awash, no effort was made to pump because there was "[n]o place to put the pump to hook it up." Depo. Rittenhouse 14, 16. What seems to have happened is that the crew after checking for leaks and finding nothing obvious, merely went to work rigging 1561 the hawser, and then attempted to tow the barge back to Newport News. They should have been able to set up the pump within the time available and their failure to do so seems more likely than not to have contributed to the vessel's sinking. The barge was sinking slowly when the hawser parted, so a successful pumping operation might have kept the barge from sinking long enough to enable the tug company to get more pumps on the scene. In Chemical Transporter, the plaintiff proved that the tug could have prevented the sinking, so an award of full damages against the tug for the sinking was upheld. Here, although the tug failed to exercise due care after the hawser parted, this negligence had no proven bearing on the damage done to the cargo, and contributed to but was not solely accountable for, the sinking. In this case even if the pumping would have kept the barge from sinking, the cargo would nevertheless most likely have been rendered valueless. The evidence shows that the cargo was heavily impregnated with water by the time the hawser parted, and that the cargo had become so swollen before the time the vessel sank that it forced off the locked, metal hatch covers. Based on these facts, and the uncontroverted testimony that the cargo involved was highly absorbent, untreated wood which is ruined by heavy impregnation, and in light of the fact that the substantial water in the hold, and entering the hold, would have been impossible to remove entirely for a considerable period of time during which it would have caused irremediable damage, it seems most probable that the cargo would have been ruined from a commercial standpoint irrespective of whether the barge had actually sunk. The evidence in this case, moreover, failed to establish that a proper pumping effort would or would not have kept the barge from sinking. Therefore, a finding of joint and equal liability for the sinking is appropriate, along with an equal division of all reasonable and necessary damages in floating the barge and such salvage expenses for which the tug was jointly responsible. Prudential has broken down its damages in a letter dated September 2, 1983, and three items of those damages cannot be charged in full to the tug. First, the extra costs of discharging "due to the wet and swelling cargo," amounting to $34,230.37, are the sole fault of Prudential, since the cargo became wet due solely to its own negligence. Second, the claim of $55,000 for refloating the barge is excessive, in light of a surveyor's testimony that it should have cost $20,000; that sum will be reduced to $40,000. See Pru.Ex.P; Depo. Barto, p. 23. Third, the amount claimed for repairs, $905.00, must be eliminated, since those repairs were not shown to include anything other than the amount necessary to fix holes and other deficiencies in the outer skin, all of which preceded the accident. (The cost of the hatch covers, on the other hand, is properly included, since even though they may have been torn loose before the sinking, they became lost only after the barge sank.) Therefore, the total damages for which Prudential and the tug will be deemed equally liable are $71,348.10 (or $121,283.47 less the amounts specified above). In light of these findings and conclusions, judgment will be entered in behalf of plaintiff Champion and against Prudential for the full amount claimed, $109,843.01 plus interest from the time of the anticipated delivery of goods, July 24, 1981, at 12%, and costs. See Independent Bulk Transport, Inc. v. Vessel "Morania Abaco", 676 F.2d 23, 27 (2d Cir.1982). Judgment will also be entered in behalf of Prudential and against McAllister and American Towing for 50% of Prudential's recoverable damages in connection with salvaging and repairing the barge, or $35,674.05 (50% of $71,348.10). An award of interest on the amount due Prudential is inappropriate in view of the negligence of both Prudential and the tug which contributed to the sinking of the barge. Triangle Cement Corp. v. Towboat Cincinnati, 280 F. Supp. 73 (S.D.N.Y.1967). Prudential and the tug interests will share plaintiff's costs evenly. The Clerk will enter judgment accordingly. SO ORDERED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518363/	569 F. Supp. 1 (1983) UNITED STATES of America, Plaintiff, v. Peter A. TOMASELLO, Defendant. No. CIV-81-983. United States District Court, W.D. New York. May 5, 1983. Salvatore R. Martoche, U.S. Atty., Jack Penca, Asst. U.S. Atty., Buffalo, N.Y., for plaintiff. Philip B. Abramowitz, Buffalo, N.Y., for defendant. MEMORANDUM and ORDER ELFVIN, District Judge. Plaintiff seeks to reduce to judgment the unpaid balance of a one-hundred percent tax penalty assessed against the defendant taxpayer. The matter is currently pending before me on two separate motions to dismiss. The first, filed January 13, 1982, is based on defendant's contention that the Complaint is barred by the appropriate statute of limitations. The second, filed February 1, 1982, seeks to dismiss the Complaint for lack of personal jurisdiction and insufficiency of service of process and failure to state a claim upon which relief may be granted, as well as untimeliness. A motion by defendant to set aside a default entered against him by the Clerk is also implicit in the latter. For the reasons set out below, I have concluded that the default must be vacated and that the Complaint must be dismissed because it is time-barred. 2 The penalty assessment in dispute was made against the taxpayer July 8, 1974 pursuant to section 6672 of the Internal Revenue Code ("IRC") based on his failure, as a responsible person, to collect and pay over income tax withholding and Federal Insurance Contributions Act taxes for Elgin Concrete, Inc. for the third and fourth quarters of 1972.[1] The amount of the assessment was $24,681.22, of which $23,605.86 remains unpaid. Defendant filed a petition in bankruptcy September 24, 1973. The first meeting of creditors was held October 29, 1973 and defendant was discharged from his debts January 17, 1974. The bankruptcy estate was formally closed October 24, 1975. Defendant had previously filed an action, CIV-81-193E, to enjoin plaintiff's collection of the penalty assessment on the grounds that such collection was barred by the statute of limitations. However, in a Memorandum and Order entered June 12, 1981, I dismissed that action for lack of jurisdiction under section 7421 of the IRC. See, Tomasello v. United States, 81-2 U.S. T.C. ¶ 9510. Plaintiff commenced this action by filing its Complaint November 18, 1981. Service of the Summons and Complaint was effected November 30, 1981 by delivery of copies thereof to defendant's wife. Inasmuch as defendant failed to answer or otherwise appear in the action within the required time period, the Clerk entered a default against him January 13, 1982. Turning initially to defendant's motion to vacate the default, I find that defendant has demonstrated good cause for such relief under Fed.R.Civ.P. rule 55(c). Plaintiff will not be unduly prejudiced by a setting aside of the default and (as discussed more fully below) defendant has a meritorious defense to the action. See, Meehan v. Snow, 652 F.2d 274, 277 (2d Cir.1981) (per curiam). Therefore, defendant's motion to set aside the default entered by the Clerk January 13, 1982 is hereby ORDERED granted.[2] I must also deal with the preliminary matter of service of process before addressing the statute of limitations question. Defendant challenges the sufficiency of service accomplished by delivery of copies of the Summons and Complaint to his wife on the grounds that he and his wife were and are separated and that the address where service was effected was not and is not his usual place of abode. Then, he contends that service on his wife was not proper under Fed.R.Civ.P. rule 4(d) and that the Complaint should be dismissed under Fed.R.Civ.P. rule 12(b)(4) and 12(b)(5). Defendant raised defenses based on lack of personal jurisdiction, insufficiency of process and insufficiency of service of process in his second but not in his first motion to dismiss. His failure to assert such defenses in his first motion to dismiss constitutes a waiver thereof. Fed.R.Civ.P. rule 12(h). The statute of limitations question raised by defendant's motions concerns the effect of the bankruptcy proceedings on the six-year statute of limitations for the collection of tax assessments established by section 6502 of the IRC.[3] Although the Complaint in this action was filed more than seven 3 years after the penalty assessment was made, plaintiff relies on two separate tolling provisions, section 6503(b) of the IRC and section 11(f) of the Bankruptcy Act of 1898 (former 11 U.S.C. § 29(f)), to support its contention that the Complaint is timely. Section 6503(b) of the IRC provides: "The period of limitations or collection after assessment prescribed in section 6502 shall be suspended for the period the assets of the taxpayer are in the control or custody of the court in any proceeding before any court of the United States or of any State or of the District of Columbia, and for 6 months thereafter." Judicial interpretation of section 6503(b) has produced a substantial split of authority concerning the duration of the suspension of the limitations period set by section 6502 which arises when the taxpayer files a petition in bankruptcy. In United States v. Malkin, 317 F. Supp. 612 (E.D.N.Y.1970), the court held that the limitations period under section 6502 is tolled until the bankruptcy case is formally closed. The court reasoned that the assets of the taxpayer are in the control or custody of the bankruptcy within the meaning of section 6503(b) from the time the petition is filed until the referee signs an order closing the estate. United States v. Malkin, supra, at 616, n. 9. If Malkin was to be applied in this case, the statute of limitations under section 6502 would not have begun to run until six months after the bankruptcy estate was formally closed, inasmuch as the assessment was made during the pendency of the bankruptcy proceedings. Thus, the limitations period would expire six years and six months after October 24, 1975, or April 24, 1982. Under Malkin, the institution of this action would therefore be timely. However, Malkin does not appear to have been followed by any other court which has interpreted section 6503(b). In United States v. Verlinsky, 459 F.2d 1085 (5th Cir. 1972), a case arising under identical circumstances as Malkin, the United States Court of Appeals for the Fifth Circuit expressly rejected Malkin and held that the suspension of the limitations period under section 6503(b) operates until six months after the taxpayer's debts are discharged, not after the bankruptcy estate is formally closed. The court reasoned that, once the taxpayer's debts were discharged, the taxpayer lost all interest in assets in the custody of the bankruptcy court. The court also noted that the purpose of section 6503(b) is to toll the limitations period during the time when the government would be unable to collect the tax assessment because the taxpayer did not have control or custody of his property. United States v. Verlinsky, supra, at 1087. Because the taxpayer was subject to suit, levy and execution on debts which were not discharged as of the date of the discharge, suspending the statute of limitations until the bankruptcy estate was formally closed would unduly "delay the hour when [the taxpayer] could finally divorce himself from his former holdings and debts." Id., at 1088. Verlinsky has been followed by at least one other court in this circuit. U.S. v. Levasseur, 80-1 U.S.T.C. ¶ 9349 (D.Vt.1980). If Verlinsky were to be applied in this case, the Complaint would be untimely, inasmuch as the limitations period would have been tolled until six months after the date of discharge i.e., until July 17, 1974. Thus, under Verlinsky, the statute of limitations would have expired July 17, 1980. The United States Court of Appeals for the Ninth Circuit has also refused to follow Malkin's holding, but has construed section 6503(b) differently than did the Fifth Circuit in Verlinsky. In McAuley v. United States, 525 F.2d 1108 (9th Cir.1975), the court held that section 6503(b) tolls the limitations period set by section 6502 for one year after the first meeting of creditors relating to the bankruptcy proceedings. The court in McAuley agreed with Verlinsky that Malkin would toll the statute of limitations "for unjustifiably long periods" because the government would not be prevented from collecting the assessment during the entire course of the bankruptcy 4 proceedings. McAuley v. United States, supra, at 1112-13.[4] Focusing on the particular obstacles to the government's attempts to collect tax assessments which are posed by the bankruptcy proceeding, the McAuley court indicated that the government's collection efforts are primarily limited by dividing the taxpayer's property into exempt and nonexempt estates, and the filing of creditors' claims against the estate. McAuley v. United States, supra, at 1113. It noted that creditors' claims must usually be filed within six months after the first creditors' meeting and that suspending the limitations period during this time would permit the government to evaluate its rights in comparison to other creditors and also allow the taxpayer to contest the tax assessment. Id., at 1114. Therefore, the court construed section 6503(b) to mean that the assets of the taxpayer are no longer in the control or custody of the bankruptcy court after the time for the filing of claims by creditors has passed. Accordingly, the court held that the statute of limitations set by section 6502 is suspended until six months after the first meeting of creditors, and for an additional six-month period as provided by section 6503(b). The court suggested that its interpretation of section 6503(b) was "more realistic" than Verlinsky's. McAuley has been followed in United States v. Turner, 625 F.2d 328 (9th Cir. 1980), United States v. McPhilamy, 82-1 U.S.T.C. ¶ 9815 (W.D.Va.1981), and United States v. Copley, 508 F. Supp. 110 (E.D.Mo. 1980). Under McAuley, the Complaint in this action would be time-barred. The six-year limitations period set by section 6502 would have begun to run one year after October 29, 1973 and so would have expired October 29, 1980. In order to decide whether the Complaint in this action is timely by reason of the toll created by section 6503(b) of the IRC, I need only decide whether to adhere to Malkin's interpretation thereof; under either Verlinsky or McAuley, plaintiff's action is time-barred. Plaintiff has argued that the limitations period under section 6502 should be tolled during the entire course of the bankruptcy proceedings, as the court in Malkin held, because the government can then await the payment of claims (including its tax claims) out of the estate. Plaintiff argues that, if the limitations period resumes running either six months after the taxpayer's debts are discharged or one year after the first meeting of creditors (events which are likely to occur long before the bankruptcy estate is formally closed), the government may be pressured into attempting to gain recovery out of the taxpayer's exempt or after-acquired assets. The answer to this contention is provided by McAuley, which noted that under section 6502(a) of the IRC the taxpayer may agree to suspend the running of the limitations period. McAuley v. United States, supra, at 1114. If the taxpayer wishes to avoid immediate payment of the tax assessment, he may simply agree to prolong the limitations period. If the taxpayer chooses to keep the statute running, he can do so and thereby force the government to seek recovery out of his exempt or after-acquired property. After all, the basic purpose of the statute of limitations is to pressure the government to collect its taxes within a specified period of time. Plaintiff's interpretation of section 6503(b) would defeat this purpose without any countervailing justification. Therefore, for the 5 reasons set forth in McAuley and Verlinsky, I decline to follow Malkin.[5] I therefore turn to plaintiff's alternative contention that the Complaint is timely under section 11(f) of the Bankruptcy Act of 1898, which provided: "The operation of any statute of limitations of the United States or of any State, affecting the debts of a bankrupt provable under this title, shall be suspended during the period from the date of the filing of the petition in bankruptcy * * * (3) until thirty days after the dismissal of the bankruptcy proceedings * * ." (Former 11 U.S.C. § 29(f).) Plaintiff contends that, under section 11(f) of the Bankruptcy Act, the limitations period under section 6502 of the IRC was tolled until thirty days after the bankruptcy estate was formally closed i.e., until November 23, 1975. Therefore, plaintiff argues that the limitations period expired November 23, 1981 and that its Complaint, filed five days prior thereto, was timely. None of the cases discussed above considered the application of section 11(f) of the Bankruptcy Act in lieu of section 6503(b) of the IRC in determining the duration of the suspension of the limitations period for the collection of a tax assessment arising when the taxpayer files or has filed a petition in bankruptcy. It appears, however, that section 11(f) is inapplicable for the purpose of making such a determination. Section 6503(b) of the IRC is a specific legislative enactment applicable to the situation in which the taxpayer's assets are in the custody or control of a court, such as in connection with bankruptcy proceedings. Section 11(f) of the Bankruptcy Act is a more general statutory provision which does not specifically apply to claims for taxes. Therefore section 6503(b) of the IRC, rather than section 11(f) of the Bankruptcy Act, must be applied to determine the timeliness of the Complaint herein. See, e.g., Busic v. United States, 446 U.S. 398, 406, 100 S. Ct. 1747, 1753, 64 L. Ed. 2d 381 (1980) ("a more specific statute will be given precedence over a more general one, regardless of their temporal sequence.") Based on the foregoing discussion, defendant's motion to dismiss the Complaint is hereby ORDERED granted on the grounds that it is barred by the statute of limitations. NOTES [1] Section 6672 provides: "Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over. * " [2] It appears that the default entered by the Clerk was not proper to begin with, inasmuch as defendant's first motion to dismiss was filed at 8:31 a.m. on January 13, 1982, and the default was entered at 4:20 p.m. the same day. Thus, at the time default was entered, defendant had in fact appeared to defend the action. [3] Section 6502(a) provides that a tax assessment "may be collected by levy or by a proceeding in court, but only if the levy is made or the proceeding begun (1) within 6 years after the assessment of the tax * ." There is no dispute that the assessment itself was timely under section 6501. [4] The court further elaborated this point by stating: "Another ground for rejecting the government's theory is that there is no reason to stay the running of the period of limitations for the entire bankruptcy proceeding. The legislative history of the 1966 Federal Tax Lien Act makes clear that the justification for staying the running of the period of limitations is that collection efforts are hindered by bankruptcy. * * But as to the bankruptcy estate, tax claims have priority, * * * and as to the bankrupt's exempt property the government may collect from it despite the pendency of the bankruptcy proceeding. * * Since collection is not hindered, at least by the above considerations, there is no need to stay the statute of limitations." McAuley v. United States, supra, at 1113. [5] I dismissed the taxpayer's suit in CIV-81-193 because Malkin sufficiently supported the government's position that the taxpayer had failed to satisfy the requisites for maintenance of an action to enjoin the collection of taxes established in Enochs v. Williams Packing Co., 370 U.S. 1, 82 S. Ct. 1125, 8 L. Ed. 2d 292 (1962), and Bob Jones University v. Simon, 416 U.S. 725, 94 S. Ct. 2038, 40 L. Ed. 2d 496 (1974). My dismissal of the taxpayer's suit to enjoin collection of the assessment involved herein does not, of course, constitute an adherence to Malkin's substantive holding.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518372/	453 Pa. 15 (1973) Commonwealth v. Ware, Appellant. Supreme Court of Pennsylvania. Submitted April 23, 1973. July 2, 1973. 16 Before JONES, C.J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ. Benjamin A. Katz, for appellant. Joseph C. Murray and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee. OPINION BY MR. JUSTICE EAGEN, July 2, 1973: This is an appeal from the judgment of sentence imposed on the appellant, Marvin Ware, after he was found guilty of voluntary manslaughter in a trial before a judge, sitting without a jury. The prosecution emanated from a fatal stabbing in Philadelphia. The principal contentions on appeal are: 17 (1) the evidence was insufficient to establish beyond a reasonable doubt Ware committed the stabbing; and (2) assuming the Commonwealth's evidence was sufficient to connect Ware with the stabbing then it also established Ware acted in self-defense, and, hence, the homicide was excusable. In evaluating the merits of the foregoing contentions, it is fundamental the record must be read in the light most favorable to the Commonwealth. Commonwealth v. Miller, 445 Pa. 282, 284 A.2d 739 (1971), and Commonwealth v. Frazier, 411 Pa. 195, 191 A.2d 369 (1963). So read, the record discloses the following facts: Ware was in a "speakeasy" at 152 N. Franklin Street in Philadelphia when one Julius McDonald, after telling a friend he was going to kill Ware, entered and proceeded to orally abuse Ware for remarks the latter allegedly made about McDonald's girl friend. When Ware admitted making the remarks, McDonald became incensed, pushed Ware down on a sofa and threatened to kill him. Fearing a disturbance, the proprietress requested both men to leave. Before leaving, McDonald turned to Ware and said, "You wait until I get back". After leaving the premises, McDonald stood on the front sidewalk "cussing" and calling for Ware to come out. Ware exited shortly thereafter, but before leaving he borrowed a pocket knife with a three and one-half inch blade from a female friend who was present. Once outside Ware ignored McDonald and began a conversation with some friends on the sidewalk. McDonald then walked to the opposite side of the street and secured a thick stick, returned to where Ware was standing and struck him once over the head with the stick. A third party then grabbed the stick from McDonald and threw it into the street. The blow immobilized Ware for about three minutes. 18 After the above incident, McDonald started walking away from the scene on the opposite side of the street, and Ware retrieved the stick from the street and proceeded to pursue him. McDonald saw Ware coming and picked up a trash can with which he succeeded in warding off about ten blows Ware made toward him with the stick. The combatants then discarded the stick and trash can and began a fist fight which turned into a wrestling match. During the wrestling Ware was observed "reaching over" McDonald and making several downward movements with his hand towards the back of McDonald while the latter was trying to "catch his hand". Blood was then seen coming from the back of McDonald's head. An eyewitness then moved in and saw a knife in Ware's hand and tried to disarm him. Ware turned on this third party and said, "Come on, I'll cut you too". Onlookers then proceeded to help McDonald into a nearby automobile to transport him to a hospital. McDonald was bleeding from the head and back. Ware approached the vehicle indicating he wanted to continue the altercation, and when one of those present attempted to intervene, Ware threatened to cut him too. A medical examination at the hospital disclosed McDonald suffered from one stab wound in the abdomen; five stab wounds in the back between the shoulder blades; one stab wound in the back of the head; plus several cuts on the hands and arms. He died from the wounds three days later. That the foregoing facts are sufficient to establish beyond a reasonable doubt Ware inflicted the stab wounds which caused McDonald's death is clear. The mere fact that none of the witnesses who testified in court saw a knife in Ware's hand during the moments he and McDonald were engaged in the wrestling is not enough to upset the conviction. The fact that Ware inflicted 19 the stab wounds may be proven by circumstantial evidence. Commonwealth v. Frazier, supra. The circumstantial evidence instantly was more than ample to establish this fact. The claim the Commonwealth's evidence established Ware acted in self-defense is likewise devoid of merit. The conditions which must be satisfied to successfully invoke the defense of self-defense were delineated in Commonwealth v. Johnston, 438 Pa. 485, 263 A.2d 376 (1970), and more recently repeated in Commonwealth v. Daniels, 451 Pa. 163, 301 A.2d 841 (1973). One of these conditions is the slayer must have been free from fault in provoking or continuing the difficulty which resulted in the killing. This condition was not satisfied here. Finally, it is urged the sentence imposed by the court, two to five years imprisonment, was "austere, unrealistic and cruel". This, too, is without merit. See Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971); Commonwealth v. Cox, 441 Pa. 64, 270 A.2d 207 (1970), and Commonwealth v. Lee, 450 Pa. 152, 299 A.2d 640 (1973). Judgment affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518599/	214 A.2d 891 (1965) William A. CALISE v. Dorothy F. CALISE. Ex. No. 10710. Supreme Court of Rhode Island. December 10, 1965. Votolato & Votolato, Arthur N. Votolato, Arthur N. Votolato, Jr., for petitioner. Kirshenbaum & Kirshenbaum, Isidore Kirshenbaum, Alfred Factor, for respondent. ROBERTS, J. This is a husband's petition for a divorce from bed and board, alleging extreme cruelty as the ground therefore. Thereafter the respondent wife brought a cross petition for an absolute divorce, alleging extreme cruelty, gross misconduct, and desertion. When the cause opened for hearing before a justice of the family court, the petitioner's oral motion to discontinue his petition was denied upon objection thereto by the respondent. 892 After the hearing was concluded, the court entered a decision denying the petition of the husband and granting the cross petition of the wife on the ground of extreme cruelty and therein awarding custody of the children of the parties to the wife. The case is before this court on the petitioner's bill of exceptions to the decision of the family court. The petitioner contends, first, that the trial justice erred in denying his oral motion to discontinue his petition. We have examined the record and find therein that no exception was taken to the ruling of the trial justice denying the motion to discontinue, and for that reason we conclude that this issue is not before us. The petitioner questions also whether the evidence adduced supports either the finding of the court that he was guilty of extreme cruelty or that respondent was free from fault on her own part. As we understand it, this is to argue that the trial justice, in making such findings, was clearly wrong in that he overlooked or misconceived material evidence relevant to those issues. The burden of showing that the trial justice was clearly wrong is on petitioner, it being well settled that a decision of a justice of the family court reached after consideration of conflicting evidence will not be disturbed in this court on review unless it is clearly wrong. Lannon v. Lannon, 86 R.I. 451, 136 A.2d 608, 137 A.2d 529. This argument is clearly without merit as it relates to the finding of the court that the husband had engaged in conduct that constituted extreme cruelty. The trial justice in his decision points out that petitioner had made several specific physical attacks upon her, at least one of which was corroborated by a disinterested witness. There is also testimony of a medical witness that respondent's health had been impaired as a result of these physical assaults. In this state of the evidence we are constrained to conclude that the finding of the trial justice on the issue of petitioner's cruelty is supported by the evidence. There remains petitioner's contention that there is no evidence to support the finding of the trial justice that respondent was on her own part free from fault repugnant to the marriage covenant or provocative of domestic discord. The trial justice expressly found that respondent had shown freedom from fault on her own part sufficient to entitle her to relief. After stating therein that "Respondent's conduct towards and reflections upon her mother-in-law were to say the least uncommendable," he went on to conclude that "Nevertheless the court finds that respondent's conduct in this regard does not excuse the extreme reactions of petitioner and that her conduct was not such as to preclude her from relief." It is clear from the finding and conclusion of law thus stated that the trial justice neither overlooked nor misconceived any of the evidence adduced during trial on the question of respondent's freedom from fault. The petitioner really argues that the conceded fact of respondent's hostility toward his mother and her denial of sexual access to him over long periods provoked his abusive treatment of her and, in law, is conduct provocative of domestic discord within the meaning thereof as stated in Lannon v. Lannon, supra. We cannot agree. If it be conceded that demonstrations of incompatibility with in-laws may give rise to emotional distress and foster dissension between spouses, it is nevertheless our opinion that for such hostility of itself to amount to conduct provocative of domestic discord, it must of necessity be extreme in its character. There is in the instant record nothing that discloses such extreme incidents of personal hostility between respondent and her mother-in-law, and, as the trial justice expressly found, her conduct, while not commendable, did not suffice to justify petitioner's reactions. In short, having found that the conduct of petitioner constituting extreme cruelty was 893 not justified by the conduct of respondent, it is our opinion that the trial justice's grant of relief to her was proper. Conduct provocative of domestic discord as found by this court is something more than mere family controversy and usually is such as to disclose that it would be inequitable to grant relief by way of divorce to one who by his own conduct has provoked or induced conduct in the other spouse that breaches the marital covenant. Sargent v. Sargent, 93 R.I. 359. In Lannon v. Lannon, supra, we held such conduct proved where it was established that the petitioning wife had consorted frequently with other men, remained away from home until the early hours of the morning, and had physically assaulted her husband when he objected to her conduct. In Salvatore v. Salvatore, 61 R.I. 109, the respondent, who had been consorting persistently with another woman, was found to be guilty of such provocative conduct, and in Botelho v. Botelho, 96 R.I. 379, 192 A.2d 5, a petitioning wife's persistence in keeping company with another man over her husband's objection, found by the trial justice to prove "more than a mere friendship," was sufficient to bar her from relief. The contention of the petitioner as to the provocative character of the respondent's denial of sexual access to him as constituting fault sufficient to bar her from relief is without merit. There is conflicting testimony as to the sexual relations of the parties, on the basis of which the trial justice well could find, as he did, that the wife's refusal of access to her husband was justified. If that be so, it could not amount to conduct provocative of domestic discord. From our examination of the record we are persuaded that the trial justice, in concluding that the respondent had established her freedom from fault in a degree sufficient to warrant relief, by clear implication was finding that her refusal of sexual access was justified. In such circumstances this court will not disturb the findings of a justice of the family court. All of the petitioner's exceptions briefed and argued are overruled, and the case is remitted to the family court for further proceedings. CONDON, C. J., and POWERS, J., not participating.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518602/	214 A.2d 459 (1965) Carl A. and Edith M. PAGE v. LYLE H. HALL, INC. No. 1183. Supreme Court of Vermont. Windham. November 8, 1965. 460 John S. Burgess and Ralph Chapman, Brattleboro, for plaintiffs. John & O'Connor, Brattleboro, for defendants. Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ. BARNEY, Justice. The effect of the following language used in a mortgage deed is the key to this controversy: Mortgagors shall have the right to cut timber from the premises on and after July 1, 1960 provided that they are not in default under any terms or conditions hereof. Acting under this provision, the mortgagors sold certain standing timber on the premises to the defendant corporation in May, 1962, by a quitclaim deed which limited the right to cut to two years. When a letter sent in early June, 1962, did not halt the timber operation, the plaintiffs, as mortgagees, brought this equitable action in September, 1962, to enjoin the defendant's cutting. During the hearing, the chancellor admitted parol evidence to explain the construction put on the language quoted above by the mortgagors and mortgagees at the time the transaction took place. The defendant objected vigorously, and its opposition to that ruling and its consequences is the principal theme of its appeal. The generalized justification for resort to parol evidence in such circumstances is easy to state. Where a written instrument contains demonstrable ambiguities, evidence may be received of acts and expressions of the parties indicative of the construction they understood between themselves should be placed on the language used. Otherwise, written instruments are enforced according to their express terms. Randall v. Clifford, 119 Vt. 216, 223, 122 A.2d 833. As that case suggests, at pages 224-225, 122 A.2d 833, mis-rendering of terms is corrected by particular proceedings for reformation, not 461 during actions for enforcement. It also, at page 224, 122 A.2d 833, points out some of the policy bases for forbidding parol modification of plain written language in suits on the instrument. As between the parties, it avoids the problem of a subsequent change in intention by one or both of them. Further, third parties, later entering the transaction, have some assurance that they may rely on the express terms of the original agreement. On the other hand, the presence of ambiguous language is itself a warning to third parties, and a problem which can only be resolved by resort to the stated purpose of the parties concurrent with the transaction. But the ease of stating the rule, admitting parol evidence to clear up ambiguous language, is overbalanced by the difficulty of determining when it applies. In this case, the quoted term of the mortgage appears clear, explicit and unambiguous. It gives to the mortgagors personally the right to cut the timber on the property after a given date if they are not in default under the mortgage. Any enlargement or abridgement of that right comes about as a matter of interpretation, either deriving from the construction the law itself puts on the term in the circumstances, or from the intention of the parties at the time, if such evidence is properly admissible. The defendant takes the position, first, that the clause is clearly unambiguous and requires no interpretation through oral testimony. It then retreats from the position when it proposes to establish assignability of the right to cut timber from testimony introduced by it that Carl Page, at the time, gave the mortgagors the names of several lumber dealers to whom they could sell. Laying aside, for the moment, the right of the chancellor to accept or reject this testimony, which was challenged by other evidence, it should be stated that the defendant cannot have the benefit of two opposing positions as to this one clause. It is either ambiguous, or it is not. It is open to explanation and interpretation from contemporaneous conversations, or it is not. If it is so open, both sides are entitled to present such explanatory evidence. If the clause in question is taken as unambiguous, the right to cut timber after July 1, although not otherwise restricted, has no language making it transferable or assignable. It is important to recognize that this is not a sale or conveyance of standing timber, such as was the case in Deerfield Lumber Co. v. Lyman, 89 Vt. 201, 210-211, 94 A. 837, or Ross v. Hamilton, 95 Vt. 234, 236, 113 A. 781. Our cases distinguish between agreements intended to transfer title to standing timber, like Dutton v. Davis, 103 Vt. 450, 452, 156 A. 531, and agreements merely giving rise to a right to cut. Norton v. Green, 94 Vt. 295, 298, 111 A. 458. Such a right to cut is a personal right in the nature of a license, and is unassignable unless expressly made so. McCastle v. Scanlon, 337 Mich. 122, 59 N.W.2d 114, 121. See also 130 A.L.R. 1263; 54 C.J.S. Logs and Logging § 29e, p. 731. This means, of course, that any attempt on the part of the mortgagors to transfer or assign this right to cut must fail, and the quitclaim deed to the defendant, being unfounded, is of no force and effect. This is the very same consequence that the chancellor reached below by admitting explanatory testimony. With both sides urging the conversations between the contracting parties in support of their own particular interpretations of the clause, the chancellor adopted the view that a latent ambiguity existed. He went on to hear their evidence, taking into account the situations of the mortgagors and mortgagees at the time agreement was reached, and also the ends sought to be achieved by the transaction. The mortgage context is important. The critical phrase deals with 462 the right to cut timber on the mortgaged premises. Mortgages also deal with such rights by legal implication. There is a general duty on both mortgagees and mortgagors, in connection with possession of the premises, not to do anything to the property impairing its adequacy as security. 59 C.J.S. Mortgages § 294, p. 368. Neither can legally commit waste. Whiting v. Adams, 66 Vt. 679, 687, 30 A. 32, 25 L.R. A. 598. This general doctrine was specifically held to apply to the cutting of timber in Hastings v. Perry, 20 Vt. 272, 278-280. Both mortgagor and mortgagee, however, are generally conceded to have implied authority to cut such timber as is reasonably needed on the premises for fuel, repairs or other related purposes as is justified by good husbandry. Whiting v. Adams, supra, 66 Vt. 679, 687, 30 A. 32; 36 Am.Jr. Mortgages § 359, p. 870. It is not necessary to be exhaustive. What has already been said sufficiently demonstrates the latent equivocal nature of the phrase involved. Forslund v. Cookman, 125 Vt. 112, 114, 211 A.2d 190, 192. Certainly it cannot be determined from that language whether the expressed cutting right was limited, on the one hand, to timber to be cut for use on the place, or, on the other hand, to the sale of standing timber without reservation; nor is it clear whether or not the right to cut was conditioned upon the application of any proceeds on the indebtedness. There was ambiguity, and the reception of parol evidence was not in error. Goodenough v. McGregor, 107 Vt. 524, 528, 181 A. 287; Aldrich v. Griffith, 66 Vt. 390, 398, 29 A. 376. The chancellor found from the evidence that the parties contemplated that the standing timber would be part of the security of the mortgage, and that its loss would impair that security. He found that the mortgagors had the right to cut timber for farm use, or for proceeds to be applied on the mortgage, if they were not in default. The defendant contends that there is no support for these findings. The evidence favoring the plaintiffs reveals that the mortgaged premises were sold to the Hatches, the mortgagors, for $33,500. This price included livestock, stored hay, bulk tank, truck, machinery, tools and other personalty. The bare farm was worth about $18,000. The Hatches, as buyers, employed an attorney to draft the documents of sale. The closing was disrupted by a hospitalizing heart spell of Carl Page's, and the papers were prepared without his participation. The attorney was apparently not informed that there was substantial personal property involved, besides the real estate, for no chattel mortgage was prepared. The Hatches were to make a down payment of $13,500, and the balance, evidenced by a note for $20,000, was to be secured by the mortgage. At the time of closing the full down payment was not available, so the Hatches paid $10,000, and gave a separate additional note for $3,500, to be paid on or before July 1, 1960. The real estate mortgage was the only security for everything, including this note. The provision in that mortgage now before us was inserted by the attorney employed by the Hatches. The testimony of Warren Hatch suggested that he understood that he had complete freedom to dispose of the timber once he had paid up the $3,500 note, but he also conceded that Carl Page had told him he wanted timber proceeds to apply on the mortgage indebtedness. The testimony of Carl Page was that the timber was understood to be part of the security for the mortgage. The attorney involved testified that the clause was based on a notation from his conference about the transaction which said that the mortgagor was not to "take lumber or material off the place until July 1, 1960." No proceeds from the sale of the standing timber were applied on the mortgage, nor does the record show any tender of such payment for the benefit of the mortgagee in any manner. 463 From all the evidence, including the testimony noted, the chancellor concluded that the right to the timber given by the mortgage term was intended to be subject to the application of the proceeds to the indebtedness. With supporting evidence present, this Court will affirm his finding of fact. Cross-Abbott v. Howard's Inc., 124 Vt. 439, 445, 207 A.2d 134. This result is strengthened by the rule construing a doubtful provision against the party responsible for drafting it. Stratton v. Cartmell, 114 Vt. 191, 194, 42 A.2d 419. Further, such a reading is consistent with the security nature of the transaction and the prohibitions against waste and destruction of the mortgage security which the law implies. Hastings v. Perry, supra, 20 Vt. 272, 280. We are mindful that this suit is not one between the parties to the instrument involved. The law tends to protect the interests of innocent third parties who may be deceived by the appearances of a transaction. But the defendant here was on some notice as soon as it discovered that the premises were mortgaged, since that bound it to make inquiry of the plaintiff as to the status of the obligation. Jeffers v. Pease, 74 Vt. 215, 217, 52 A. 422. The evidence and findings are undisputed that the defendant did do so, and was specifically warned that the plaintiffs claimed an interest in the standing timber. All of this it knew before it purchased the timber from the Hatches, yet it went ahead. It stands now in no better position with respect to the interpretation of the mortgage provision than the mortgagors. Hastings v. Perry, supra, 20 Vt. 272, 280. In the circumstances, at least a tender of the timber purchase money to the plaintiffs was essential to give the Hatch quitclaim deed any worth at all. According to the facts, neither the Hatches nor the defendant took any such step to fulfill such a requirement of the mortgage, nor took any to protect themselves from its operation. Consequently, the chancellor rightly determined that, on this basis, the attempted conveyance was void and of no effect. The chancellor went on to rule that this timber provision was a reservation, rather than an exception, to which he applied the rule of law that a reservation without words of inheritance is personal to the grantor. This is where the defendant abandoned its objection to the introduction of parol evidence, arguing that the conversations between mortgagor and mortgagee, at the time of closing, demonstrated that the right to cut timber was intended to be assignable. The inconsistency of this position has already been pointed out and needs no further comment. In any event, with the invalidity of the attempted sale already abundantly established, this issue becomes immaterial, and no error appears. Decree affirmed. SHANGRAW, Justice (concurring in the result). I concur in the result on the basis that the timber cutting rights was a license personal to the mortgagors and not transferable to the defendant. It is, however, my view that the language in the mortgage deed relating to such rights, and quoted in the opinion, is unambiguous, and that its interpretation through oral testimony was error. The mere fact that parties have differed as to the meaning of the terms of a contract does not make it ambiguous. Otherwise, the mere assertion of ambiguity by a party would result in a ruling of ambiguity. This is not the law. It is the duty of the courts to construe contracts, not to make them for parties. Town of Troy v. American *464 Fidelity Co., 120 Vt. 410, 418, 143 A.2d 469, and cases cited. Contracts are to be construed according to the sense and meaning of the terms which the parties have used, and if they are plain and unambiguous, their terms are to be taken in their plain, ordinary and popular sense. Abraham v. Insurance Company of North America, 117 Vt. 75, 79, 84 A.2d 670, 29 A.L.R. 2d 783; Johnson v. Hardware Mutual Casualty Co., 108 Vt. 269, 277, 187 A. 788; Town of Troy v. American Fidelity Co., supra, 120 Vt. p. 418, 143 A.2d 469. Further, as stated in In re Robinson's Will, 101 Vt. 464, 467, 144 A. 457, 458, 75 A.L.R. 59, "It is the settled doctrine of our decisions that where the terms of a writing, whatever its character, are plain and unambiguous, there is no room for construction and it is to be given effect according to its own language." Moreover, having determined that the timber cutting rights were of a personal nature and not transferable by the mortgagors, it is of no consequence whether the mortgage provisions relating thereto are ambiguous or unambiguous.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518608/	639 S.W.2d 420 (1982) STATE of Missouri, Plaintiff-Respondent, v. Robert ELLIS, Defendant-Appellant. No. WD 32998. Missouri Court of Appeals, Western District. September 7, 1982. William Barvick, Jefferson City, for defendant-appellant. John Ashcroft, Atty. Gen., and Melinda Corbin, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent. Before KENNEDY, P. J., and WASSERSTROM and MANFORD, JJ. 421 KENNEDY, Presiding Judge. Defendant Robert Ellis, upon a jury trial in which he and his co-defendant Tunstall were jointly tried, was convicted of first-degree assault, § 565.050, RSMo 1978. In accordance with the verdict of the jury he was sentenced to 12 years' imprisonment. He appeals to this court, alleging that the trial court erred in failing to instruct upon second-degree assault, § 565.060, RSMo 1978. We agree with the appellant in this contention and reverse the judgment. He raises a second point which we deny, but which we rule upon for the guidance of court and counsel upon retrial. Inmate Dennis Binion of the Missouri State Penitentiary at Jefferson City, at about 7:40 o'clock a. m. on May 20, 1980, was seen by witness Pendleton hurrying out of the eating area, blood on the back of his shirt. Witness Pendleton, a cook employed at the prison, went back to the place where Binion had been eating. He found blood on the wall, the floor and the table. In a garbage can in the area where the pots and pans were washed, he found a length of galvanized pipe. The pipe was introduced in evidence at the trial but has not been deposited here. We do not know its dimensions. Guard McKinney found Binion "hanging on the control center gate", bleeding from the back of his head. McKinney took Binion to the hospital. He was found to have nine wounds, seven of them puncture wounds and two of them lacerations. The puncture wounds were superficial, as was a half-inch laceration on the elbow. They were treated by cleaning with Physohex solution, a strong soap, and with antibiotic ointment. One of the wounds was a laceration of the scalp. It was one and a half inches in length and was closed by suturing. Defendant Robert Ellis and one Willie Tunstall, also inmates of the prison, were interrogated and gave statements to officers of the penitentiary. They said that Binion had been "pressing" Tunstall to engage in homosexual activity. The day before the assault Ellis and Tunstall had secured an ice pick type of weapon, 10 or 12 inches long with a taped handle, and a length of pipe, and had secreted them in the kitchen. On the morning of the assault, as Binion was eating breakfast, the two attacked him from behind. Tunstall hit him on the head with the pipe, while defendant Ellis wielded the knife. On the trial of the case, defendant Ellis testified that Binion had been making homosexual advances to him as well as to Tunstall. Asked if he was trying to kill Binion, defendant replied: "... I couldn't say yes to that, and I wouldn't say no to that. I wouldn't have been mad if I had killed him. I felt he was wrong.... (I)t was more or less to let him know, you know, to quit harassing.... To let him know to back off of us". Tunstall's own testimony on the trial was that Ellis attacked Binion and when Binion began to overpower Ellis, that he, Tunstall, hit him with the pipe. He acknowledged that he had placed the pipe in the kitchen area on the day before. He explained his purpose in doing so as being to "back up" Ellis, and later said it was for the purpose of self-defense. He testified that he had withdrawn from the plan to attack Binion, but he came to Ellis's aid to prevent Ellis's being hurt or killed when he began to get the worst of it. Binion did not testify. Defendants Ellis and Tunstall were jointly charged and jointly tried. 1. Omission of second-degree assault instruction; "physical injury" (second-degree assault) as opposed to "serious physical injury" (first-degree assault). The attorney general says that the appellant's "Point Relied On" is insufficient to comply with Rule 84.04(d), in that it does not state wherein and why the actions or rulings of the trial court are claimed to be erroneous. We find appellant's point to be sufficiently stated and we review the point upon its merits. Defendant's contention that the court erred in submitting first-degree assault only, and in failing to instruct upon second-degree 422 assault, is based upon two arguments. First, he claims that it is a permissible construction of the evidence that the injury caused or attempted was a "physical injury" rather than a "serious physical injury". If the evidence does permit such construction, the defendant would be entitled to a second-degree assault instruction. Section 565.060, RSMo 1978, which defines second-degree assault, says: 1. A person commits the crime of assault in the second degree if: (1) He knowingly causes or attempts to cause physical injury to another person by means of a deadly weapon or dangerous instrument.... On the other hand, if the evidence justified only the "serious physical injury" submission, then first-degree assault was the only offense which required submission, § 565.050, RSMo 1978, and the court did not err in omitting the second-degree assault instruction. The terms "physical injury" and "serious physical injury" are defined by § 556.061, RSMo 1978. Subsection 24 defines "serious physical injury" as one that "creates a substantial risk of death". A mere "physical injury" means "physical pain, illness, or any impairment of physical condition", subsection 19. It comes down to the question, then, whether the assault described in our statement of facts, viewed most favorably to the second-degree assault submission, State v. Smith, 518 S.W.2d 665, 669 (Mo. App.1975), necessarily created a substantial risk of death ... or whether the jury might reasonably have regarded it as a mere "physical injury" not creating a "substantial risk of death". The term "substantial risk of death" is not defined in the statute. It is one of those terms which has already been reduced to its lowest common denominator. A "substantial risk" is less than a likelihood or a probability. It is only a "risk". The modifier "substantial" eliminates those injuries which might in some instances cause death, yet the risk thereof is less than substantial. We cannot say as a matter of law that the evidence in this case showed only a "serious physical injury", that is, one creating a "substantial risk of death". If we were fact finders we might so find the facts. But we are not fact finders and we cannot say that reasonable men might not find that the injury caused or attempted was merely a "physical injury", creating no "substantial risk of death". The medical evidence, submitted by the state, does not settle the question. Dr. Baker said of the wounds, "I think they possibly could (cause death or serious physical injury), especially the trauma to the head could have." Neither do the use of the ice pick weapon and the length of pipe necessarily indicate a purpose to cause serious physical injury. The second-degree assault statute, § 565.060.1, which we have quoted above, includes among the definitions of the crime a knowing causing or a knowing attempt to cause (mere) physical injury "by means of a deadly weapon or dangerous instrument". It contemplates that one may make a second-degree assault, involving a mere "physical injury" with a lethal weapon.[1] As a general proposition, a trial court should resolve all doubts upon the evidence in favor of instructing on the lower degree of the crime, leaving it to the jury 423 to decide which of two or more grades of an offense, if any, the defendant is guilty. 23A C.J.S., Criminal Law, § 1288 (1961). Sometimes as in the present case a fine line separates the higher from the lower degree of the offense. The defendant is not prejudiced by the submission of the lower degree of the offense, though a finely milled analysis of the evidence might lead to the conclusion that it supported the submission only of the higher degree of the offense. State v. Cox, 508 S.W.2d 716, 723-724 (Mo.App. 1974).[2] A very similar question was before the Supreme Court of Wisconsin in Flores v. State, 76 Wis. 2d 50, 250 N.W.2d 720. The weapon used by the defendant upon the victim in that case was a pool cue stick. The victim lost a natural tooth, lost another tooth, had a cut which required 30 stitches, was unconscious for more than an hour, was in intensive care two and a half days and in the hospital nine days. The question was whether the jury was correctly instructed only upon aggravated battery for having caused great bodily harm, or whether the defendant was entitled to an instruction upon the lesser-included offense of battery, a crime made out by proof of mere "bodily harm".[3] Justice Hansen, in language which is quite appropriate to the case we are dealing with, wrote: If the issue now before us were whether a jury could have found the defendant guilty of aggravated battery for having caused "serious bodily injury," we would unhesitatingly uphold the conviction. However we find the La Barge [v. State] [74 Wis. 2d 327, 246 N.W.2d 794 (1976)] holding as strongly suggestive that in the present case a jury question was presented as to whether "bodily harm" or "great bodily harm" was caused by the injuries inflicted. The lesser-included offense of battery should have been submitted to the finder of facthere the jury. We do not hold that there is some near-automatic right to have the lesser-included offense of battery submitted to the jury whenever the crime charged is that of aggravated battery. We do note that where that is the issue raised it is not easy as a matter of law to draw the line of demarcation between "great bodily harm," meaning "serious injury," and "bodily harm," meaning "physical injury" or "impairment of physical condition." * * * * * However in many cases the situation will fall into a twilight zone. That is, whether the resultant injury constituted "bodily harm" or "great bodily harm" becomes as it was in La Barge an issue of fact for the jury to resolve. Where that 424 either-or situation is present, a defendant's request for submission of battery as a lesser-included offense is to be granted, not denied. 250 N.W.2d at 724. 2. "Extreme emotional disturbance" of defendant as requiring second-degree assault submission. Defendant argues that a second aspect of the evidence required a submission of the second-degree assault instruction. That is that the defendant was acting "under the influence of extreme emotional disturbance for which there is a reasonable explanation or excuse". § 565.060.1(3)(a), RSMo 1978. Such emotional disturbance may be shown in mitigation, not in justification, of the offense and if present it reduces a first-degree assault to second-degree assault. Defendant Ellis claims that he was entitled to have submitted to the jury the extreme emotional disturbance hypothesis. The new criminal code introduces the "extreme emotional disturbance" concept into our law, a concept unknown to the common law. It has not been defined in any of our cases. The language originates in the Model Penal Code of the American Law Institute, relating to the grades of homicide. It contains the following comment: Sec. 210.3 of the Model Code continues a modified and substantially enlarged version of the rule of provocation. Subsection (1)(b) punishes as manslaughter "homicide which would otherwise be murder (if it) is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse." ... (I)t casts the issue in phrases that have no common-law antecedents and hence no accumulated doctrinal content. Where there is evidence of extreme mental or emotional disturbance, it is for the trier of fact to decide, in light of all the circumstances of the case, whether there exists a reasonable explanation or excuse for the actor's mental condition. This issue cannot be resolved successfully by categorization of conduct. It must be confronted directly on the facts of each case. By restating the ultimate inquiry, Subsection (1)(b) avoids the strictures of early precedents and puts the issue in the terms in which it should be considered. This development reflects the trend of many modern decisions to abandon preconceived notions of what constitutes adequate provocation and to submit that question to the jury's deliberation. Model Penal Code and Commentaries, § 210.3. Commentary at 60-61 (1980). The instructions which have been formulated to submit this issue to the jury, MAI-CR2d 19.02 and 19.03, carry out the idea that the issue in a proper case is to be submitted to the jury in broad general terms rather than upon a hypothesization of the operative facts. However, there is in this case a complete absence of any evidence that either Ellis or Tunstall was acting under the influence of "extreme emotional disturbance". The attack upon Binion was calculated. Preparation had been made the day before by secreting the weapons in the area where the victim would be found. In his brief in this court, Ellis attempts to show his extreme emotional disturbance by his fear of homosexual rape. However, there is no evidence of any danger of homosexual rape. The most that the evidence shows on that score is that Binion was attempting to persuade Tunstall and Ellis to engage in homosexual acts with him, and that his advances had become annoying to them. Appellant points out that Binion was a much larger and stronger man, but, once again, there was no threat of an assault upon Ellis or Tunstall. All the evidence shows that the assault was coolly and deliberately planned and executed, and that neither Ellis nor Tunstall was in anything approaching a state of "extreme emotional disturbance". 3. Admitting confession into evidence before proof of corpus delicti. Another point of appellant's will be noted for the guidance of court and counsel on another trial. The appellant complains 425 that the trial court erred in admitting into evidence his confession to prison officers before the state had proven the corpus delicti of the offense. Missouri courts have long held that, as long as the essential elements of the crime are proved by the end of the trial, "it is not essential that independent proof of the corpus delicti come first in the order of proof". State v. Anderson, 384 S.W.2d 591, 605 (Mo. banc 1964). See also State v. Madison, 459 S.W.2d 291, 293 (Mo.1970); State v. Deyo, 358 S.W.2d 816, 819 (Mo.1962); State v. Page, 580 S.W.2d 315, 318-319 (Mo.App. 1979); State v. Easley, 515 S.W.2d 600, 602 (Mo.App.1974). In this case, the independent evidence corroborated the defendant's admission and considered together, both sufficiently established the corpus delicti. State v. Page, 580 S.W.2d at 319. Defendant's point is denied. The conviction is reversed and the case is remanded for a new trial. All concur. NOTES [1] Comment on § 211.1, Assault, of the Model Penal Code says with respect to attempting or causing "bodily injury" (as opposed to "serious bodily injury") with a deadly weapon: These are assaults with a deadly weapon where it does not appear that there was intent to do serious bodily harm or the type of recklessness referred to in paragraph (a). It would be unnecessarily harsh, for example, to subject a person to ten years maximum imprisonment for a mere attempt to inflict minor injury with a knife or club. In particular circumstances the use of such implements would often support an inference of purpose or recklessness leading to a second degree conviction; and use of a firearm to shoot at the victim would almost certainly lead to that conclusion. But a judgment as to the seriousness of the actor's ill-will should not follow automatically from classification of the implement he employs, when the imposition of very heavy sentences is the issue. Model Penal Code § 211.1 note on status of section (Proposed Official Draft 1962). [2] Until State v. Olson, infra, the defendant did not have to request a lesser-included offense instruction. If the evidence warranted such an instruction, the trial court was required to give it and failure to do so was error. § 546.070(4), RSMo 1978; Rule 28.02(e); State v. King, 588 S.W.2d 147, 151-152 (Mo.App.1979). Now, the Supreme Court, in State v. Olson, 636 S.W.2d 318, 322-323 (Mo. banc 1982), has decided that a defendant must request the lesser-included offense instruction (except in homicide cases) in order to complain on appeal for failure to give such instruction. We take it, however, that this procedural change has prospective application only and is therefore inapplicable here. State v. Walker, 616 S.W.2d 48, 49 (Mo. banc 1981), transferred to 616 S.W.2d 89 (Mo. App.1981); State v. Shafer, 609 S.W.2d 153, 157 (Mo. banc 1980); Barker v. St. Louis County, 340 Mo. 986, 104 S.W.2d 371, 377 (Mo. 1937). See also Keltner v. Keltner, 589 S.W.2d 235, 239 (Mo. banc 1979) (generally undesirable to give retroactive effect to overruling decisions except under the most compelling circumstances); Rudolph v. Wagner Electric Corp., 586 F.2d 90, 92 (8th Cir. 1978), cert. denied, 441 U.S. 924, 99 S. Ct. 2033, 60 L. Ed. 2d 397 (1979). (Factors to determine if retroactive application is warranted: whether question was one of first impression or clearly foreshadowed; whether the purpose of the rule will be aided or retarded by retroactivity; whether any inequities will result from retroactivity). [3] That phrase "great bodily harm" was defined by the Wisconsin statute to mean: "... bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss of impairment of the function of any bodily injury or organ or other serious bodily injury." (Emphasis supplied.) "Bodily harm" was defined by statute to mean "... physical pain or injury, illness, or any impairment of physical condition." Flores v. State, 250 N.W.2d at 722.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518627/	240 Md. 353 (1965) 214 A.2d 139 HUSK v. WARDEN OF MARYLAND PENITENTIARY [App. No. 43, September Term, 1965.] Court of Appeals of Maryland. Decided November 15, 1965. Before PRESCOTT, C.J., and HAMMOND, HORNEY, OPPENHEIMER and McWILLIAMS, JJ. HAMMOND, J., delivered the opinion of the Court. On September 25, 1962, petitioner was tried and convicted of larceny and conspiracy by Judge Carter sitting without a jury in the Criminal Court of Baltimore, and was sentenced to eight years on the first count and eight years on the second count, the sentences to run concurrently. These judgments and sentences were affirmed by this Court in Husk v. State, 233 Md. 192. On January 25, 1965, petitioner sought relief under the Post Conviction Procedure Act. A hearing was held before Judge Harris in open court on March 30, 1965, with petitioner represented by court-appointed counsel. His application was denied. In the lower court petitioner made three points. The first contention is that there was insufficient evidence to convict, because, he says, he was convicted on the uncorroborated testimony of an accomplice. The insufficiency of the evidence is not of itself ground for post conviction relief, Young v. Warden, 233 Md. 596, and, in any event, this matter was fully considered and finally determined by this Court in petitioner's direct appeal, Husk v. State, supra, and it has repeatedly been held that questions previously and finally litigated may not be raised in post conviction proceedings. Jackson v. Warden, 236 355 Md. 634; Bryant v. Warden, 235 Md. 658; Code (1965 Supp.), Art. 27, § 645A (a) and (b). In his application to this Court for leave to appeal, the petitioner directs our attention to Hunt v. Warden, Maryland Penitentiary, 335 F.2d 936 (1964), for the proposition that the question of sufficiency of the evidence can be raised on post conviction proceedings. Hunt clearly did not so hold. The case deals with the question of exhaustion of State remedies as a prerequisite to post conviction relief in the federal courts and did not attempt to list those matters which are reviewable by the Maryland Court of Appeals in its post conviction procedure following a final determination on direct appeal. The petitioner next contended that the accomplice should not have been allowed to testify or to implicate petitioner because she was at that time under indictment for perjury. Petitioner is mistaken as to the facts. Miss LeBrun, the accomplice, was indicted for conspiracy, larceny, and for making a false report of the theft involved. The indictment for the false report arose from the fact that the accomplice originally told the police a story which completely absolved her from guilt, and then recanted. The petitioner erroneously correlates an indictment for a false report with "false statement" and concludes that this means perjury. The fact that she was indicted for false report or even that she was guilty of that crime does not disqualify her as a witness. Lastly, the petitioner made the contention to the lower court " * * that the court knowingly and intentionally used perjury testimony which was not stricken from the record." While petitioner uses the word "court," it seems clear from the record, as Judge Harris seemed to assume, that the allegation actually meant that the prosecution knowingly used perjured testimony. The petitioner filed a letter following his hearing wherein he stated that the "State" deliberately and intentionally used perjured testimony. At the hearing, when petitioner had the opportunity to prove his contentions, he admitted to Judge Harris that he had no idea whether the State had any knowledge of the accomplice's alleged perjury. There would have to be a showing that a state officer had a part in procuring the testimony or, at the time of trial, knew it to be perjured 356 in order for there to be post conviction relief. Dyson v. Warden, 233 Md. 630; Fisher v. Warden, 225 Md. 642. Petitioner's contention comes down to the claim that his conviction was the result of false testimony. This goes to credibility and so to the sufficiency of the evidence, Davis v. Warden, 235 Md. 639, a matter not available for post conviction relief. In his application to this Court, petitioner makes additional miscellaneous contentions none of which warrants relief. He states generally that he was denied due process of law as guaranteed by the Federal and State constitutions and the Maryland Bill of Rights. A general conclusional allegation of a denial of constitutional rights without supporting facts is not a ground for relief under the Post Conviction Procedure Act. Reeves v. Warden, 231 Md. 613. Petitioner next states that the alleged accomplice was jointly indicted with the petitioner for larceny and conspiracy, but offers no reason why this was improper under the circumstances. Petitioner next says that all three defendants were tried together despite the fact that petitioner and codefendant Watts pleaded not guilty and LeBrun pleaded guilty. The docket reveals that LeBrun's case was submitted under plea to Judge Carter who imposed sentence on her six days after hearing and deciding Husk's and Watts' case. Petitioner's final contention, which he makes in the form of a supplement to his written application for leave to appeal, states that under the holding of Schowgurow v. State, 240 Md. 121, his conviction must be wiped out and that he is entitled to a new trial. We stated in that case: " * * that the proper administration of justice requires, and we accordingly hold, that the legal principle enunciated in this case shall not apply retroactively, except for convictions which have not become final before rendition of this opinion." Petitioner's conviction became final well before Schowgurow, and so he does not come within the ambit of that case. Application denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518622/	240 Md. 357 (1965) 214 A.2d 319 GUE, ET UX. v. MITCHELL, ET UX. [No. 456, September Term, 1964.] Court of Appeals of Maryland. Decided November 16, 1965. The cause was argued before PRESCOTT, C.J., and HAMMOND, HORNEY, MARBURY and BARNES, JJ. Marvin Ellin for appellants. Ernest S. Cookerly for appellees. MARBURY, J., delivered the opinion of the Court. On November 14, 1963, James L. Gue and Willie B. Gue, his wife, appellants, filed a bill of complaint against Roy C. Mitchell and Mildred E. Mitchell, his wife, appellees, for injunctive relief, rescission of a contract of sale of a dairy farm, and an accounting and damages in the Circuit Court for Kent County. The appellants alleged that misrepresentation was practiced upon them, that they were entitled to have the contract rescinded, the monies returned and appropriate damages awarded for the misrepresentation. On September 21, 1964, after a lengthy trial Judge Rasin filed a memorandum opinion in which he found that no fraud or other unfair and unconscionable methods were proven to have been used in order to induce the Gues to purchase the Mitchell dairy farm, and ordered the bill of complaint dismissed, with costs. The sole question involved in this appeal is whether the lower court was correct in its action. Up until the summer of 1960 James Gue was a successful dairy farmer, renting a farm located in Montgomery and Howard Counties on which he maintained a herd of one hundred dairy cattle, together with milking and other equipment. As of 359 June 1960 Gue's cattle and equipment were worth approximately $60,000 and were subject to a chattel mortgage of some $13,000. At about this time Mr. Gue became interested in purchasing a farm in Kent County to which he could transfer his dairy operation. He contracted George E. Scheeler, a Kent County realtor, who showed Gue several farms including one owned by the Mitchells. This farm was located near Kennedyville and comprised some three hundred and sixty-one acres, for which the owners were asking $125,000. Mr. Gue made an initial offer which was rejected. Subsequent negotiations, however, resulted in a written contract for the sale of the farm. This contract was drawn by Mr. William Dunbar Gould, the Mitchells' attorney, and was signed by the Mitchells and Gues in Mr. Gould's office on August 8, 1960. The contract provided, in pertinent part, for a purchase price of $114,000 to the Mitchells, with $5,000 being paid at the time of the signing of the contract, $14,000 to be paid at the time of settlement, and the balance to be paid by way of a purchase money mortgage from the buyers to the sellers, in the amount of $95,000. Gue also agreed to pay Scheeler's commission of $6,000. Settlement date under this contract was to be September 15, 1960. At the time the contract was signed, Mr. Gould, representing the Mitchells, was the only attorney present. Prior to the settlement date difficulties developed for Gue because the creditors who held the chattel mortgages on his cattle and dairy equipment were not inclined to allow him to move his mortgaged property to Kent County until the chattel mortgages were paid. Adding to Gue's difficulties was the fact that he did not have sufficient funds to make the promised down payment of $14,000. Gue made these problems known to Mitchell, and upon the suggestion of Mr. Scheeler, further negotiations were entered into and they resulted in Mr. Mitchell promising to finance the purchase of the farm by taking a chattel mortgage on Gue's personal property in the amount of $22,300, $13,300 of which was to be used to pay off the chattel mortgages and $9,000 to be used toward the down payment under a second contract to be subsequently executed. Mr. Gould incorporated these provisions concerning the chattel mortgages into a new contract which also contained the same provisions 360 as the August 8 contract. September 23, 1960, at Mr. Gould's office was agreed upon as the time and place for the execution of the new contract. The appellants claim that this contract, like the contract of August 8, 1960, was induced by fraud, inasmuch as the signing of these contracts was based upon Mr. Mitchell's unfulfilled promise to finance Gue's building of a milking parlor. While no mention is made of such a promise in either of the contracts, it was allegedly orally made by Mr. Mitchell prior to the execution of the August 8 contract, and reiterated in front of Mrs. Gue after it was discovered that the Gues would not be able to go through with the original contract. All parties agree that at the time of the sale, the farm buildings did not meet federal and state health requirements applicable to dairy farms, and that eventual compliance with such standards was necessary in order for Gue to sell milk for public consumption. On September 23, 1960, the new settlement date, all parties appeared at the appointed place, but on this occasion the Gues were accompanied by their lawyer, Mr. Calvin Sanders, of Rockville, Maryland. According to Mr. Gue's testimony, Sanders was advised of Mr. Mitchell's oral promise prior to the execution of the contract dated August 8. After Mr. Gould had read aloud the new contract to the assembled parties, the Gues and Sanders retired to a separate room to discuss the terms of the contract. Having been assured by their attorney that "everything was all right," the Gues proceeded to sign the contract. Following the settlement, Gue made monthly payments of $801.70 on the farm mortgage and $431.33 on the chattel mortgage. The sole source of income out of which the monthly payments were made was from the sale of milk by the Gues to the Greenhill Dairy of Wilmington, Delaware, which paid them $5 a hundredweight for the milk. The dairy, however, gave the Gues a total of nine months in which to erect a suitable milking parlor which would comply with the applicable federal and state health regulations. In June of 1961 Greenhill Dairy finally stopped buying milk from Gue because of the latter's failure to build a milking parlor. Gue was then forced to sell his milk to the Ranier Dairy of 361 Bridgeton, New Jersey, which agreed to buy the milk albeit at a lower ($4 a hundredweight) price and on condition that a suitable milking parlor be erected immediately. As a result of the lower price he was receiving for milk, Gue's monthly payments to Mitchell became irregular and inadequate. By December 1962 Gue's troubles were at their apex: Mitchell was threatening to foreclose his mortgages because Gue was behind in his payments, Ranier Dairy had given advance notice that it would discontinue purchase of milk unless proper milking facilities were erected immediately, Gue had exhausted all possibilities of obtaining financing for the milking parlor, and a prospective purchaser, Charles Nau of Harford County, had informed him that he would be unable to make an immediate purchase of the property. Finally, on December 28, 1962, the Gues and the Mitchells executed a release agreement which was prepared by Mr. Gould following Mitchell's instructions, whereby each party released the other from any further obligation; the Mitchells repossessed the farm and retained all the money received from the Gues, pursuant to the contract of sale of September 23, 1960; and the Gues were relieved of their obligations under that contract, with the exception of the chattel mortgage on the personal property of the Gues. Before they signed the release the Gues, who were not represented by an attorney, heard Mr. Gould read the agreement and requested that one slight change be made. The requested change was made and the release was executed by all parties, part of the agreement being that the Gues were to be permitted to remain on the farm until March 31, 1963, at a rental of $461.70 per month. During the trial Mr. Mitchell emphatically denied that he had made any promises regarding the proposed milking parlor prior to the September 23, 1960, signing of the contract. He stated that in May or June 1961 he did promise to help the Gues obtain financing but that he never promised to finance the milking parlor personally. In an effort to fulfill his promise to help the Gues find financing he testified that he contacted several lending institutions, but none of these efforts were successful. Mitchell admitted that he knew a milking parlor had to be erected in order for the farm to be used for dairy purposes, 362 but was also aware of the common practice of allowing a grace period before the standards had to be met. He testified that Gue had represented to him that he was personally going to do the carpentry work on the milking parlor, and since he knew that Gue had once been a carpenter, he believed him. The appellees called two witnesses, Mr. Scheeler and Mr. Gould, who testified that if the alleged promises to build a milking parlor were made during the negotiations leading up to the sale they were totally unaware of them. In addition, Mr. Gould testified that he consulted with Mr. Sanders about the terms of the contract which was signed in September and that Mr. Sanders made no mention of any such oral promise. The appellants both testified that Mr. Mitchell had promised to finance their building of a milking parlor and absent that promise they would never have purchased the farm. The testimony of James Gue indicated that this promise, which was so heavily relied upon, was extremely vague, in that Mr. Mitchell did not mention either the cost or the specific type of milking parlor he was promising to finance. One of the appellants' key witnesses was Jeptha Harwood, who was employed by a manufacturer of dairy equipment. As a service to a prospective customer, Harwood's company provided Gue with building plans for the construction of a milking parlor. Harwood testified that in July of 1961 he attended a meeting of Messrs. Gue and Mitchell and that it was his understanding from that meeting that Mitchell was going to personally finance the building of a $10,000 to $12,000 milking parlor conforming to the plans furnished by his company. Another witness called by the Gues, Edwin Fry, testified that Gue expressed an interest in erecting a milking parlor similar to the one costing some $24,000 located on the Fry farm. Fry recalled that he had talked to Mitchell about this also but that Mitchell indicated that he thought a much more modest structure would suffice. His understanding from these conversations was that Mitchell had agreed only to help in obtaining financing for a milking parlor and had not agreed to finance the building personally. Although called by the Gues, the testimony of Fry would seem to substantiate Mitchell's version of the promise rather than the Gues'. 363 The appellants have assumed an extremely arduous task in attempting to set aside a written contract for fraud. This Court has repeatedly set forth standards for setting aside an executed contract on the basis of fraud. In Ranstead v. Allen, 85 Md. 482, 486, 37 A. 15, we adopted the language of the Supreme Court of the United States in Atlantic Delaine Company v. James, 94 U.S. 207: `that cancelling an executed contract is an exertion of the most extraordinary power of a Court of Equity. The power ought not to be exercised except in a clear case, and never for alleged fraud, unless the fraud be made clearly to appear, never for alleged false representations, unless their falsity is certainly proved, and unless the complainant has been deceived and injured by them." In many other cases this Court has asserted that this extraordinary remedy of nullifying contracts should not be granted except in unusual cases, and that a much higher degree of proof is required than in the ordinary civil case where a decision is based upon a mere preponderance of evidence. Boring v. Jungers, 222 Md. 458, 160 A.2d 780; Schmidt v. Millhauser, 212 Md. 585, 130 A.2d 572; Cox v. Tayman, 182 Md. 74, 32 A.2d 368; McShane v. Hazelhurst, 50 Md. 107. The lower court cited all of the above cases and concluded that the appellants did not come close to meeting the standards of proof required to show fraud in this state. We agree. In the instant case except for the completely self serving testimony of the appellants, there is nothing to show that Mr. Mitchell made any promise not contained in the written contract executed on September 23, 1960. The only individual besides the contracting parties, who the Gues claim had prior knowledge of Mitchell's oral promise to build a milking parlor was Mr. Calvin Sanders, whom the appellants deliberately did not choose to call as a witness. This being the case, the appellants could scarcely have been successful in the lower court even if the ordinary rule as to preponderance of evidence had been applied. On this appeal and in their argument before the lower court the appellants pointed out that it is extremely difficult to prove 364 by positive and direct testimony the allegations made in the case and they therefore asked the lower court and this Court to infer from the unhappy results of the transactions between the parties that there must have been a design on the part of the appellees to have the Gues execute the various documents, intentionally leaving out of the contract of September 23, 1960, the oral promise to finance the milking parlor. The appellants contend that fraud can be inferred from the following selected facts: Gue knew that the existing milking facilities were inadequate and that he could not sell milk without adequate facilities; he knew that he could not obtain adequate credit in order to build his own milking parlor with the Mitchell chattel and farm mortgages extant; he knew that he could not meet the mortgage payments to the Mitchells unless he sold his milk; Mr. Mitchell knew all these facts also; therefore Mitchell must have promised Gue that he would personally finance the milking parlor or Gue would never have signed the contract. Unfortunately for the appellants the conclusion drawn from the above facts was not inescapable. Aside from the release there were, moreover, other facts from which inferences could be drawn and which were succinctly stated by Judge Rasin in his opinion: "If the Court is to draw conclusions from inferences, it seems more logical to conclude that such an agreement was not made in the various negotiations for the purchase of this farm. If such conversation had taken place, then, without having heard from Mr. Sanders, the attorney for the Gues who appeared with them at the settlement in Mr. Gould's office, the Court infers that such provisions would have been written into the contract as a specific condition of this purchase. The Court also infers from Mr. Gue's inability to recite any specific details of the agreement to furnish financing with respect to the amount of money involved, the terms of payment, etc., that no such agreement was made prior to September 23, 1960. Furthermore, the fact that the Plaintiffs had a private conference with their attorney, Mr. Sanders, before they executed the contract of September 23, 1960, had time to *365 consider all aspects of the purchase, and were asked by their attorney whether they still wanted to go through with the transaction, indicates to the Court no fraud or unfair and unconscionable methods used in obtaining the execution of the contract. There is no direct testimony, nor indeed is it otherwise suggested that the Defendants had a definite plan or purpose to have Contracts of Sale prepared to intentionally leave out such an important provision as the Plaintiffs now ascribe to the alleged promise on the part of Mr. Mitchell to furnish financing for the construction of a milking parlor." In their brief and in oral argument the appellants lay great stress on the fact that Mr. Gue was a man of extremely limited intelligence who would have great difficulty in conducting his business affairs. At this point a discussion of Mr. Gue's intelligence and business acumen would be irrelevant because, as already indicated, the lower court in its opinion, with which we are in accord, concluded that the appellants did not adequately prove the misrepresentation upon which they relied. Decree affirmed, with costs.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518676/	953 S.W.2d 579 (1997) 330 Ark. 250 Gerald BARBER et al., Appellants, v. Mike WATSON, Appellee. No. 97-77. Supreme Court of Arkansas. October 16, 1997. 580 Donn Mixon, Jonesboro, for Appellants. Charles M. Mooney, Sr., Jonesboro, for Appellee. CORBIN, Justice. Appellants, some seventy residents of two subdivisions in Jonesboro, appeal the judgment of the Craighead County Chancery Court, Western District, denying their request for an injunction to prevent Appellee Mike Watson from constructing multi-family dwellings in one of the subdivisions. Appellants raise three points on appeal, which require us to construe a deed and bills of assurance; hence, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(a)(16). We find no error and affirm. We can discern the following information from the abstract provided. Appellants are owners and residents of thirty-six and one-half lots in Meadow Lark Acres Subdivision ("Meadow Lark") and twelve lots in Meadow Lark Acres Extended Subdivision ("Meadow Lark Extended"), which are contiguous subdivisions comprised of fifty-two lots and twenty lots, respectively. Appellee is the owner of Lots 1, 2, 3, and 4 of Block H in Meadow Lark Extended. Meadow Lark was established and a bill of assurance was executed on November 15, 1967. Meadow Lark Extended was established and a bill of assurance was executed on November 18, 1968. The original bill of assurance for Meadow Lark Extended prohibited the construction of any building other than single-family dwellings except on certain lots, including the 581 four lots owned by Appellee. On those excepted lots, the bill of assurance provided that apartments may be constructed with the approval of the developers. An amended bill of assurance for Meadow Lark Extended was executed on August 18, 1995, prohibiting any construction of apartment buildings in Meadow Lark Extended. The amended bill of assurance was signed by owners of lots in both subdivisions. Appellants filed this suit seeking an injunction from the chancery court prohibiting Appellee's planned construction of two additional apartment units on an already existing fourplex situated on one of his lots in Meadow Lark Extended. Appellants claimed that the area was not equipped to handle the increased traffic, that Appellee's plan violated all the bills of assurance, and that the use of the land for apartments would materially and substantially lessen the use and enjoyment of Appellants' property, thus constituting a nuisance. Appellee filed a motion to dismiss the complaint on the grounds that some of the plaintiffs lacked standing to bring the action because they did not live in or own property in Meadow Lark Extended, and that pursuant to ARCP Rule 12(b)(6), the complaint failed to state facts upon which relief could be granted. A hearing was conducted on the matter on July 9, 1996. A letter order was subsequently entered by the chancellor granting Appellee's motion to dismiss. On the issue of standing, the chancellor agreed with Appellee that those plaintiffs who lived in or owned property in Meadow Lark had no standing to challenge any proposed construction in Meadow Lark Extended. The chancellor did find, however, that the amended bill of assurance had been signed by a majority of the lot owners of Meadow Lark Extended. Notwithstanding that finding, the chancellor concluded that the amended bill of assurance was not valid because it had not been timely executed in accordance with the procedure set out in the original bill of assurance. Appellants now assert that the chancellor's findings and conclusions were erroneous. We disagree. We try chancery cases de novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996). In order to demonstrate that the chancellor's ruling was erroneous, Appellants must show that the trial court abused its discretion by making a judgment call that was arbitrary or groundless. Id. For the first point for reversal, Appellants assert that the trial court erred in finding that the amended bill of assurance was not timely executed. In order for us to determine whether the chancellor correctly interpreted the provisions of the original bill of assurance, we must consider the language of the document. The pertinent provisions, as abstracted, read: We, W.R. Kitterman and Esther Lea Kitterman, his wife, Alton D. Holmes and Maralyn Holmes, his wife, and B. Frank Hyneman and Marzee Ann Hyneman, his wife, are the owners of the property that we plat and designate as Meadow Lark Acres Extended Subdivision to Craighead County, Arkansas. No lots shall be used except for residential purposes and no building shall be erected other than a single-family dwelling except that a duplex dwelling may be permitted under certain restrictions and apartment buildings shall be permitted on Lots 1, 2, 3, and 4 of Block H of the subdivision, and certain other lots, with the approval of the developers herein. The covenants and the restrictions of the Bill of Assurance shall be binding for a period of 25 years from the date of recording, after which time the covenants and restrictions shall be automatically extended for successive periods of ten years unless an instrument signed by a majority of the owners has been recorded agreeing to change or to terminate the covenants and restrictions. The twenty-five-year period provided in the original bill of assurance would have expired in November 1993. The amended bill of assurance was not executed until August 18, 1995. The chancellor concluded that because Appellants had not executed the amended bill of assurance prior to the time the original bill of assurance had expired, the 582 provisions of the original bill of assurance were automatically extended for an additional ten years. The chancellor determined that the proper way to amend or terminate the original bill of assurance was for a majority of the owners to agree and then file the agreement of record to take effect at the time the original bill of assurance expired. Because the amended bill of assurance was not timely filed, the chancellor reasoned, the original bill of assurance, which allowed apartments on certain lots with the developers' approval, was still in effect at the time Appellants filed their complaint. We conclude the chancellor's interpretation was correct. Courts do not favor restrictions upon the use of land; if such restrictions exist, they must be clearly apparent. Holaday, 323 Ark. 522, 920 S.W.2d 4; McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988). The general rule governing the interpretation, application, and enforcement of restrictive covenants is the intention of the parties as shown by the covenant. Holaday, 323 Ark. 522, 920 S.W.2d 4. Where, however, the language of the restrictive covenant is clear and unambiguous, the parties will be confined to the meaning of the language employed, so long as the meaning does not defeat the plain and obvious purpose of the restriction. Id. (citing Hays v. Watson, 250 Ark. 589, 466 S.W.2d 272 (1971)). Where no general plan of development exists, restrictive covenants contained in a bill of assurance are not enforceable. McGuire, 297 Ark. 282, 761 S.W.2d 904. Appellants do not challenge that a general plan of development existed in the subdivisions. In White v. Lewis, 253 Ark. 476, 487 S.W.2d 615 (1972), this court was asked to interpret the amendment procedures set out in a bill of assurance very similar to the one in the present case. There, the bill of assurance provided in part: These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of twenty-five years from the date these covenants are recorded, after which said covenants shall be automatically extended for successive periods of 10 years unless an instrument signed by a majority of the owners of the lots has been recorded, agreeing to change said covenants in whole or in part. Id. at 478, 487 S.W.2d at 616. The appellants had filed an agreement to alter part of the bill of assurance, but the twenty-five-year period had not yet expired. The appellants argued that the language contained in the original bill of assurance pertaining to amendments or alterations of the bill was uncertain. This court disagreed, holding: When the recited provisions of the bill of assurance are read in toto we think the restriction and the provisions for waiver are unambiguous. In simple terms it is provided that the covenants shall be binding for a period of twenty-five years from date of recordation, after which they are automatically extended for successive periods of ten years, unless an instrument signed by a majority of the property owners is filed agreeing to a change in whole or in part. Id. at 478, 487 S.W.2d at 616. Here, we conclude that the language in the original bill of assurance for the Meadow Lark Extended subdivision was likewise clear and unambiguous. We conclude further that giving the language of the document its plain meaning does not defeat the plain and obvious purpose of the restrictions. Accordingly, we agree with the chancellor's determination that Appellants should have had the agreement, signed by a majority of the owners, filed of record before the expiration of the twenty-five-year period, reflecting that the amendment was to take effect as of the day of the original bill's expiration. That was not done in this case; hence, the amended bill of assurance was not valid. For the second point for reversal, Appellants argue that the trial court erred in refusing to find that Appellee's proposed plan to add two units onto an already existing fourplex located on Lot 2 was prohibited by the original bill of assurance for Meadow Lark Extended. Appellants contend that although the bill of assurance provided that apartments are permitted on Lot 2, they are only permitted with the approval of all of the 583 developers. Appellants contend that Appellee only secured the approval of Esther Lea Kitterman, signing on behalf of herself and her husband W.R. Kitterman, and failed to obtain the approval of the other developers. We do not reach the merits of this argument because it is not clear from the abstract that Appellants made this particular argument below or that the trial court ruled on the issue in its order. Where the abstract does not reflect that the argument, or any similar argument, was made in the trial court, we will not reach the merits of the argument on appeal. Betts v. Betts, 326 Ark. 544, 932 S.W.2d 336 (1996); Douthitt v. Douthitt, 326 Ark. 372, 930 S.W.2d 371 (1996). Nor will we turn to the record to decide such an issue. Reeves v. Hinkle, 326 Ark. 724, 934 S.W.2d 216 (1996). "It is critical that this court not be placed in a position of considering an issue for the first time on appeal." Id. at 727-28, 934 S.W.2d at 218. Here, the abstract reflects only that Appellants asserted in their amended complaint that "Mr. Watson's proposed construction violates all the Bills of Assurance[.]" There is no further indication in the abstract that Appellants made anything other than this vague assertion that Appellee's proposed plans violated the original bill of assurance. The abstract does not contain any argument by counsel on this point, nor does it demonstrate that the issue was addressed by the chancellor either during the hearing or in the order. For the final point for reversal, Appellants argue that the chancellor erred in refusing to admit into evidence a plat of the Meadow Lark subdivision. As with the previous point, we do not reach the merits of this argument because Appellants have failed to abstract the specific arguments made by them in support of the exhibit's admission. The abstract only reveals that Appellants offered the exhibit, that Appellee objected to its relevance, and that the trial court sustained the objection. Without the benefit of knowing Appellants' reasons for offering the exhibit, it is practically impossible for us to determine whether the trial court abused its discretion in denying its admission. Even though our review of this appeal is de novo, it is nonetheless limited to the record as abstracted. See Clardy v. Williams, 319 Ark. 275, 890 S.W.2d 276 (1995). Where the abstract fails to show the specific arguments made regarding the proffered evidence, we will not consider the argument on appeal. See Newton v. Chambliss, 316 Ark. 334, 871 S.W.2d 587 (1994). Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3036629/	United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 04-1563 ___________ Adonis Johnson, Sr., * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Unilever HPC USA, * * [UNPUBLISHED] Appellee. * ___________ Submitted: January 6, 2005 Filed: January 24, 2005 ___________ Before BYE, MELLOY, and COLLOTON, Circuit Judges. ___________ PER CURIAM. Adonis Johnson, Sr., appeals the adverse grant of summary judgment in his employment-discrimination action. The district court1 concluded Johnson’s complaint was barred by res judicata. Upon careful review of the record, we agree, for the reasons explained by the district court. Accordingly, we affirm. See 8th Cir. R. 47B. ______________________________ 1 The Honorable E. Richard Webber, United States District Judge for the Eastern District of Missouri.	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/1518471/	639 S.W.2d 854 (1982) STATE of Missouri, Plaintiff-Respondent, v. Leroy WALKER, Defendant-Appellant. STATE of Missouri, Plaintiff-Respondent, v. Albert SCHLEICHER, Defendant-Appellant. Nos. 43841, 43874. Missouri Court of Appeals, Eastern District, Division One. July 20, 1982. Motion for Rehearing and/or Transfer Denied September 17, 1982. 855 Tim Battern, Clayton, for Walker. James W. Whitney, Jr., Clayton, for Schleicher. John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent. STEWART, Presiding Judge. Leroy Walker and Albert Schleicher, as codefendants, were tried together and each was found guilty of the crimes of kidnapping, rape, and sodomy. Schleicher was also found guilty of the crime of attempted sodomy. Both defendants appeal from the judgment entered upon the jury verdict. The appeals have been consolidated. Each of the defendants contend that the trial court erred in: 1) admitting certain photographs into evidence; 2) denying their motions for discovery of the victim's records at a methadone center; 3) denying their motions for severance; 4) failing to give MAI-CR 2.36 prior to the testimony of a doctor who had examined the victim; and 5) overruling an objection to a comment made by the trial court during voir dire. In addition, defendant Walker urges us to reverse on the ground that the State failed in its proof because the victim's testimony was so contradictory as to require corroboration and that there was no corroborative evidence. He also claims that the court erred in striking two of the veniremen. Because defendant Walker attacks the sufficiency of the evidence, we shall first undertake a statement of the facts in the light most favorable to the State. State v. Petrechko, 486 S.W.2d 217 (Mo.1972). In the fall of 1979, prosecutrix was under treatment for drug addiction. She made daily visits from her home in High Ridge, 856 Missouri to the methadone clinic on Olive Street near Vandeventer Avenue in the City of St. Louis. On October 16, 1979, about noon, the prosecutrix was returning home from a visit to the clinic. She was driving south on Vandeventer Avenue when her car stalled on Vandeventer near Chouteau Avenue. While she was stalled, a pickup truck passed her. It turned around, came back and parked behind the stalled car. Defendant Schleicher got out of the truck and entered the passenger side of the stalled car. He said something about "getting" the prosecutrix. He ripped her blouse, pulled down her jeans and raped her. Another occupant of the truck let the air out of the left rear tire of the car she was driving. The driver of the truck then pushed the car forward causing damage to the car. Defendant Schleicher then dragged the prosecutrix from the car and put her in the back of the pickup truck. Walker drove and Schleicher got into the back of the truck and raped the prosecutrix again while she was kicking, screaming and hitting at Schleicher. The truck stopped in an alley and Schleicher went into a house. Prosecutrix was transferred to a blue automobile. When Schleicher returned, they drove off. The prosecutrix asked to get out of the car but was told that they were not through with her. Schleicher showed her some money and told her that he would give her $700.00 if she would not tell the police what happened. They drove to a house the first floor of which was occupied by Walker's sister with whom he was temporarily staying. The defendants took the prosecutrix into the house past Walker's sister, Sandra Diaz, and Jesse Valdez, her fiance, and into the bedroom occupied by Walker. The prosecutrix was introduced to the two persons in the house. They noted that prosecutrix appeared to be nervous or frightened. Walker told his sister to stay in the kitchen. He and Schleicher then took the prosecutrix in his bedroom and locked the door. At one time, prosecutrix came out of the bedroom and asked Ms. Diaz and Mr. Valdez their names and their address and telephone number. Walker came out of the bedroom and told the prosecutrix to get back in the room before she got hurt. After she went back into the room, Diaz and Valdez heard prosecutrix's voice begging to let her relax; to get off of her and saying "please quit." They heard prosecutrix scream four times and heard a thud that sounded like someone's head was hit against the headboard. Prosecutrix testified that when she went back in the room, defendants removed her clothes. Then defendants removed their clothing. She saw tattoos on both of them. They forced her to have intercourse with each of them in turn while she screamed and kicked. When she refused to perform an act of sodomy, Walker raised her head and struck it on the headboard. He also struck her across the face on two occasions. Under this compulsion she did as she was told. The defendants kept her there for a number of hours. When the three came out of the bedroom, the prosecutrix had blood on her face and her face was swollen and she limped. Schleicher went into the bathroom while Walker took prosecutrix to the automobile. When Walker went back into the house to see what was keeping Schleicher, the prosecutrix ran away. We shall develop other facts as necessary to the understanding of the issues as they are discussed. We consider first defendant Walker's contention that the court erred in failing to direct a verdict in his favor for the reason that prosecutrix's testimony was so contradictory and conflicting as to require corroboration in accordance with State v. Phillips, 585 S.W.2d 517 (Mo.App.1979). Prosecutrix's testimony in the case was lengthy. Much of this testimony was corroborated by a number of different witnesses. Witnesses heard the defendants order prosecutrix to disrobe, heard her plead with them to leave her alone, heard her scream 857 and heard what sounded like the thud of a head being struck against the headboard of a bed. Ms. Diaz obtained a bottle of douche for prosecutrix at Walker's orders. When prosecutrix came out of the bedroom, she was bleeding about her face, her face was swollen, she appeared to be frightened and when given the opportunity, she fled. Ms. Diaz also testified that Walker ordered her to clean up the mess in his bedroom where she found the bed to be "messed up." There was blood, vaseline stains and seminal stains on the sheet. Photographs corroborated the prosecutrix's testimony with respect to tattoos on the bodies of the defendants. There were also photographs that showed the injuries to prosecutrix's face. Inasmuch as there was more than adequate corroboration, we need not decide whether corroboration was necessary. See State v. Rogers, 583 S.W.2d 293 (Mo.App. 1979). Defendant Walker seeks a new trial based upon the action of the trial court in striking veniremen Schaeffer and Panhorst for cause. Defendant contends "that consideration of drug addiction is a legitimate criteria in weighing the testimony of witnesses and the exclusion of persons expressing general objections to drug addictions violates defendant's constitutional right to a full panel of qualified veniremen." During voir dire the State sought to determine whether the jurors would be prejudiced against the State's case because the prosecutrix was addicted to narcotics. Mr. Schaeffer stated that he did not believe that addiction was a disease. When asked if he could try the case fairly he said "I think so." Then he said that he had a "little bit" of hesitation about it and then said, "I really don't think I could be a fair juror in the case" because of prosecutrix's addiction. He said he was not sure he could give the prosecutrix's testimony any weight or credibility. When asked if he could be fair to "both sides" he answered "[n]o." During a long voir dire, Mr. Panhorst in effect said that he couldn't believe anyone who was drinking or was on drugs. Defendant Walker relies upon Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968) which held that exclusion of all members of a venire who have conscientious scruples against or who are opposed to capital punishment, but who did not state that they would automatically vote against the imposition of the death penalty irrespective of the evidence, was violative of the Sixth and Fourteenth Amendments to the Constitution of the United States in that it deprived defendant of an impartial jury panel and would deprive him of his life without due process of law. This opinion is probably more notable for what it does not hold. The court stressed that the case did not involve the right to challenge for cause when scruples against capital punishment would prevent the prospective juror from making an impartial decision as to the defendant's guilt. Further, it did not involve the right to exclude a juror who could never vote to impose or refuse to consider imposition of the death penalty. We are not faced with the problem presented in Witherspoon. Here the two members of the venire indicated that they could not enter into their duties with a fair and open mind. If it could be said that the answers of these persons raise a doubt as to their ability to be fair, such doubt is resolved in favor of the trial court's ruling. The trial court did not abuse its broad discretion in striking these veniremen. State v. Parris, 506 S.W.2d 345 (Mo.1974). The issues that follow are common to each of the defendants and will be consolidated for discussion. The defendants contend that the trial court erred in admitting four photographs into evidence. The photographs show the defendants in the nude and display tattoos on their bodies including the genitalia. Defendants contend that the probative value of the photographs was outweighed by the "prejudice and inflammation" resulting from admission of the photographs when defendants had conceded the issue of identification. 858 In this case the prosecutrix testified that the defendants had distinguishing marks on their bodies and she described the tattoos each had upon his body. She was then asked to identify the photographs of the defendants in the nude showing the tattoos described by her. The defendants objected and attempted to stipulate as to identity of the defendants and that they had such tattoos. The stipulation was rejected by the State. The admission of demonstrative evidence including photographs is a matter primarily within the discretion of the trial court. It is generally held that such evidence is admissible in a variety of circumstances among which are when it tends to identify the defendants or to corroborate the testimony of the party offering the evidence. State v. Ward, 569 S.W.2d 341, 345 (Mo. App.1978); State v. Huddleston, 462 S.W.2d 691 (Mo.1971). The photographs used here corroborated the testimony of prosecutrix and identified the defendants. In spite of the offer to stipulate, the defendants subsequently introduced evidence tending to establish an alibi and in final argument urged that there was reasonable doubt that the defendants were present at the time and place of the crime. Walker's counsel, in his argument, attacked the prosecutrix's identification testimony, calling attention to inconsistencies in her descriptions of defendants. The State has the heavy burden of proving defendant's guilt beyond a reasonable doubt and should not be unduly limited in the quantum of its proof. State v. Ward, supra at 345. This is especially true in this case. Even though defendants made a tenuous offer to stipulate that the defendants had the tattoos described by the prosecutrix, they vigorously attacked prosecutrix's credibility and her identification of the defendants. We have reviewed the photographs and find nothing gruesome or especially revolting in them; they served the purposes of identifying defendants as the perpetrators of the crimes and, as defendant Walker would require, to corroborate prosecutrix's testimony. State v. Ward, supra. Defendants contend that the court erred in denying their motions to compel the State to disclose records obtained by the State from the methadone clinic with respect to the prosecutrix. The methadone clinic is a part of a federal program to rehabilitate persons addicted to narcotics. The legislation governing the program provides that patient records shall be confidential provided, however, the patient may consent to release portions of the record and courts may, in appropriate circumstances, order disclosure. 21 U.S.C. § 1175 and 42 U.S.C. § 4582.[1] The disclosure of patient records is governed by regulations promulgated under authority of the above statutes. Under the regulations, a patient may execute a written consent to disclosure. 42 C.F.R. § 2.31. The regulations further provide that a person obtaining such records by consent of the patient may not redisclose the information to another without specific written consent. 42 C.F.R. § 2.32(b). The revelation of the information to another is a criminal offense. 21 U.S.C. § 1175(f); 42 U.S.C. § 4582(f). In appropriate circumstances, courts are empowered to authorize disclosure which would otherwise be prohibited. 21 U.S.C. § 1175(b)(2), (c) and 42 U.S.C. § 4582(b)(2), (c). The criteria required by the regulations for disclosure of a patient's records by court order are: (1) disclosure must be sought by using a fictitious name for the patient unless the patient consents to the use of his real name; (2) notice must be given to the patient and the program in which the patient was enrolled of the request for disclosure to allow a response in accordance with local rules of procedure as well as an opportunity to appear and be heard; (3) if there is a hearing it must be held in the judge's chambers; (4) good cause must be shown and is determined by 859 weighing the public interests and need for disclosure against the injury to the patient, the treatment services and the patient-physician relationship; and (5) a need for disclosure must be demonstrated and if other competent evidence or sources of information are available, the court should ordinarily deny the application. 42 C.F.R. § 2.64 (1979). In this case, the State had obtained consent of the prosecutrix to obtain some of the records. The State also obtained consent to disclose to defendants statements made by prosecutrix to personnel of the clinic that might be of assistance to defendants. The State disclosed to defendants that on October 17, 1979, prosecutrix stated she had been robbed and beaten two days before; that on October 18, 1979, prosecutrix stated that she had been raped, tortured and robbed by four men, two of whom had been captured; and that on October 23, 1979, prosecutrix stated that she had been nervous since October 16, when she had been sexually assaulted by two men in a five and one-half hour ordeal. The trial court also reviewed the records that had been furnished to the State and determined that they contained nothing further that would assist defendants in their defense. The motions for discovery sought an order from the court directed to the Circuit Attorney for discovery of "the complete records of the alleged victim [name omitted] from the Methadone Clinic on Olive Street" which were in the possession of the State. The records that were in the possession of the State were not subject to disclosure by the State to a third person without consent of the patient. The portion of the records disclosed to the State with prosecutrix's consent bore an admonition required by the regulations, that the contents were not to be disclosed under penalty of criminal prosecution. 42 C.F.R. § 2.32(c) provides: "Whenever information from patient records is needed by any person, such information must be obtained directly from the program maintaining such records and not from another person to whom disclosure thereof has been made, except where the initial disclosure was intentionally and expressly made for the purpose of the redisclosure ...." Defendants' requests for disclosure were directed to the wrong party, the State. The method of obtaining disclosure, as set out above, was available to defendants. Defendants, in any case, received all that the court could have ordered to be disclosed under the regulations after reviewing the records in camera. The provisions of Rule 25.03(c) are not applicable to the circumstances of this case because of the restrictions placed upon disclosure by 21 U.S.C. § 1175, 42 U.S.C. § 4582 and the regulations promulgated under authority of those statutes. The trial court did not err in denying defendants' motions for discovery. The defendants next contend that the court erred in failing to grant a severance of their trials because Rule 24.06 requires the court to grant a severance except when defendants are charged jointly "under the provisions of Sections 559.260, 559.270 or 563.230 RSMo" and the defendants were not charged with violations of the above statutes. Prior to January 1, 1979, the crime of rape was to be found in §§ 559.260 and 559.270 RSMo 1969. Sodomy was made a crime by § 563.230 RSMo 1969. Under the criminal code which became effective on January 1, 1979, the above statutes on rape and sodomy were repealed and their substance was reenacted in §§ 566.030 and 566.060 RSMo 1978. The crimes in this case were committed in 1979 and the case was tried in September of 1980. The Rules of Criminal Procedure were extensively revised during the year 1979, effective January 1, 1980. The rule here in question is substantially the same as former Rule 25.07. The essential portions of the rule as it was published in 1980 read as follows: "(a) Any defendant jointly charged with one or more defendants with the 860 commission of any felony other than under the provisions of Sections 559.260, 559.270 or 563.230, RSMo, upon his motion made prior to the commencement of trial, shall be tried separately. In the absence of such a motion such jointly charged defendants shall be tried jointly or separately as the court in its discretion may order. (b) When two or more defendants are jointly charged under the provisions of one or more of Sections 559.260, 559.270 or 563.230, RSMo, they shall be tried jointly or separately as the court in its discretion may order, unless there is evidence admissible against one or more defendants and not admissible against one or more other defendants, in which event, upon motion made prior to the commencement of trial by a defendant against whom the evidence is inadmissible the defendant or defendants against whom the evidence is admissible shall be tried separately." The statutory references in Rule 25.07, the former rule, were repeated in Rule 24.06 instead of the new statutes on rape and sodomy. The statutes referenced in the rule were the statutes on rape and sodomy that were in effect prior to January 1, 1979. An amendment was made to Rule 24.06, effective January 1, 1981, substituting §§ 566.030 and 566.060 for "559.260, 559.270 or 563.230." At the time of trial in this case § 545.885 RSMo Supp.1981, as amended, had become effective.[2] Portions of § 545.885 pertinent to our consideration read as follows: "1. When two or more defendants are jointly charged with the commission of the criminal offense of rape or forcible rape, sodomy or forcible sodomy, or an attempt to commit any of the aforesaid, the court shall order both or all defendants to be tried together, notwithstanding the provisions of section 545.880, and except as provided in subsection 2. 2. If it appears that a defendant or the state is substantially prejudiced by such joinder of defendants for trial together, the court may grant a severance of defendants upon a particularized showing of substantial prejudice or provide whatever other relief justice requires. In ruling on a motion by the defendant for severance, the court may consider any evidence, statements or confessions made by the defendants which the state intends to introduce in evidence at the trial." The statutory references in Rule 24.06 in effect at the time of trial were to statutes that had been repealed as of January 1, 1979. If we are to ignore the substance of the rape and sodomy statutes that were repealed and § 545.885 RSMo Supp.1981, there would be no exception to the requirement that jointly charged defendants be tried separately when a motion for severance is filed. Rule 24.06(a). It would also mean that Rule 24.06(b) would have no meaning. In construing a rule of the Supreme Court, we use the rules that guide courts in the construction of statutes. State v. Windmiller, 579 S.W.2d 730 (Mo. App.1979). It is generally held that the rule making body intended its act to have applicability and effect. In determining the intent of the rule making body, it is appropriate to review the history of the rule, the surrounding circumstances and the ends to be accomplished. Protection Mutual Insurance Co. v. Kansas City, 504 S.W.2d 127[8, 3] (Mo.1974). In 1963, the General Assembly enacted § 545.885 which provided that defendants jointly charged under §§ 559.260, 559.270 or 563.230 RSMo 1959 (Rape and Sodomy) could be tried jointly within the discretion of the court. The Supreme Court promulgated Rule 25.07 to parallel the statute. This rule became effective June 1, 1964. It has been said that the purpose of the statute and of the rule was to avoid the necessity of the prosecuting witnesses making multiple appearances in such cases. State v. Lee, 404 S.W.2d 740, 745 (Mo.1966). After the enactment of the present criminal code, § 545.885 was amended. The statutory references were deleted and replaced by 861 specific language that stated that defendants jointly charged with "rape or forcible rape, sodomy or forcible sodomy, or an attempt to commit any of the aforesaid," could be tried jointly. The Supreme Court repealed Rule 25.07 and enacted Rule 24.06 which was printed as set out above. As shown before, the rule made reference to statutes that had been repealed. Considering the history of Rule 24.06 and § 545.885 RSMo, their purpose and the surrounding circumstance and giving them applicability and effect, there can be no doubt as to the meaning of Rule 24.06. The full meaning can be found in § 545.885 RSMo Supp.1981. It is clear that the trial court, in its discretion, may try defendants charged with rape, sodomy or attempt to commit these crimes in the one trial. Defendant Schleicher also complains that the court should have granted a severance because "there existed evidence which was admitted against co-defendant Walker and not against appellant." There was evidence that Walker struck the prosecutrix in the face and struck her head against the headboard when she refused to engage in fellatio. It also appears that after doing so, Walker told Schleicher that prosecutrix would cooperate thereafter. Schleicher then took advantage of the assault. The evidence was admissible as to both defendants with respect to the element of consent. Under the same point, defendant Schleicher argues matters not raised in the point relied on. These matters will not be discussed. State v. Hodges, 575 S.W.2d 769, 773 (Mo.App.1978). The trial court did not abuse its discretion in refusing to grant a severance. Defendants contend that the trial court erred in failing to give MAI-CR 2.36 prior to the testimony of a psychiatrist who had examined the prosecutrix and testified as to statements made by prosecutrix concerning the facts with respect to the incident giving rise to this case. The psychiatrist, after an examination of prosecutrix, made a diagnosis of rape trauma syndrome. In his examination the doctor was required to obtain a history of prosecutrix's condition and he testified at the trial as to statements made to him by prosecutrix. The trial court did not give an oral instruction before the psychiatrist testified. It did give a modified MAI-CR 2.36[3] along with the other instructions after the close of the evidence. Defendants make no complaint as to the form or substance of the instruction as given but contend that the failure to orally instruct the jury before the doctor testified was violative of § 552.030(6) RSMo 1978[4] and constituted prejudicial error. Among other provisions, § 552.030 RSMo 1978 provides for psychiatric examination of persons who plead mental disease or defect excluding responsibility for alleged criminal acts. Section 552.030(6) reads as follows: "No statement made by the accused in the course of any such examination and no information received by any physician or other person in the course thereof, whether such examination was made with or without the consent of the accused or upon his motion or upon that of others, shall be admitted in evidence against the accused on the issue of whether he committed the act charged against him in any criminal proceeding then or thereafter pending in any court, state or federal. 862 The statement or information shall be admissible in evidence for or against him only on the issue of his mental condition, whether or not it would otherwise be deemed to be a privileged communication. If the statement or information is admitted for or against the accused on the issue of his mental condition, the court shall both orally at the time of its admission and later by instruction inform the jury that it must not consider such statement or information as any evidence of whether the accused committed the act charged against him." In conformity with the portion of the statute, MAI-CR 2.36 reads: "2.36 Mental Responsibility: Limitation of Expert Testimony You will recall that (a doctor) (certain doctors) testified to certain statements that (he) (they) said were made to (him) (them) and certain information that (he) (they) said had been received by (him) (them) during or in connection with (his) (their) inquiry into the mental condition of the defendant. In that connection the court instructs you that evidence of such statements and information, which the doctor(s) said were received by (him) (them), was admitted solely on the issue of the mental condition of the defendant at the time of the offense charged against him. Under no circumstances should you consider the (doctor's) (doctors') testimony about the statements or the information, which (he says he received) (they say they received), as evidence that the defendant did or did not commit the acts charged against the defendant." It is obvious from a reading of § 552.030(6) RSMo 1978 and MAI-CR 2.36, confirmed by the opinion in State v. Strubberg, 616 S.W.2d 809 (Mo.1981), that they are applicable only as to the testimony of a doctor who has examined the defendant under § 552.030(4) RSMo 1978, or under § 552.020 RSMo 1978, which is treated by the trial court as an examination under § 552.030 RSMo 1978. The trial court did not err in failing to follow the procedure set out in § 552.030(6). Defendants finally contend that the trial court erred in overruling defendants' objections to comments made by the trial court during voir dire to the effect that a drug addict was entitled to all the rights, privileges and protection of the law as any other citizen. Defendants urge that this was a comment on the evidence and an instruction on the "believability and credibility" of the prosecutrix's testimony, a crucial issue in the case. As stated earlier in this opinion, it was conceded by all parties that the prosecutrix was a narcotics addict. During voir dire by the State, counsel made repeated references to the fact that the victim [prosecutrix] was a drug addict, that drug addiction was a disease and made inquiry about the effect of her drug addiction upon the jurors' deliberations. Defendant objected to questions to the effect that scientific evidence shows addiction is a disease. The court sustained the objections and limited the prosecutor to inquiry as to whether addiction would affect their verdict in any way. Thereafter, the following proceedings occurred: "MR. SULLIVAN [Assistant Circuit Attorney]: Do you accept the fact that it's [addiction] a disease? THE COURT: Here we go again. MR. WHITNEY [Counsel for Defendant Schleicher]: Your Honor, I don't want THE COURT: Let's get off that topic. A person who's addicted or who is an alcoholic does have all the rights and privileges of any other citizen and they have all the protection of the law of any other citizen. Is that clear? VENIREMAN LOMBARDI: Yes. THE COURT: All right. And because they become a victim or supposedly become a victim of a crime, does not make it all right. They have all the protection of the law as any other citizen." A trial court is empowered, in its discretion, to control voir dire examination, and may on its own, examine members of the venire. Its conduct and control of the *863 voir dire will not be disturbed except for an abuse of that discretion. The court must, however, maintain a neutral position. It should avoid (1) any expression or feeling of partiality; (2) any remark which could be construed as indicating its belief as to the guilt of defendant; and/or (3) any demonstration of hostility toward defendant. State v. Hurd, 550 S.W.2d 804 (Mo.App. 1977). An analysis of the above incident indicates that the remarks were directed to a juror as a voir dire question within the prerogative of the court. State v. Hurd, supra. It was not a comment upon the evidence; no evidence had been admitted. The comments of the court indicated no feeling of partiality nor of hostility toward defendants. In fact, it appears that counsel for Schleicher started to make an objection and the court, anticipating the objection, responded with an admonition directed to counsel for the State. The court did not indicate by the remarks that it believed the defendants were guilty. The remarks contained no direct or indirect reference to prosecutrix's credibility and thus could not be said to be an instruction as to her credibility. Defendants have failed to establish that they were prejudiced by the remarks of the trial court in this case. State v. Hurd, supra. The trial court committed no reversible error. The judgment is affirmed. STEPHAN and CRANDALL, JJ., concur. NOTES [1] All references to federal law and regulations are to those in effect at the time of trial, September, 1980. [2] The effective date was August 13, 1980. [3] The instruction given to the jury was as follows: "You will recall that a doctor testified to certain statements that he said were made to him and certain information that he said had been received by him during or in connection with his inquiry into the mental condition of the witness. In that connection the court instructs you that evidence of such statements and information, which the doctor said were received by him, was admitted solely on the issue of the mental condition of the witness. Under no circumstances should you consider the doctor's testimony about the statements or information, which he says he received, as evidence that the defendants did or did not commit the acts charged." [4] This statute has been revised since the time of trial. See § 552.030 RSMo Supp.1981.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518476/	639 S.W.2d 594 (1982) CLARK OIL & REFINING CORP., et al., Respondents-Plaintiffs, v. The Honorable John ASHCROFT, Attorney General of Missouri, Appellant-Defendant. No. 63935. Supreme Court of Missouri, En Banc. August 31, 1982. Rehearing Denied October 12, 1982. John Ashcroft, Atty. Gen., William L. Newcomb, Jr., Warren D. Weinstein, Robert E. Dolan, Jr., Asst. Attys. Gen., Jefferson City, for appellant-defendant. Thomas M. Carney, St. Louis, William J. Fleischaker, Joplin, Linda Martin, Tulsa, Okl., Gary T. Nelms, Springfield, Alex Bartlett, Jefferson City, Francis J. LaPallo, Washington, D.C., for respondents-plaintiffs. SEILER, Judge. The attorney general appeals from a declaratory judgment entered in Cole County Circuit Court March 11, 1982, ruling that the Missouri attorney general had no power under Missouri law to maintain parens patriae damage actions pursuant to § 4C of the Clayton Antitrust Act, 15 U.S.C. § 15c (1976).[1] We reverse and remand. 595 Appellants base jurisdiction on the validity of the statutory and title-to-state office construction portions of Art. V, § 3, Mo. Const., as amended 1976, and in the alternative on Art. V, § 10, because of the importance of an issue of statewide concern. Respondents challenge all three jurisdictional bases. Although our original jurisdiction under Article V, § 3 is disputed, "by reason of the general interest and importance of the other questions in the case, and need for adjudication at this level, ... we will retain and decide the case, rather than go through the time-consuming procedure of sending the case to the court of appeals and then transferring it back prior to opinion." Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193, 196 (Mo. banc 1972). The attorney general originally filed a parens patriae action for damages in September of 1979 against respondent Clark Oil and others in federal district court, State of Missouri by John Ashcroft, Attorney General, v. Dugan-Lowe Oil Company, et al. Respondents filed motions for judgment on the pleadings. The court overruled the motion in an opinion dated June 24, 1981, holding that "as a matter of federal law, the Missouri attorney general properly prosecutes this action." On March 5, 1980, the attorney general filed a second parens patriae suit, again in federal district court, State of Missouri by John Ashcroft, Attorney General, v. Central Petroleum Company. Respondent Clark Oil and others were also defendants in that action, and filed motions to dismiss essentially identical to Clark Oil's motion in the Dugan-Lowe case. The court denied those motions based on the June 24 opinion. Respondent Sinclair then requested, and the district court granted, certification on the issue of the attorney general's standing to the eighth circuit under 28 U.S.C. § 1292(b). That court turned down the interlocutory appeal. Respondents then sought declaratory relief in the Circuit Court of Cole County, from which the attorney general now appeals. The issue in this case is whether Missouri law permits the attorney general to maintain a parens patriae damage action under the federal antitrust laws. Before determining whether the attorney general is so empowered, it is necessary to sketch briefly the nature and purpose of the parens patriae suit. In the United States, the parens patriae suit has expanded beyond its early British function as the king's "royal prerogative", in which the king's power was exerted on behalf of legal incompetents, to include cases where a state sues to prevent or repair harm to its quasi-sovereign interests. Hawaii v. Standard Oil Co., 405 U.S. 251, 258, 92 S. Ct. 885, 889, 31 L. Ed. 2d 184; Comment, State Protection of its Economy and Environment: Parens Patriae Suits for Damages, 6 Col.J.L. & Soc.Prob. 411, 412 (1970). The United States Supreme Court has recognized parens patriae actions throughout this century, the first time in Louisiana v. Texas, 176 U.S. 1, 20 S. Ct. 251, 44 L. Ed. 347 (1900) (permitting the state of Louisiana to sue the state of Texas to prevent Texas officials from administering state quarantine regulations so as to restrict commerce from Louisiana), followed by a series of cases recognizing the "propriety and utility" of parens patriae suits. Hawaii v. Standard at 258, 92 S.Ct. at 889. Parens patriae suits have been used in antitrust cases since 1945, when the Supreme Court allowed the state of Georgia to sue as a "quasi-sovereign" a number of railroad companies on allegations of a price fixing conspiracy. Georgia v. Pennsylvania R.R. Co., 324 U.S. 439, 65 S. Ct. 716, 89 L. Ed. 1051 (1945). The state of Hawaii brought a parens patriae damage action in Hawaii v. Standard Oil, 405 U.S. 251, 92 S. Ct. 885, 31 L. Ed. 2d 184 (1971), but the issue there turned on the question, whether the injury asserted by Hawaii met the statutory "injury to business or property" requirement. Hawaii v. Standard Oil at 261, 92 S.Ct. at 890. The ninth circuit in State of California v. Frito-Lay, 474 F.2d 774 (9th Cir.), 596 cert. denied, 412 U.S. 908, 93 S. Ct. 2291, 36 L. Ed. 2d 974 (1973) refused to entertain a parens patriae damage action, prompting Congress to amend the antitrust laws to provide specifically for such actions, in the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. §§ 15c et seq., 18a, 1311 et seq. See H.R.Rep. No. 94-499, 94th Cong., 2d Sess. 3, reprinted in [1976] U.S. Code Cong. & Ad. News 2572, 2578. Although 15 U.S.C. § 15c(a)(1) provides attorneys general express authority to maintain parens patriae damage actions, the amended statute allows a state to prohibit them: [T]his title shall apply in any State, unless such State provides by law for its nonapplicability in such State. 15 U.S.C. § 15h. The Missouri legislature has passed no such law, but it has not passed specific enabling legislation, either. However, there exists ample authority in Missouri law for the attorney general to bring these suits. The Missouri attorney general derives his power to represent the state from both statutory and common law.[2] Specifically, § 27.060 RSMo 1978, provides: The attorney general shall institute, in the name and on the behalf of the state, all civil suits and other proceedings at law or in equity requisite or necessary to protect the rights and interests of the state, and enforce any and all rights, interests or claims against any and all persons, firms or corporations in whatever court or jurisdiction such action may be necessary ... § 27.060 RSMo 1978. The Missouri antitrust law empowers the attorney general further: The attorney general may represent, ... the state ... to enforce the provisions of sections 416.011 to 416.161 [of the Missouri Antitrust Law] or in actions brought in the federal courts under any federal statute pertaining to antitrust ... § 416.061 RSMo 1978. The statutory language plainly authorizes the attorney general to bring a parens patriae action for damages under 15 U.S.C. § 15c(a)(1).[3] By the terms of these statutes, the attorney general may institute proceedings on behalf of the interests of the state. Contrary to respondent's assertions, the parens patriae action is not merely a suit on behalf of individual citizens prosecuting their private damage claims against other private individuals. It is an action on behalf of the state, in which the attorney general seeks to vindicate the rights of all Missouri citizens injured by actions in restraint of trade. Thus, we need not apply State ex rel. Barker v. Chicago & Alton Railroad Co., 265 Mo. 646, 178 S.W. 129 (banc 1915). In Barker, the state "had no right to enforce mere private rights." 178 S.W. at 137. Here, the state is enforcing a public right. At any rate, reliance on Barker fails to account for Congress's explicit provision for state attorneys general to prosecute antitrust damage actions on behalf of their citizen consumers in 15 U.S.C. § 15c(a)(1). See the June 24, 1981, Order, U.S. District Court, Western District of Missouri, p. 3, note. As the court concluded, Language from cases decided in the absence of statutory authorization will not be used by this Court to defeat legislation enacted to cure that very deficiency of authority. Id. Our conclusions regarding the public character of a parens patriae suit also obviate respondent's argument that the attorney general thereby spends public funds for private purposes in violation of Art. Ill, *597 § 38(a), Mo.Const.[4] This comports with the principle that a statute will be construed to avoid conflict with the constitution if possible. State Highway Commission v. Spainhower, 504 S.W.2d 121, 125 (Mo.1973). By instituting the parens patriae damage actions, the attorney general has carried out his statutory and common law duty to enforce public rights and protect citizen consumers against violation of the antitrust laws. Federal law has explicitly created this cause of action. While Missouri law does not expressly authorize the same, nowhere does it deny that power, despite statutory invitation to do so. See above. In light of clear statutory authorization for the attorney general to institute "all civil suits ... necessary to protect the interests of the state ...", § 27.060 RSMo 1978 (emphasis added), we reverse the judgment of the circuit court, and remand for further proceedings in accordance herewith. DONNELLY, C. J., and RENDLEN, MORGAN, HIGGINS and BARDGETT, JJ., concur. WELLIVER, J., dissents. NOTES [1] 15 U.S.C. § 15c(a)(1) reads in pertinent part as follows: (a)(1) Any attorney general of a State may bring a civil action in the name of such State, as parens patrial on behalf of natural persons residing in such State, in any district court of the United States having jurisdiction of the defendant, to secure monetary relief as provided in this section for injury sustained by such natural persons to their property by reason of any violation of Sections 1 to 7 of this title. [2] See, e.g., State ex rel. Taylor v. Wade, 360 Mo. 895, 231 S.W.2d 179, 182, (Mo. banc 1950). [3] Cf. State of New Mexico as Parens Patriae v. Scott & Fetzer Co. and Others, 1981-2 Trade Cases, ¶ 64,439, and State of Iowa v. Scott & Fetzer Co., Order, No. 81-362E (July 8, 1982) (Both upholding a state attorney general's power to bring parens patriae damage actions under 15 U.S.C. § 15c(a)(1) under statutory powers similar to those contained in the Missouri statutes). [4] The section reads as follows: "The general assembly shall have no power to grant public money or property, or lend or authorize the lending of credit, to any private person, association or corporation ...	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518551/	832 A.2d 501 (2003) TEMPLE UNIVERSITY HOSPITAL, INC., Appellee, v. HEALTHCARE MANAGEMENT ALTERNATIVES, INC. A/K/A Americhoice of Pennsylvania, Appellant. Superior Court of Pennsylvania. Argued December 11, 2002. Filed September 8, 2003. 503 Robert C. Heim, Philadelphia, for appellant. Matthew M. Stickler, Philadelphia, for appellee. John A. Kane, Harrisburg, amicus curiae. Before: McEWEN, P.J.E., BOWES and TAMILIA, JJ. 502 BOWES, J. ¶ 1 Healthcare Management Alternatives, Inc. a/k/a Americhoice of Pennsylvania ("Healthcare") appeals a judgment in the amount of $4,310,494.34 plus pre-judgment interest entered against it in this action instituted by Temple University 504 Hospital (the "Hospital").[1] We reverse and remand for a determination of damages in accordance with this adjudication. ¶ 2 This matter has been before us on a prior occasion. See Temple University Hospital, Inc. v. Healthcare Management Alternatives, Inc., 764 A.2d 587, 589-93 (Pa.Super.2000). In that appeal, the Honorable Kate Ford Elliott authored an opinion that comprehensively sets forth the facts necessary for a proper understanding of the matter. We paraphrase those facts as follows. ¶ 3 The Hospital, a teaching hospital, is located in Philadelphia and historically has provided services to individuals who are not able to afford medical care. Most of the Hospital's patients are eligible for Medicaid benefits from the Pennsylvania Department of Public Welfare ("DPW"). The Commonwealth and the United States Government fund the Medicaid program. ¶ 4 Federal law governing Medicaid programs authorizes states to develop their own Medicaid reimbursement standards and methods of payment for hospital services. However, these standards and methods are subject to federal requirements. These requirements include establishing rates that take into account the situation of hospitals that serve a disproportionately high number of low-income patients. The Hospital historically was entitled to additional Medicaid funds because it served a disproportionately large share of indigent patients. Federal constraints also require states to set rates that are reasonable and adequate to meet the necessary costs of an efficiently-operated hospital and to assure that Medicaid patients have reasonable access to inpatient care. ¶ 5 Under the Pennsylvania Medicaid program, which is known as the Medical Assistance Program ("MAP"), DPW, which operates the MAP, traditionally made payments directly to medical providers on a fee-for-service basis. Until 1984, payments were based on actual costs. In 1984, due to spiraling health care costs, DPW established a method of payment that was dependent upon the diagnosis rather than length of stay or number of services provided during that stay. A relative value was placed on a diagnostic related group ("DRG"), and the DRG determined the payment amount. Thus, the patient's diagnosis, rather than the actual services provided, became the touchstone for reimbursement. After 1984, the Hospital remained entitled to additional payments since it served a disproportionately high number of indigent patients. Further, in recognition of its status as a teaching hospital, which increased the costs of care, the Hospital received additional payments to defray capital costs. ¶ 6 In the mid-1980s, pursuant to section 1915(b) of the Social Security Act, 42 U.S.C. § 1396(n)(b), Pennsylvania obtained a waiver from some of the federal Medicaid requirements. This section allowed states flexibility, subject to some limitations, in the development of innovative and more efficient programs to provide medical care to indigent people. 505 ¶ 7 Under that waiver provision, DPW initiated an experimental program called "HealthPASS." HealthPASS required Medicaid recipients in certain sections of southern and eastern Philadelphia to enroll in a managed care program operated by Healthcare, a for-profit corporation. Healthcare contracted with DPW to provide, among other things, inpatient hospital services to persons in the designated region who were eligible for Medicaid benefits. Thereafter, Healthcare entered into contracts with other health care providers, including the Hospital, who agreed to provide medical services due under the DPW contract. These contracts had to be approved by DPW, which then reimbursed Healthcare for services rendered. ¶ 8 On April 1, 1991, the Hospital entered into a contract with Healthcare to provide services to HealthPASS participants. The contract, which remained in effect until June 30, 1993 provided that the Hospital would be reimbursed at a rate of 114% of the applicable DRG rate. By its terms, the contract remained in effect until June 30, 1993. During this contract period, the Hospital used forms UB-82 and UB-92 to bill Healthcare. Since Healthcare lacked the software necessary to calculate the amount due, the Hospital would write the amount under the remarks section of those forms as a service to Healthcare. ¶ 9 On April 20, 1993, the Hospital notified Healthcare that it would not extend the contract because the payments it was receiving under the contract were inadequate. Thus, when the contract expired on June 30, 1993, the parties began negotiating a new contract. During the course of the negotiations, which lasted until January 1997, the Hospital continued to provide emergency medical services for HealthPASS participants and continued to bill Healthcare for inpatient treatment using UB-82 and UB-92 forms with handwritten billing amounts posted in the remarks section. By letter dated March 24, 1994, the Hospital advised Healthcare that it intended to collect its published rates while the parties were not under contract; Healthcare countered that it would pay the Hospital at its standard rate for out-of-state hospitals, or $705 per day. At that time, the Hospital's medical assistance cost-per-day amounted to $1,204. ¶ 10 When the Hospital indicated that the proposed amount was unacceptable, Healthcare represented that it would pay at the 1991 contract rates. The Hospital again rejected this payment arrangement, demanding payment at its published rates. ¶ 11 During the negotiation period, the Hospital sent Healthcare bills reflecting its published rates as well as the hand-posted DRG rate. Healthcare usually paid the DRG rate but on other occasions, it paid the $705 per diem rate that it set for out-of-area non-contracting providers. ¶ 12 The Hospital instituted this action in December 1997 seeking to recover the difference between published charges and the amount actually paid by Healthcare. After a nonjury trial, the trial court found an implied contract in favor of Healthcare at the 1991 contract rates. The trial court concluded that the Hospital evidenced its intent to accept Healthcare's offer to continue the terms of the 1991 contract when it continued to hand-post the adjusted DRG rates on its bills to Healthcare. The Hospital appealed and we reversed and remanded, finding that the Hospital's actions did not manifest assent to an extension of the 1991 contract and therefore no implied contract existed. Id. ¶ 13 Upon remand, the parties jointly moved to present additional evidence. The motion was granted and hearings were held December 10 and December 11, 2001. Robert Lux, the Vice President, 506 Chief Financial Officer, and Treasurer of Temple University Health System testified that the Hospital was paid eighty percent or more of its full published charges only six percent of the time. In other words, ninety-four percent of the time, the Hospital received less than eighty percent of the Hospital's published rates. Allen Dobson, PhD., Healthcare's expert economist, offered similar testimony. Dr. Dobson estimated that the Hospital was paid its full published charges only one to three percent of the time. Dr. Dobson also testified that the Hospital's data established that, in 1994, its full published rates were 172% of its actual costs and, in 1995 and 1996, the full published charges represented 300% of the Hospital's costs. ¶ 14 After the hearings, the trial court found in favor of the Hospital, concluding that it was entitled to recover under the doctrine of unjust enrichment. The court awarded the Hospital the difference between what Healthcare had paid, which was approximately two million dollars, and the Hospital's published rates. Post-trial motions were filed, and a hearing was held. At that hearing, the court stated that it did not "care whether [the published rates] are reasonable or unreasonable from a commercial point of view" and that it awarded the published rates because they were "not unconscionable," and the court was "not shocked by the amount." N.T., 3/26/02, at 31; see also Trial Court Opinion, 4/10/02, at 12. Healthcare's post trial motions were denied, and this appeal followed. On appeal Healthcare raises the following issues for our consideration:[2] A. The trial court abused its discretion when it denied HMA's request for post-trial relief and awarded Temple its full published charges on a quasi-contract theory where Temple did not meet its burden of proving that HMA had been unjustly enriched. B. The trial court committed an error of law when it denied HMA's request for post-trial relief and awarded Temple its full published charges based on its finding that those charges were "not unconscionable" instead of determining the reasonable value of the services provided by Temple as required by Pennsylvania law. C. The trial court abused its discretion when it denied HMA's request for post-trial relief and awarded Temple its full published charges although the court acknowledged that those charges were "commercially unreasonable." D. The trial court abused its discretion to the extent it relied on a theory of estoppel in awarding Temple its full published charges where there was no record evidence of detrimental reliance by Temple. Appellant's brief at i-ii. ¶ 15 Initially, we reiterate our standard of review of a decision rendered by a court sitting in equity. The findings of fact of the equity court will not be disturbed unless they are not supported by the evidence or are demonstrably capricious; however, we may reverse if the equity court committed an error of law or 507 abused its discretion. Daddona v. Thorpe, 749 A.2d 475 (Pa.Super.2000). ¶ 16 Healthcare first contends that the Hospital did not establish the elements of unjust enrichment because Healthcare paid approximately two million dollars for the services rendered. When there is no express contract between the parties, a plaintiff may still recover under a quasi-contract theory. In this situation, a contract is implied by the law: A quasi-contract imposes a duty, not as a result of any agreement, whether express or implied, but in spite of the absence of an agreement, when one party receives unjust enrichment at the expense of another. In determining if the doctrine applies, we focus not on the intention of the parties, but rather on whether the defendant has been unjustly enriched. The elements of unjust enrichment are benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value. The most significant element of the doctrine is whether the enrichment of the defendant is unjust; the doctrine does not apply simply because the defendant may have benefited as a result of the actions of the plaintiff. Where unjust enrichment is found, the law implies a quasi-contract which requires the defendant to pay to plaintiff the value of the benefit conferred. In other words, the defendant makes restitution to the plaintiff in quantum meruit. AmeriPro Search Inc. v. Fleming Steel Co., 787 A.2d 988 (Pa.Super.2001) (citations omitted). ¶ 17 Healthcare argues that since the Hospital did not receive a benefit without being paid some value, the elements of unjust enrichment are not present. We disagree. Under the recited principles, we must focus on whether Healthcare has been unjustly enriched and a benefit conferred on it under circumstances that make it inequitable for it to retain the benefit without additional payment. We believe the circumstances herein compel a finding that unjust enrichment has occurred. In reaching this conclusion, we note that the Hospital was compelled under federal law to provide services to individuals covered under the HealthPass program; conversely, Healthcare did not have the ability to prevent its members from seeking emergency treatment at the Hospital. As a result, the parties virtually were compelled to operate in this manner; equitable principles are therefore particularly appropriate to apply. ¶ 18 Healthcare maintains that it adequately compensated the Hospital for services provided during the negotiation period. We disagree. Dr. Dobson testified that Medicaid covered only eighty to eighty-three percent of the costs incurred by hospitals that treat indigent patients. Thus, Healthcare retained a benefit in this instance because it did not pay reasonable value for the services rendered. Accordingly, we find that all of the elements of unjust enrichment were established, see River Park Hospital, Inc. v. BlueCross BlueShield of Tennessee, Inc., 2002 WL 31302926 (Tenn.Ct.App.2002) (finding that doctrine of unjust enrichment was applicable where parties were operating under same circumstances presented herein), and that Healthcare's payment of two million dollars did not render the doctrine inapplicable. If we adopted Healthcare's position, entities like Healthcare could pay a fraction of the value of the benefit supplied by health care providers who treat Medicaid recipients and successfully argue that the doctrine of unjust enrichment was not 508 applicable. The very thought of permitting such a result is absurd; payment of less than actual costs in unreasonable and thus, inequitable. ¶ 19 We now address Healthcare's three final contentions, which can be distilled into one essential point: that the trial court did not apply the applicable law in rendering its decision. Healthcare argues that the trial court, rather than determining the reasonable value of the services provided, improperly focused on whether the Hospital's published rates were unconscionable or shocking. We agree. The court erred in awarding the Hospital an amount it deemed to be commercially unreasonable based on its determination that the amount requested was not unconscionable and did not shock its conscience. The decision to award the Hospital its published rates is both inequitable in light of the facts of this case and unwarranted under governing legal principles. ¶ 20 Unjust enrichment is an equitable doctrine, and when unjust enrichment is present, the law implies the existence of a contract requiring the defendant to pay to the plaintiff the reasonable value of the benefit conferred. Mitchell v. Moore, 729 A.2d 1200 (Pa.Super.1999). The crux of our disagreement with the trial court is its determination regarding the value of the benefit conferred. Herein, the trial court improperly focused on the conscionability of the published rates rather than determining whether the published rates were commercially reasonable. ¶ 21 Utilization of the published rates ignores the equities in this case, as well as the realities of the current state of the health care industry and the impact of that reality on the relevant law regarding value conferred in the context of the doctrine of unjust enrichment. First, the importance of the manner in which these two parties were required to operate cannot be ignored. The Hospital was servicing patients because it was required to do so under federal law, and Healthcare could not prevent people covered by its program from going to the Hospital for treatment. Since both parties were legally required to act as they did, commensurately, neither party should be provided a windfall, which is the result reached by the trial court. ¶ 22 Where, as here, there is no express agreement to pay, the law implies a promise to pay a reasonable fee for a health provider's services. Eagle v. Snyder, 412 Pa.Super. 557, 604 A.2d 253 (1992). Thus, in a situation such as this, the defendant should pay for what the services are ordinarily worth in the community. Id. Services are worth what people ordinarily pay for them. Id. Whether the amount charged is unconscionable and whether it shocks the conscience is irrelevant. ¶ 23 While the Hospital's published rates for services may be the same or less than rates at other Philadelphia hospitals, the more important question is what healthcare providers actually receive for those services. As Mr. Lux readily admitted, the Hospital rarely recovers its published rates. Therefore, those rates cannot be considered the value of the benefit conferred because that is not what people in the community ordinarily pay for medical services. ¶ 24 As noted, Mr. Lux testified that ninety-four percent of the time, the Temple University Health System received eighty percent or less of its full published charges. Healthcare's expert economist, Dr. Dobson, testified similarly. He stated that the Hospital was paid its full published charges in only one to three percent of its cases. Courts have also recognized this discrepancy between amounts billed and amounts received under Medicare. See, 509 e.g., Vencor Inc. v. National States Insurance Co., 303 F.3d 1024, 1029 n. 9 (9th Cir.2002) ("It is worth noting that in a world in which patients are covered by Medicare and various other kinds of medical insurance schemes that negotiate rates with providers, providers' supposed ordinary or standard rates may be paid by a small minority of patients."). Dr. Dobson also testified that based on the Hospital's data, the full published charges in 1994 were approximately 172% of its actual costs, while in 1995 and 1996, the published rates were approximately 300% of its actual costs. In addition, Dr. Dobson testified that private payors typically paid 121% of the cost of hospital services in 1994, 119% in 1995, and 112% in 1996. Government payors generally pay less. Mr. Lux acknowledged that the Hospital had twelve contracts with commercial insurance companies and that none of those contracts provided for payment at published rates. ¶ 25 The renowned contracts expert, Dr. John E. Murray, Jr., has explained the remedy applicable when one party has been unjustly enriched at the expense of the other, stating, "To avoid unjust enrichment, the law permits the party who has conferred the benefit to recover the reasonable value of the benefit. Through this action, he is restored to status quo, i.e., he is placed in the position he would have been in if there had been no unjust enrichment." John Edward Murray, Jr., Murray on Contracts § 19, 35 (3rd ed.1990). Since the Hospital would not have been able to recover its published rates from the HealthPASS patients who received medical treatment during the relevant time frame if they were not covered by Healthcare, the trial court's resolution was improper because it failed to restore the status quo. ¶ 26 Instead, the Hospital is placed in an immensely better position than it would have been had the services been performed for the majority of its other patients; in fact, it has been awarded a windfall. Under the law, the Hospital is entitled to the reasonable value of its services, i.e., what people pay for those services, not what the Hospital receives in one to three percent of its cases. Accordingly, the damage award in this unjust enrichment action simply is unwarranted. ¶ 27 In light of the applicable law, the Hospital should be awarded its average collection rate for each year in question. This value would be reasonable. See River Park Hospital Inc., supra (health care provider was awarded the reasonable value of its services, not its published rates, when the health care provider and the payor were operating under circumstances similar to those presented herein). ¶ 28 Furthermore, in light of the facts of this case, we agree with Healthcare's position that the trial court's utilization of an estoppel analysis in awarding the published rates was improper. The trial court indicated that its award was appropriate because the "defendant, knowing it would be charged at retail rate did nothing to control this cost by seeking relief." Trial Court Opinion, 4/10/02, at 8. We reiterate that the Hospital was servicing patients because it was required to do so under applicable law, and Healthcare could not prevent people in its program from seeking services at the Hospital. Since both parties were forced to operate as they did, the court's estoppel analysis was wholly inappropriate. ¶ 29 The Hospital's response to Healthcare's argument hinges primarily upon the manner in which it calculated its published rates, which were designed to offset the shortfall caused by its federal mandate to treat indigent patients. It also 510 focused on how the reduction in published rates were negotiated by health insurers. We acknowledge the factual honesty of its position but note that these facts are not relevant in this case. The law of unjust enrichment, the theory upon which the Hospital rests its right of recovery, does not take these extraneous factors into account. The law permits an award of reasonable fees. Healthcare should not be required to compensate the Hospital for losses incurred as a result of federal requirements and the Hospital's own negotiations with insurers. If the Hospital recovers its published rates in only one to three percent of its cases, those rates clearly do not reflect the amount that members of the community ordinarily pay for medical services. ¶ 30 Alternatively, the Hospital argues that the trial court's holding is not rooted in unjust enrichment but is a third party beneficiary analysis. In support of this claim, it points to language in the trial court's opinion which suggests that the Hospital is a third party beneficiary of the contract between Healthcare and DPW which provided that Healthcare would pay for medical services rendered to its patients. However, conspicuously absent from the contract between Healthcare and DPW is any payment term. The Hospital does not cite any language in the contract between the Commonwealth and Healthcare requiring Healthcare to pay the Hospital's full published rates. ¶ 31 Ironically, the Hospital presently asserts that Healthcare's approach in this action inappropriately requires the courts to function as rate-setting agencies, suggesting that its rates should prevail. Meanwhile, the Hospital instituted this common law action seeking recovery under contractual theories. We determined in the prior appeal that the evidence did not support the existence of an express contract in this case. Thus, the Hospital can recover in this action only under a quasi-contract theory of unjust enrichment. Unjust enrichment permits recovery of the reasonable value of a given service. The Hospital, as plaintiff, has the burden of proving damages to a reasonable degree of certainty in this action. Spang & Co. v. United States Steel Corp., 519 Pa. 14, 545 A.2d 861 (1988). Hence, the Hospital is asking us to become a rate-setting agency, not Healthcare. ¶ 32 The Hospital's contention that it can unilaterally set a price for its services that bears no relationship to the amount typically paid for those service is untenable. Both parties maintain that they are entitled to pay or collect an amount that they subjectively believe to be appropriate and assert that we are bound to accept that amount. We, as an appellate court, are required to apply the law. In the absence of an express contract, the law requires the payment of reasonable value. Reasonable value is what someone normally receives for a given service in the ordinary course of its business from the community that it serves. Eagle, supra. ¶ 33 In accordance with the foregoing, we remand for a hearing so that the Hospital can establish the reasonable value of its services. Reasonable value, in accordance with the above-cited case law, is the value paid by the relevant community. The relevant community in this case comprises the Hospital's patients who are covered by insurance policies and federal programs. Thus, the Hospital should be awarded the average charge for the services at issue contained in contracts with governmental agencies and insurance companies. ¶ 34 Judgment reversed. Case remanded for proceedings consistent with this adjudication. Jurisdiction relinquished. 511 ¶ 35 Judge Tamilia files a Dissenting Opinion. DISSENTING OPINION BY TAMILIA, J. ¶ 1 Healthcare Management Alternatives (HMA) appeals the April 10, 2002 judgment in the amount of $4,310,494.34 plus interest from January 31, 1997. The judgment was entered in favor of appellee, Temple University Hospital (Hospital) and against HMA. For the reasons expressed as follows, I respectfully dissent to the majority Opinion and would affirm the judgment of the trial court. ¶ 2 As more fully discussed infra, this case previously has been before this Court, at which time Judge Ford Elliott authored an Opinion thoroughly detailing the facts and procedural history of this case. For purposes of my review of the issues now before us, I rely upon that statement of facts as set forth in Judge Ford Elliott's Opinion. Temple University Hospital, Inc. ("Hospital") is a teaching hospital located in north Philadelphia, which has historically provided care to indigent individuals despite their inability to pay for care. Many of Hospital's patients are eligible for Medicaid benefits under a program operated by the Pennsylvania Department of Public Welfare ("DPW") and funded jointly by the Commonwealth and the federal government. Federal law governing Medicaid programs authorizes the states to develop their own Medicaid reimbursement standards and methodologies for payment of hospital services, but subjects those standards and methodologies to three general federal requirements. These requirements include establishing rates that take into account the situation of hospitals serving a disproportionate number of low-income patients. States are also required to find that the rates are reasonable and adequate to meet the necessary costs of an efficiently operated hospital while assuring Medicaid patients reasonable access to inpatient hospital care. States must comply with these requirements to be eligible for federal funds. Under Pennsylvania's Medicaid program, known as the Medical Assistance Program or "MAP," the DPW makes payments directly to providers of medical services on a "fee for service" basis. Until 1984, MAP through DPW reimbursed hospitals based on their actual costs. In the face of spiraling health care costs, however, in 1984, DPW adopted a prospective payment system. "Under that system, the operating costs of most acute care inpatient hospital stays are reimbursed by a flat payment per discharge that is a multiple of the hospital's payment rate and a relative value assigned to the diagnostic related group (`DRG') into which the particular case falls." Stated differently, in most cases, the patient's diagnosis determined what DPW would pay, rather than the length of the patient's stay in the hospital or the intensity of the care received there. Certain hospitals, such as Hospital in this case, were, however, still entitled to additional payments because they served a disproportionate share of indigent patients. Hospital also received additional payments to defray capital costs and in recognition of its status as a teaching hospital, for which the cost of providing medical care is higher than at a community hospital. ... In the mid-1980's, pursuant to § 1915(b) of the Social Security Act, 42 U.S.C. § 1396(n)(b), Pennsylvania obtained a waiver from some of the federal Medicaid program requirements. Section 512 1915(b), as interpreted at that time by the federal agency responsible for approving waivers, allowed states flexibility, subject to certain limitations, in developing innovative, cost-effective, and efficient programs for providing care to indigent populations while maintaining access to and quality of care for those populations. Pursuant to the waiver provision, DPW instituted an experimental program known as "HealthPASS" under which Medicaid recipients in certain sections of southern and western Philadelphia were required to enroll in a Medicaid managed care company. The managed care company, appellee Healthcare Management Alternatives, Inc. ("HMA"), contracted with DPW to provide inter alia, in-patient hospital services to persons in the targeted region who were eligible for Medicaid. HMA did not, however, provide medical services directly; rather, it entered into contracts with various health care providers, including Hospital, to provide such services. These contracts were subject to DPW approval. The contract between HMA and DPW described HMA as a "health insuring organization" ("HIO"), defined as an entity which assumes an underwriting risk to pay for medical services provided to recipients in exchange for a premium or subscription charge paid by the state agency. DPW therefore agreed to pay HMA a "capitation payment," defined as a monthly payment for each recipient enrolled under the contract at the rates specified by the contract. While recognizing that DPW was responsible for prudently spending state and federal funds, the contract also recognized that HMA was a for-profit corporation. As a result, the contract provided a system of either refunds or credits under certain specific circumstances. As HMA's chief witness testified, however, "HMA made money by spending less than it received from DPW. The focus of the HIO was basically to try to control or limit some hospitalizations and pass that money onto the other providers." (Testimony of Richard Braksator, 3/16/99, at 6, R.R. at 1632a). Pursuant to HMA's contract with DPW, HMA entered into a contract with Hospital in 1991 to provide services to HealthPASS participants. According to Mr. Braksator, the terms of such contracts were set by negotiation. In the April 1, 1991 contract, Hospital agreed, inter alia, to provide inpatient hospital services to Medicaid recipients in the HealthPASS region in consideration for which HMA would pay Hospital at a rate of 114% of the relevant DRG rate. (R.R. at 99a.) By its terms, the contract remained in effect until June 30, 1993. During the contract period, Hospital would handwrite the applicable amount due under the contract for inpatient hospital care in the "Remarks" section of forms UB-82 and UB-92, the forms Hospital used to bill HMA. Hospital provided this service for the benefit of HMA, which lacked the computer software necessary to calculate the amount. (Testimony of Richard Braksator, 3/16/99, at 13, R.R. at 1639a.) By letter dated April 20, 1993, Hospital informed HMA of its intent to re-negotiate its existing arrangement with HMA. As the trial court found, "[Hospital] advised HMA by letter that it wished to renegotiate its payment arrangement with HMA and did not wish to extend the current contract. [Hospital] had concluded that HMA's payments were no longer adequate." (Trial Court Opinion, 4/23/99, at 3, finding of fact 13, citing Hospital's Exhibit 4 and Lux testimony at 90-94.) Nevertheless, after 513 the contract expired in June of 1993 and through the period in controversy, until 1997, Hospital continued to hand-post the adjusted DRG rate on the UB-82's and UB-92's it submitted to HMA for payment. During the period in dispute, however, specifically in March and April of 1994, the parties exchanged several letters. In the first letter, dated March 15, 1994, HMA indicated that it had previously extended the prior rate arrangements in anticipation of receiving Hospital's proposal to renew its participation with HMA. (R.R. at 102a.) HMA concluded by indicating that it "will reimburse [Hospital] at the out of area rate paid to all non-contracted facilities."6 Hospital responded by letter dated March 24, 1994, in which Herbert White, the Hospital agent to whom HMA's March 15th letter had been directed, indicated dismay with HMA's March 15th letter for two reasons: first, because Hospital had previously made it clear that it intended to bill and collect its published charges from all non-contracted third-party payers such as HMA; and second, because Hospital had never agreed to extend the previous agreement. HMA answered by letter dated April 8, 1994, in which it acknowledged that Hospital considered the expired rate agreement no longer valid. The April 8, 1994 letter also indicated that because Hospital was negotiating in good faith, HMA was willing to leave the expired rate in effect until negotiations were complete; otherwise, it would reimburse Hospital at the rate of $ 705 per diem. Hospital replied by letter dated April 26, 1994, flatly rejecting the out-of-area rate and reiterating its position that "to the extent that a future agreement results in a contractual gap in our relationship, [Hospital] will expect payment at full charges for any services provided during that gap."7 During the period from January 1, 1994 to January 31, 1997, Hospital submitted hundreds of claims to HMA for payment.8 Each claim itemized Hospital's published charges for each service provided, and also included the hand-posted DRG code and corresponding adjusted DRG rate in the "Remarks" section. (See R.R., vol. 2 at 478a-928a.) HMA paid the amount written in the "Remarks" section for most of these claims, but only paid the $ 705 per diem rate set for out-of-area non-contracting providers for others. (Braksator testimony, 3/16/99 at 42, R.R. at 1668a.) In December 1997, when HMA refused to reimburse Hospital for the difference between what HMA had paid and Hospital's published charges for these claims, Hospital brought suit, alleging that "the surrounding circumstances, the ordinary course of dealing and the common understanding within the hospital and health care industry created an implied contract between HMA and [Hospital] for the payment of [Hospital's] reasonable charges as set forth in [Hospital's] bills ...."9 Following a non-jury trial, the trial court found an implied contract in favor of HMA, stating that Hospital evidenced its intent to accept HMA's offer to continue the terms of the 1991 contract when it wrote the DRG amounts in the "Remarks" portion of the UB-82's and UB-92's. (Trial Court Opinion, 4/23/99, at 6-7.) The trial court further concluded that Hospital, by asking for full payment for services rendered, "is asking this court to circumvent the base DRG Medicaid rates set by DPW and mandated by federal law. As the law does not violate the constitution, this court cannot and will not presume to act as a legislature." (Id. at 7.) 514 ... The parties agree that the written 1991 contract had expired by its terms on June 30, 1993. (See Lux testimony, 3/15/99, at 113, R.R. at 1452a; Braksator testimony, 3/16/99, at 18, R.R. at 1644a.) Furthermore, neither party avers the existence of an oral contract. As a result, during the relevant time period, if a contract existed at all, its existence was premised on the parties' conduct. In this case, it is undisputed that HMA offered in writing to extend the terms of the 1991 contract until the parties reached an agreement as to the terms of a new contract. It is also undisputed that the parties continued to engage in a course of conduct similar to that established by their prior agreement: Hospital provided medical services to HealthPASS participants and submitted forms UB-82 and UB-92 reflecting both its published charges and the adjusted DRG rate. HMA then paid for Hospital's services, most frequently basing its payments on the hand-written adjusted DRG rate, which was calculated using the base DRG rate for Hospital prior to July 1, 1993, but sometimes paying the $ 705 per diem rate. This course of conduct continued from June 30, 1993 through January 31, 1997. 6 This rate amounted to $ 705 per diem, well below Hospital's medical assistance cost-per-day of $ 1,204. 7 The parties apparently negotiated a new contract in January 1997, when the Health-PASS program ended. Mr. Braksator did not know whether the subject of retroactivity arose during contract negotiations because he was not a party to those negotiations. 8 Hospital's complaint sets the number at more than 250; however, the record contains more than 450 claims. 9 The trial court found that Hospital established its published rates, which were equivalent to or lower than the rates of other Philadelphia hospitals, after considering what other hospitals were charging for similar services. Temple University Hospital, Inc. v. Healthcare Management Alternatives, Inc., 764 A.2d 587, 589-593 (Pa.Super.2000) (internal footnotes at conclusion of text.) ¶ 3 Finding Hospital's actions did not manifest assent to extension of the 1991 contract and that no implied contract existed between the parties, this Court reversed and remanded the case. Evidentiary hearings were conducted on December 10 and 11, 2001. Thereafter, the trial court determined that Hospital was entitled to receive payment at its published rates, based upon a common law theory of contract law. ¶ 4 HMA appeals and raises the following questions for our review. 1. Whether the trial court abused its discretion when it denied HMA's request for post-trial relief and awarded Temple its full published charges on a quasi-contract theory where Temple did not meet its burden of proving that HMA had been unjustly enriched considering that HMA had paid Temple $2 million for the services provided. 2. Whether the trial court committed an error of law when it denied HMA's request for post-trial relief and awarded Temple its full published charges based on its finding that those charges were "not unconscionable" instead of determining the reasonable value of the services provided by Temple as required by Pennsylvania law. 3. Whether the trial court abused its discretion when it denied HMA's request for post-trial relief and awarded Temple its full published charges although the court acknowledged 515 that full published charges were "commercially unreasonable." 4. Whether the trial court abused its discretion to the extent it relied on a theory of estoppel in awarding Temple its full published charges where there was no record evidence of detrimental reliance by Temple. (Appellant's brief at 3.) The role of an appellate court in reviewing the trial court's final judgment is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in the application of law. Furthermore, the findings of the trial judge in a nonjury case must be given the same weight as a jury verdict and will not be disturbed on appeal absent error of law or abuse of discretion. When this Court reviews the findings of the trial judge, the evidence is viewed in the light most favorable to the victorious party below and all evidence and proper inferences favorable to that party must be taken as true and, conversely, all unfavorable inferences rejected. Tagliati v. Nationwide Ins. Co., 720 A.2d 1051, 1052-1053 (Pa.Super.1998), appeal denied, 559 Pa. 706, 740 A.2d 234, (1999), quoting Romano v. Nationwide Mutual Fire Insurance Co., 435 Pa.Super. 545, 646 A.2d 1228, 1231 (1994) (citations omitted). ¶ 5 While this Court in Temple I reached a different conclusion of law than the trial court, holding no implied contract existed, we left relatively untouched the findings of fact which drive the resolution of this case, Temple II. In determining the outcome of Temple II, the trial judge relied on common law principles of contract, which are broad enough to incorporate the concepts of quasi-contract and include the element of unjust enrichment. ¶ 6 Upon review of the record,[3] it is clear that the disposition of this matter must be guided by the principles pertaining to a quasi-contract. A quasi-contract imposes a duty, not as a result of any agreement, whether express or implied, but in spite of the absence of an agreement, when one party receives unjust enrichment at the expense of another. In determining if the doctrine applies, we focus not on the intention of the parties, but rather on whether the defendant has been unjustly enriched. The elements of unjust enrichment are "benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value." The most significant element of the doctrine is whether the enrichment of the defendant is unjust; the doctrine does not apply simply because the defendant may have benefited as a result of the actions of the plaintiff. Where unjust enrichment is found, the law implies a quasi-contract which requires the defendant to pay to plaintiff the value of the benefit conferred. In other words, the defendant makes restitution to the plaintiff in quantum meruit. AmeriPro Search, Inc. v. Fleming Steel Co., 787 A.2d 988, 991 (Pa.Super.2001) (internal citations omitted.) ¶ 7 Contrary to HMA's argument Hospital failed to establish that it was unjustly enriched, I find the benefit received by HMA to be well documented in the record. During the time in question, and despite the expiration of the 1991 written contract with HMA, Hospital continued to treat HealthPASS participants as it is required 516 to do pursuant to the Emergency Medical Treatment and Active Labor Act, 42 USCS § 1395dd. The record supports the trial court's finding, "HMA was a fiscal intermediary for federal Medicaid funds that was administered by the Commonwealth of Pennsylvania Department of Public Welfare. The HealthPASS program placed Medicaid patients in an HMO program whereby intermediaries paid for their hospital treatment. Thus, [Hospital] was a third-party beneficiary of the contract for care between the HMO and the Medicaid recipient." Trial Court Opinion, Cohen, J., 4/10/02, at 7. ¶ 8 Further, I believe the evidence fully supports the trial court's conclusion Hospital was entitled to request payment at the rate of its published charges. The evidence supports the conclusion Hospital's published rate is the same or less than other Philadelphia hospitals. Moreover, there was no credible evidence presented to suggest the published rate was unconscionable, and there is no language in the applicable federal or state legislation that prohibits Hospital, under the circumstances of this case, from charging its published rates. In the absence of a contract with HMA, which serves as the intermediary between DPW and the hospitals and has a stated goal of minimizing Medicaid payment to providers which can be accomplished only by good faith negotiation with said providers, Hospital had no recourse but to rely upon its published charge. As stated in the briefs of the parties, and adopted by this Court in both its prior and present Opinions, hospitals have no choice under federal and state law but to accept indigents in emergency care and, to the extent they treat such patients without reasonable compensation, the burden is thrust upon paying patients or insurers under non-government programs to assume the cost of that care. When hospitals are required to enter into non-compensatory or inadequately compensated treatment, their ability to service the community will sooner or later be eliminated through bankruptcy, merger with a more productive cost effective institution, or reliance on a non-contractual modality, as here, where Hospital's established published rates are based on the community standard and are equivalent to rates equal or lower than the rates charged by other Philadelphia hospitals. See Temple I, Statement of Facts, footnote 9. HMA's negotiated rates may only substitute for published rates if they are negotiated fairly, with reasonable payment to Hospital, rather than being imposed arbitrarily. ¶ 9 HMA argues the trial court erred in evaluating the appropriateness of the charges based upon an analysis of whether the charges were unconscionable. HMA maintains that this matter requires application of a "reasonable value" standard. ¶ 10 A "reasonable value standard" may be the only yardstick by which programs such as HMA and HealthPASS can prudently assign a cost for services provided. This remains true despite the cost effectiveness of such programs to taxpayers, government entities and institutions. What constitutes a "reasonable value," however, while a matter of much debate among medical care providers and commercial health insuring organizations, is a matter not to be decided by this Court.[4] "In the absence of an express agreement as to amount, the law implies a promise to pay for a physician's services as much 517 as they are reasonably worth. Professional services are worth what they are rated at on the professional market. The physician has his services to sell, the patient agrees to buy them and pay for them the customary price. When the services are properly rendered the patient has received what he has contracted for and has necessarily received legal benefit. Even when the agreement is completely the creation of the law the implied promise is to pay for the services what they are ordinarily worth in the community." Eagle v. Snyder, 412 Pa.Super. 557, 604 A.2d 253, 259 (1992), quoting Husik v. Lever, 95 Pa.Super. 258, 260, 1929 Pa.Super. LEXIS 24, **3 (Pa.Super.1929) (emphasis added.) ¶ 11 The trial court, as the fact finder, reviewed Hospital's published rates and found the evidence supported the finding that HMA's payment of the published rates would not cause it any undue hardship. As clear example of the disparity between payment proposed by HMA in relation to Hospital's medical assistance cost per day, we need only look to footnote 6 of Temple I, wherein it states Hospital would be reimbursed $705 per diem, well below Hospital's medical assistance cost per day of $1,204a disparity of 58.5%. Hospital could not survive financially if this rule were imposed across the board. While Hospital might have an advantage by refusing to enter into a contract, HMA has the definite advantage in negotiations due to the imposition of the law requiring Hospital to treat indigent patients at whatever rate it can negotiate or, in the alternative, free of charge. I find no support for HMA's argument that payment of the published rates would cause it undue hardship. ¶ 12 Contrary to what HMA and DPW argue, I believe in this case the denial of payment based upon published rates will be destructive of the HMA-HIO/DPW system of regulating hospital costs while assuring adequate emergency and other hospital care for Medicaid and indigent persons. The denial to hospitals of a fair return by HMA/DPW under a "reasonable basis contract," while hospitals remain compelled under law to accept such indigent patients, will assure the demise of the system of hospitals in this country, and result in unjust enrichment to HMAs and the perversion of federal regulation governing this area of Medicaid law. ¶ 13 Based upon the foregoing, I would affirm the April 10, 2002 judgment in the amount of $4,310,494.34 plus interest from January 31, 1997. NOTES [1] Having determined that the majority of the original record was misplaced prior to the time for filing the certified record with this Court, this Court questioned the parties at oral argument with respect to the missing record. Conceding that the original record was lost and choosing not to have the trial court reconstruct the original record, the parties agreed to this Court's reliance upon the documents contained within the Reproduced Record for purposes of this appeal. Accordingly, the certified record in this case shall be comprised of the following: the small portion of the original record filed with this Court (Part I) and Volumes 1-4 of the Reproduced Record (now, Parts II-V of the certified record). [2] DPW has filed an amicus curiae brief in support of Healthcare. In that brief, DPW has raised issues that were not raised by Healthcare. These contentions are not properly before us for resolution. "An amicus curiae is not a party and cannot raise issues that have not been raised or preserved by the parties. See Pa. R.A.P. 531(a) (amicus curiae may file brief regarding only those questions that are before the Court)." Commonwealth v. Tharp, 562 Pa. 231, 236 n. 5, 754 A.2d 1251, 1254 n. 5 (2000). [3] See footnote one (1), majority Opinion. [4] The majority's second remand of this case to establish "reasonable value" as a non-negotiated determination is totally beyond the capacity of the trial court. See Temple University Hospital, Inc. v. Healthcare Management Alternatives, Inc., 764 A.2d 587, 592 n. 9 (Pa.Super.2000).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518516/	639 S.W.2d 659 (1982) Luther MASSENGALE, Appellee, v. Richard HICKS and Hicks & Associates, Inc., Appellants. Court of Appeals of Tennessee, Eastern Section. June 25, 1982. Permission to Appeal Denied October 4, 1982. H. Stan Guthrie of Morgan, Garner, Wood & Guthrie, Chattanooga, for appellants. Clarence Shattuck of Shattuck & Durby, Chattanooga, for appellee. Permission to Appeal Denied by Supreme Court October 4, 1982. *660 OPINION PARROTT, Presiding Judge. Richard Hicks and Hicks & Associates, Inc., an insurance agency, have appealed from a judgment in the amount of $25,777.07 entered in according with a jury verdict finding the defendants failed to procure a replacement insurance policy for the plaintiff. In this appeal it is insisted a verdict should have been directed for the defendants because there was no proof from which a jury could find there was an implied contract between the parties obligating the defendants to procure insurance for the plaintiff. The pertinent facts presented to the jury are as follows: The plaintiff, Luther Massengale, had an insurance policy on a 1975 Pontiac which had been procured by defendant, Richard Hicks, who formerly worked for the Caldwell & Associates Insurance Agency. Mr. Hicks had been the insurance agent for the Massengale family since July 1964. In July 1977, plaintiff received a notice of nonrenewal which stated the policy would expire at 12:01 A.M. Standard Time on September 12, 1977. On September 12, 1977, between 9:30 p.m. and 10:00 p.m. plaintiff was involved in an automobile accident which resulted in judgments against him totalling $22,427.07, damages to his car in the amount of $2,700.00, and he incurred $750.00 attorney fees. Immediately after receiving the notice, plaintiff's mother, Barbara Hutton, advised Richard Hicks about the notice. Mrs. Hutton testified that Mr. Hicks said he "would take care of it." On four other occasions Mrs. Hutton discussed the insurance policy with Mr. Hicks. The last mention of the policy was on Wednesday before the Friday accident. Also plaintiff, on two occasions, discussed with Mr. Hicks a policy replacement. We find there is an abundance of evidence from which the jury could find that Richard Hicks did agree to procure replacement insurance. Appellants strenuously argue that both plaintiff and his mother knew that plaintiff would have to be covered by a nonstandard insurance policy which, before it could become effective, an application must be signed and premium paid in full. It is argued that because of this knowledge plaintiff knew that no insurance policy had ever been issued. The contract here is not that a policy of insurance had issued but that defendant Hicks' promises and actions were the insuring agreement relied upon by the plaintiff. It is a universal general rule that an agent or broker of insurance who, with a view to compensation for his services, undertakes to procure insurance for another, and unjustifiably and through his fault or neglect, fails to do so, will be held liable for any damage resulting therefrom. See Broker's Failure to Procure Insurance, 64 A.L.R. 3d 398, p. 410; 44 C.J.S. Insurance § 225; Appleman, Insurance Law and Practice § 8721, et seq. Appellants further insist that the amount of money that two of the insured parties had received from their uninsured motorist carrier prior to the time the case was tried should be credited against or deducted from the judgment rendered against them. We find no merit in this insistence. By statute the uninsured motorist carrier who has paid under its policy has a right to subrogation. T.C.A. XX-X-XXXX. Further, by statute the payment by the uninsured motorist carrier in no way constitutes the satisfaction of the liability of the party responsible which is the plaintiff in this instant. For the reasons given, the judgments are affirmed with costs taxed to appellants. SANDERS and FRANKS, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518504/	639 S.W.2d 761 (1982) George NUGENT, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Supreme Court of Kentucky. August 31, 1982. Rehearing Denied November 2, 1982. 762 William E. Scent, Kenneth S. Matheis, Charles R. Simons, Wyatt, Tarrant & Combs, Louisville, for appellant. Steven L. Beshear, Atty. Gen., Eileen Walsh, Asst. Atty. Gen., Frankfort, for appellee. OPINION OF THE COURT George Nugent was charged by the Jefferson County Grand Jury with the September 29, 1980 intentional murder of Clark L. Kelly, III. Trial by jury was held, and, on May 16, 1981, the jury returned a verdict of guilty and recommended a sentence of 40 years imprisonment. His appeal is before us as a matter of right. We reverse. On appeal, Nugent argues: (1) that the evidence was not sufficient to support the conviction; (2) that the trial court committed prejudicial error in admitting opinion evidence as to Nugent's guilt; (3) that the trial court erred in admitting an out-of-court contradictory statement of a witness; (4) that the prosecutor improperly commented on his constitutional right to remain silent; and (5) that a search warrant for his residence was not supported by probable cause. I. DID THE EVIDENCE SUPPORT THE CONVICTION? On Wednesday, October 1, 1980, Kelly's body was discovered in a pile of dirt and 763 debris on the premises of the Nugent Sand Company, which is adjacent to the Ohio River, in Eastern Jefferson County. Kelly had been shot five times with a .22 caliber weapon. The company is owned and operated by appellant's family and appellant is a regular employee. On Monday evening, September 20, 1980, at approximately 8:30 p.m., Kelly, Peter Margerum, Lee Early and Kathy Brown met at a restaurant which is a short drive from the sand company. Shortly thereafter, Kelly left the restaurant to deliver four ounces of cocaine to appellant. When 45 minutes had lapsed and Kelly had not returned, Kathy Brown telephoned the sand company and talked to the appellant. Appellant informed her that Kelly had been there, but had left approximately 20 minutes ago. This call occurred at approximately 10:15 p.m. Following the call, the three friends drove to the sand company. Upon arriving, they saw Kelly's van parked near the company offices. Kathy Brown went into the building and talked to appellant who appeared to be very upset and nervous. He told her that Kelly had come to the office by himself but had departed earlier. She then drove back to the restaurant but was unable to locate Kelly. She returned to the sand company where she accompanied Early into the office to question appellant. He informed them that he had given Kelly $7,500 to purchase four additional ounces. Margerum and Early left and went to Kelly's home, where they were unable to locate him. They immediately returned to the sand company, where Kathy Brown had waited with appellant. About midnight, Kelly's three friends returned to his apartment, still unable to locate him. On Tuesday, September 30, 1980, at approximately 11:00 a.m., Early and Margerum returned to the sand company and again talked to the appellant. At appellant's request, they drove Kelly's van back to the apartment. The next morning, October 1, 1980, Kelly's body was discovered. An investigation revealed that there were vehicular tracks leading to the place where the body had been buried. The tracks were made by a payloader which was owned by the company and regularly parked near its offices. The payloader had been driven to the isolated area of the sand company premises and had apparently been used in a somewhat amateurish manner in an effort to conceal the body. Michael Scott, a regular employee of the sand company, saw appellant operating a payloader the evening of September 29. Scott stated that this occurred "around" 9:00 p.m. and was in the area where the body was discovered. The dump area was blocked off by a row of empty barrels. Payloader tracks showed that the vehicle had gone through the barrier and returned to its parking area. Furthermore, even though it was established that appellant owned a .22 caliber revolver, the revolver disappeared from his car between September 29, and October 2, when a search was made. Additional testimony indicated that Kelly may have owed appellant a sum of money. Basically, appellant argues that the evidence presented does not support the jury's verdict. He attacks it as circumstantial, inconsistent, failing to show a motive and being as consistent with innocence as with guilt. Admittedly, the evidence against the appellant (who did not testify in his own behalf) is purely circumstantial. However, such evidence is sufficient to support a criminal conviction so long as the evidence, taken as a whole, shows it would not be clearly unreasonable for the jury to find the defendant guilty. Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977). That which a jury may reasonably believe to have been probable is sufficient to support a finding of guilt. Probability has been defined as "more likely than not." Timmons v. Commonwealth, Ky., 555 S.W.2d 234 (1977). We believe that the evidence adduced and described above supports that it was not unreasonable for the jury to find that the appellant did shoot and kill Clark Kelly. Kelly and Nugent were alone, and 764 completed a drug transaction which involved a considerable sum of money. Appellant owned a .22 caliber revolver, which disappeared after the killing. Moreover, one of appellant's employees identified appellant as driving a payloader in the area where Kelly's body was found during the approximate time when Kelly was killed. Appellant's described conversations with Kelly's three friends are consistent with a finding of guilt. Under the test of Trowel, supra, we will not disturb the verdict of the jury. II. DID THE TRIAL COURT COMMIT PREJUDICIAL ERROR IN ADMITTING OPINION EVIDENCE AS TO APPELLANT'S GUILT? Paul Bryant, an employee of Nugent Sand Company, testified for the prosecution. His testimony disclosed that he had given two statements to the police: one on Friday, October 3, 1980, and another on Tuesday, October 7, 1980. On direct examination, no reference was made to the first statement and the second statement was used only to refresh the witness's memory. On cross-examination, in an attempt to impeach his credibility, defense counsel introduced a handwritten change which had been made in the second statement. The change described appellant's statement to Bryant that the middle man (Kelly) was going to be dead when he was found. Emphasis was placed on the fact that Bryant had told the interviewing officer that he had always wanted to be a policeman. This fact was used by defense counsel in an attempt to show that Bryant was "playing detective" in the investigation of the Kelly murder, and in so doing, had been influenced by the police. Specifically, defense counsel was attempting to show the witness' state of mind at the time of the first statement. Because of the prosecution's belief that the defense counsel had put the witness' "state of mind" at issue, on re-direct examination, Bryant was asked to read a previously undiscussed portion of the statement. It disclosed that in response to the interviewing officer's question as to whether Bryant thought that appellant had "dropped the hammer" on Kelly, Bryant had stated "I think he did, you know if you want the honest to God truth." In essence, the trial court permitted the introduction of a written statement which elicited the opinion of a witness as to appellant's guilt. The Commonwealth argues that since the defense counsel had "opened the door" by inquiring into the witness' state of mind (as appeared in the first written statement) the prosecution had the right to bring out all that was said on the subject. We do not agree. A witness, in a criminal case, may be impeached by showing he made a prior contradictory statement or by contradictory evidence. Such evidence is not admissible for that purpose unless it pertains to a material matter. Caulder v. Commonwealth, Ky., 339 S.W.2d 644 (1960). Moreover, where the value of evidence for a legitimate purpose is slight and the jury's probable misuse of the evidence for an incompetent purpose is great, the evidence may be excluded altogether. Caulder, supra, McCormack on Evidence, (1954), Sec. 59, p. 136. Clearly Bryant's opinion as to appellant's guilt is not admissible. Kennedy v. Commonwealth, 77 Ky. (14 Bush) 340 (1878), Koester v. Commonwealth, Ky., 449 S.W.2d 213 (1969); Deverell v. Commonwealth, Ky., 539 S.W.2d 301 (1976). As we examine this issue, it is unnecessary to decide whether the entire written statement of Bryant's is admissible to show his "state of mind." We hold that it was clearly erroneous to admit into evidence Bryant's opinion as to appellant's guilt. Kennedy, Deverell and Koester, supra. Even if the statement is technically admissible into evidence, it is obvious that the purpose was incompetent. Caulder, McCormack, supra. The issue of guilt or innocence is one for the jury to determine, and an opinion of a witness which intrudes on this function is not admissible, even through a route which is, at best, "back door" in nature. As we said in Kennedy, in reference to similar testimony, "No lawyer 765 would think of offering such evidence in chief." Id., at p. 359. Due to the nature of the evidence, and its highly prejudicial effect on the jury, we believe the trial court erred in admitting the evidence. III. DID THE TRIAL COURT COMMIT ERROR IN ADMITTING AN OUT-OF-COURT CONTRADICTORY STATEMENT OF A PROSECUTION WITNESS? The Commonwealth called Erick Munson as a witness. On direct examination, he testified that he had known appellant and Peter Margerum for some time. He testified that he had had a conversation with Margerum several weeks after the discovery of Kelly's body. Munson denied that he had told Margerum that appellant had said to him that if Kelly didn't come up with his (appellant's) money, he would kill him. The Commonwealth then called Margerum as a witness. He testified that Munson had, in fact, made such a statement to him. In Jett v. Commonwealth, Ky., 436 S.W.2d 788 (1969), we held that out-of-court statements of a prosecution or defense witness can be received as substantive evidence. There are four prerequisites to such admission: (1) both the person who is alleged to have made the out-of-court statement and the person who says he made it must appear as witnesses, and be subject to cross-examination; (2) a foundation must be laid by asking the witness about the statement; (3) the questioned statement must be contradictory to the witness' incourt testimony or, at least, must provide relevant information which the witness cannot remember at the trial, and, (4) the statement must be material and relevant to the issues of the case. In Jett, we rationalized our ruling: "When both the person who is said to have made the out-of-court statement and the person who says he made it appear as witnesses under oath and subject to cross-examination there is simply no justification for not permitting the jury to hear, as substantive evidence, all they both have to say on the subject and to determine wherein lies the truth, . . . Id., at p. 792. In this case, Munson was called as a witness for the Commonwealth. He had known both appellant and Margerum for quite some time. He had had a conversation at his home with Margerum after Kelly's body had been found. Munson denied that he had told Margerum that appellant had said if Kelly didn't come up with his money, he would kill him. Margerum, however, testified that Munson had made such a statement to him. All the requirements of Jett are present. There is no reason why the jury should not hear what "both have to say on the subject and to determine wherein lies the truth." Id., at 792. IV. DID THE PROSECUTION IMPROPERLY COMMENT ON THE APPELLANT'S RIGHT TO REMAIN SILENT? Appellant owned a .22 caliber revolver which had disappeared after the homicide. In his closing argument, the prosecutor enumerated evidence which he felt pointed to appellant's guilt. He stated: "No. 4: George Nugent, Smith & Wesson,.22 * * * After Corky Kelly comes out of the ground, that .22 caliber has vanished into thin air. Now, I'll say again: I wonder what would happen if there was a drain plug out in the Ohio River." Appellant argues that this statement constituted a comment on his failure to testify. He claims the message given to the jury was that appellant owned a pistol and failed to testify, thus offering the jury an explanation of its disappearance. This argument, at best, is tenuous. The remark is ambiguous and indirect but should not be construed in its most damaging meaning. Donnelly v. DeChristoforo, 416 U.S. 637, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974). The remark may be argumentative but it constituted no more than fair comment on the evidence. Hunt v. Commonwealth, Ky., 466 S.W.2d 957 (1971). We find no error and no prejudice here. *766 V. WAS ISSUANCE OF THE SEARCH WARRANT SUPPORTED BY PROBABLE CAUSE? The warrant to search appellant's residence authorized a search for and a seizure of any personal property belonging to the decedent, any firearms, contraband or narcotics. The affidavits of two detectives investigating the case were submitted to support the issuance of the warrant. The affidavits recited that Peter Margerum had told them about the cocaine deal between Kelly and appellant; that Margerum told them about the meeting at the restaurant before the delivery of the cocaine to appellant; that Kelly's body was found buried on the premises of Nugent Sand Company; that an employee of the sand company had stated that appellant owned a .22 caliber weapon. In addition, the affidavit described the results of an extensive, independent investigation supporting these facts. Based on the statements in the affidavits, the issuing judge had sufficient detail to rely on something more reliable than a casual rumor. Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). There were reasonable grounds for believing that the property sought to be discovered was on the premises to be searched. Robinson v. Commonwealth, Ky., 550 S.W.2d 496 (1977). Under these circumstances, the search warrant was properly issued. The judgment of the trial court is reversed and remanded. PALMORE, C.J., and AKER, CLAYTON, O'HARA, STEPHENS and STERNBERG, JJ., concur. STEPHENSON, J., dissents. STEPHENSON, Justice, dissenting. I agree that it was error to permit the jury to hear that portion of Bryant's statement which expressed an opinion as to guilt. However, in the context in which this error was committed and in view of the other evidence in the case, I am of the opinion there is no substantial possibility that the result would have been any different. I would affirm the case and accordingly dissent.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518515/	639 S.W.2d 9 (1982) Ronald M. DIXON, Appellant, v. The STATE of Texas, Appellee. No. 05-81-00354-CR. Court of Appeals of Texas, Dallas. May 18, 1982. Rehearing Denied August 26, 1982. 10 Vincent W. Perini, Dallas, for appellant. Henry Wade, Dist. Atty., W. T. Westmoreland, Jr., Asst. Dist. Atty., for appellee. Before CARVER, STOREY and ALLEN, JJ. ALLEN, Justice. This is an appeal from a conviction for murder. Following a verdict of guilty the jury assessed punishment at life imprisonment. Appellant raises nineteen grounds of error on appeal. In his second ground he claims that the trial court erred in admitting the testimony of a hospital nurse as to a statement made to her by appellant while he was in custody at the hospital. We agree and thus reverse and remand. Appellant was sixteen years old when the offense occurred. He was charged with causing the death of another by committing a dangerous act while engaged in the felony of unauthorized use of a motor vehicle. The evidence shows that appellant was driving a motor vehicle without the owner's consent when it collided with a police car during a high speed chase. The collision caused the death of three people and injury to appellant. The juvenile court waived jurisdiction over appellant, and he was tried as an adult. The evidence shows that while appellant was in custody at the hospital recovering from his injuries a nurse asked him what had happened. Appellant replied, "We stole a car and had an accident." During the trial the nurse was allowed, over proper objection by appellant, to testify to this statement in the presence of the jury. At the time the statement was made, appellant was a juvenile, he was in custody, and the juvenile court had not waived jurisdiction over him. The admissibility of his statement was governed by the 11 provisions of the Family Code, notwithstanding the fact that the statement was used in a trial conducted after the jurisdiction of the juvenile court had been waived. Lovell v. State, 525 S.W.2d 511 (Tex.Cr. App.1975). Under Tex.Fam.Code Ann. § 51.09(b)(2) (Vernon Supp. 1982), the oral statement of a juvenile is only admissible if it leads to the discovery of evidence which tends to show the guilt of the accused, such as stolen property or an instrument used to commit the offense. There is no such corroboration here, so the statement was inadmissible. In the Matter of R.L.S., 575 S.W.2d 665 (Tex.Civ.App. El Paso 1978, no writ). The language of Tex.Fam.Code Ann. § 51.09(b)(2) (Vernon Supp. 1982) was added in 1975, apparently to make the oral statements of juveniles admissible on the same terms as the oral statements of adults, which were governed in 1975 by Tex.Code Crim.Pro.Ann. art. 38.22, § 1(e) (Vernon Supp. 1975-76).[1]See Dawson, Delinquent Children and Children in Need of Supervision, 8 Tex.Tech L.Rev. 119 at 132 (1976), and Steele, Criminal Law and Procedure, 30 S.W.L.J. 315 at 346, n.196 (1976). The courts have, for that reason, looked to the cases interpreting then article 38.22, § 1(e), for guidance in interpreting § 51.09(b)(2). In the Matter of R.L.S., supra; Meza v. State, 577 S.W.2d 705, 708 (Tex.Cr.App. 1979). The former article 38.22 read, in pertinent part, that a statement "made while the defendant was in jail or other place of confinement or in the custody of an officer shall be admissible if ... it be made orally and the defendant makes a statement of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed." The cases held that any statement made while in custody was governed by the article. Thus, a statement made by an inmate to other inmates while in jail was not admissible unless it led to the discovery of corroborating evidence. Jimmerson v. State, 561 S.W.2d 5 (Tex.Cr.App.1978) (En Banc); Easley v. State, 493 S.W.2d 199 (Tex.Cr. App.1973). This was the rule even if the statement was made voluntarily and spontaneously to persons other than law enforcement officers, so long as the appellant was in custody. The 1977 amendments to article 38.22 changed the language so that the question now is not whether the accused was in custody when the statement was made, but whether the statement was the result of custodial interrogation, as that term is used in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Thus, a statement by the accused to another inmate while in custody, which would clearly have been inadmissible under the doctrine of Jimmerson v. State, supra, has been held admissible because of the 1977 amendments to Tex.Code Crim.Pro.Ann. art. 38.22 (Vernon 1979). May v. State, 618 S.W.2d 333, 348 (Tex.Cr.App.1981) (En Banc). The results we reach would be different had Tex.Fam.Code Ann. § 51.09(b)(2) (Vernon Supp. 1982) also been amended, so as to demonstrate a legislative intent to alter the rule governing the admissibility of a juvenile's oral statement. However, it was not. The juvenile's statement was not admissible and was inculpatory in nature, thus we cannot say its receipt into evidence was harmless. Smith v. State, 514 S.W.2d 749, 753 (Tex.Cr.App.1974); Easley v. State, 493 S.W.2d 199, 201 (Tex.Cr.App.1973); see Stone v. State, 612 S.W.2d 542, 547-548 (Tex.Cr.App.1981). We find that the error committed requires reversal. Appellant contends in his first ground of error that the trial court did not have jurisdiction over him because the jurisdiction of the juvenile court over the offense had not been waived. We disagree. The indictment alleged ownership of the automobile in Albert Wright. The waiver of jurisdiction and transfer order alleged, inter alia, Sandra Wright to be the complainant in the unauthorized use of a motor 12 vehicle complaint. The petition for waiver of jurisdiction alleged ownership of the vehicle in Sandra Wright, as did one of the complaints that accompanied the transfer order. Therefore, appellant contends the juvenile court never transferred its jurisdiction over the offense of authorized use of a motor vehicle owned by Albert Wright. A similar contention was successfully raised in Ex parte Allen, 618 S.W.2d 357 (Tex.Cr.App.1981) (En Banc), but on facts quite different from those presented by this case. In Allen the accused was the subject of two petitions in juvenile court, one alleging capital murder of one person on one date, and another alleging attempted murder of another person on another date. The State filed two motions to waive jurisdiction one for each offense. At the certification hearing only evidence of the attempted murder was presented, and jurisdiction was waived by the juvenile court on that charge alone. The accused was indicted for three offenses, and was convicted of capital murder. The Court of Criminal Appeals ruled that jurisdiction over the capital murder charge was still in the juvenile court because the conduct on which it was based was never the subject of a transfer hearing; jurisdiction was never waived relating to the conduct resulting in the capital murder indictment. The court focused not on the different offenses, but on the different conduct underlying each. Because the conduct that was the basis for the capital murder charge was never the subject of a transfer hearing, jurisdiction remained in the juvenile court. In this case the conduct that was the basis for the murder indictment was the subject of the transfer hearing and order, and jurisdiction over the charge arising from that conduct was transferred. The listing of the complaining witness as Sandra Wright in the juvenile proceedings and the naming of the automobile owner as Albert Wright in the indictment does not mean the conduct dealt with in the indictment was not the conduct over which jurisdiction was transferred. Both the transfer proceedings and the indictment arose from the appellant's causing the death of others while engaged in the unauthorized use of a motor vehicle. Jurisdiction in the criminal district court was not defeated by the different allegations of ownership where the conduct that constituted the alleged offense of driving a motor vehicle without the owner's consent was the identical conduct investigated by the juvenile court. For the reasons stated we reverse the judgment of the trial court and remand the case for a new trial. ON STATE'S MOTION FOR REHEARING The State has timely filed its motion for rehearing in this cause contending that the error for which we reverse is harmless. After giving their contention full consideration, we disagree. The test for harmless constitutional error is not whether a conviction could have been had without the improperly admitted evidence, but "whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 827, 17 L. Ed. 2d 705 (1967). This test was applied by The Court of Criminal Appeals in Esquivel v. State, 595 S.W.2d 516, 529 (Tex.Cr.App. 1980) (En Banc). It is well established in Texas that this rule includes the assessment of punishment. See Jordan v. State, 576 S.W.2d 825, 830 (Tex.Cr.App.1978); Ex Parte Flores, 537 S.W.2d 458, 460 (Tex.Cr. App.1976). An appellate court cannot guess or surmise that the error is harmless, but must be able to determine from the record that the error did not affect the verdict. If the court cannot so find, it may not properly decide that the error is harmless. See Holloway v. Arkansas, 435 U.S. 475, 491, 98 S. Ct. 1173, 1182, 55 L. Ed. 2d 426 (1978). In the case before us the appellant was found guilty of causing another's death by committing a dangerous act while committing a felony. The jury assessed the maximum punishment allowed, life imprisonment. 13 Appellant's statement "We stole a car and had an accident" was improperly admitted into evidence. Whether or not the statement was made, and what meaning it had, were questions extensively developed before the jury by the direct and cross-examination of witnesses on presentation of the State's case in chief and in rebuttal. The statement was also referred to by the State when it argued to the jury that appellant knew the car he was driving was stolen, and that he had no remorse over that happened.[1] Though we might conclude that the testimony complained of is not necessary to support the conviction, Musgrave v. State, 608 S.W.2d 184, 190 (Tex.Cr.App.1980) (on State's Motion for Rehearing) (En Banc), we must be able to conclude from the record that the erroneously admitted evidence was harmless beyond a reasonable doubt. Jordan v. State, supra, at 830. In light of the prominence given to the erroneously admitted statement, we find that there is a reasonable possibility that its admissions might have contributed to appellant's conviction. We are unable to conclude from the record that the erroneously admitted statement was harmless beyond a reasonable doubt. This finding is further strengthened by the fact that the statement was used by the State in its argument on punishment. Although a life sentence may be appropriate under the facts of this case, that is not the question before us. If there is a reasonable possibility that the statement contributed to the length of appellant's sentence, and we cannot say from the record beyond a reasonable doubt that it did not, its admission is harmful, whether or not it is harmless on the question of guilt. Clemons v. State, 605 S.W.2d 567, 571-572 (Tex.Crim.App. 1980), Jordan v. State, supra at 830. For these reasons we cannot find the error harmless. The State's motion for rehearing is overruled. NOTES [1] Acts 1967, 60th Leg., p. 1740, ch. 659, § 23, eff. Aug. 28, 1967. [1] State's Attorney: ".... When he is in the hospital and everything is quiet, no threats then, the nurse walks in and says, what happened and did he say, I killed three men I don't know if I can live with it? No, he said we stole a car. That is all it meant to him."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518545/	639 S.W.2d 455 (1982) MARYLAND AMERICAN GENERAL INSURANCE COMPANY, Relator, v. Hon. Jack R. BLACKMON, Judge, Respondent. No. C-1104. Supreme Court of Texas. July 21, 1982. Fulbright & Jaworski, Tom Connally and Janice P. Kemp, Houston, Gary, Thomasson, Hall & Marks, Richard A. Hall, Corpus Christi, for relator. William F. Wallace, Jr., Corpus Christi, Hooper & Chappell, David F. Chappell, Fort Worth, for respondent. McGEE, Justice. This is an original mandamus proceeding concerning pretrial discovery in a suit brought by First State Bank of Bishop (Bank) against Relator, Maryland American General Insurance Company (Maryland American). The Bank is the real party in interest. Maryland American seeks an order from this Court compelling the Honorable Jack R. Blackmon, Judge of the 117th Judicial District Court in Nueces County, to vacate his orders requiring Maryland American to produce materials concerning the filing, investigation and evaluation of an insurance claim and requiring its attorney to appear for a deposition and produce his files. 456 This suit arose from losses sustained by the Bank resulting from its honoring of checks drawn on insufficient funds in certain customers' accounts and from loan transactions with these customers. The Bank determined these losses were caused by the dishonesty of its president, now deceased, and sought to collect on its bankers blanket bond (a fidelity insurance agreement) issued by Maryland American. After notifying Maryland American of its claim, the Bank in late 1970 initiated two lawsuits against the customers, the estate of its deceased president, and others, alleging inter alia losses caused by the dishonesty of its president. These lawsuits were eventually consolidated and Maryland American, who had previously intervened, was joined as a defendant with liability alleged under the terms of the bond. Maryland American denied liability but alternatively cross-claimed against the individual defendants for indemnity and subrogation should its liability be established. Beginning in 1972, the Bank filed a series of amended petitions in which it alleged Maryland American was liable for compensatory and punitive damages in addition to the bond claim as a result of the insurance company's "bad faith" failure to properly investigate and make payment under the bond. The pleadings allege Maryland American "consciously, willfully and fraudulently" refused to fulfill its obligations under the bond, asserting a cause of action in tort, and pleading statutory liability under the Texas Insurance Code and the Texas Deceptive Trade Practices Act. These will be referred to as the bad faith claims. In connection with the Bank's bad faith claims, the Bank in September 1981 served Maryland American with a Request for Production of the following materials pursuant to Rule 167:[1] 1. All documents, tape recordings, video tape recordings, photographs, or other recorded or reproduced documents and items related to or in any way pertaining to the filing of the insurance claim which is the basis of this litigation, the investigation by your company, its agents, servants, employees, or others of said claim, and all other such material related to or in any way connected with the filing and investigation of said claim. 2. All documents, memoranda, letters, notes, or otherwise written or recorded materials pertaining to or in any way related to the decision by your company to either pay or not pay the insurance claim which is the basis of this litigation. 3. All documents, memoranda, letters, notes, or otherwise written or recorded materials which in any way relate to or involves your company's policies with regard to payment of insurance claims of the type or similar to the type of insurance claim which is the basis of the above styled litigation, for the calendar year 1970 through the present. 4. All records of membership of all claim committees related to this claim, the minutes of all meetings of such committee or committees, and all memoranda or other records of communication to or from any member of these committees related to the subject claims of this Plaintiff, commencing December 1, 1970. (If there were or are more than one committee with jurisdiction of the subject claim, all minutes, memoranda, or communications of each such committee should be produced.) The Bank also requested an agreement from Maryland American's attorney that he would appear for a deposition to testify about subjects relating to the Bank's claims. In response, Maryland American filed a "Motion with Respect to Proposed Deposition of Counsel and Request for Production" in which it requested a protective order under Rule 186b on the basis that the documents and testimony sought by the Bank were privileged from discovery under the proviso in Rule 186a and the attorney-client privilege. 457 After two hearings on these and other related matters, the trial court rendered an order on March 4, 1982, compelling Maryland American to produce all documents requested by the Bank. The court further stated in the order that "no `in-camera' inspection of the materials ordered to be produced is appropriate ...." The following day, the court rendered a second order extending the deadline for production and ordering Maryland American's attorney to appear for a deposition and to produce all files, correspondence, records, and intra-office memoranda related to the Bank's cause of action. We granted Maryland American leave to file a petition for writ of mandamus and a temporary stay on discovery. We now grant the writ as set out below. Maryland American contends that Judge Blackmon abused his discretion in ordering the production of the materials requested by the Bank and the deposition of its attorney. Rule 186a defines the scope of permissible discovery, and requires that the information sought to be discovered be both relevant to the subject matter involved in the lawsuit and reasonably calculated to lead to admissible evidence. However, the Rule prohibits the discovery of such information if it is privileged and specifically extends such privilege to matters described in the following proviso: Provided, however, that subject to the provisions of the succeeding sentence, the rights herein granted shall not extend to the work product of an attorney or to communications passing between agents or representatives or the employees of either party to the suit, or communications between any party and his agents, representatives, or their employees, where made subsequent to the occurrence or transaction upon which the suit is based, and made in connection with the prosecution, investigation, or defense of such claim, or the circumstances out of which same has arisen, and shall not require the production of written statements of witnesses or disclosure of the mental impressions and opinions of experts used solely for consultation and who will not be witnesses in the case or information obtained in the course of an investigation of a claim or defense by a person employed to make such investigation. The Bank's lawsuit against Maryland American involves two theories of recovery: the first seeks payment on the bond, and the second seeks recovery for the insurance company's "bad faith" dealings. We will assume for purposes of this opinion that the information ordered to be disclosed is relevant. See Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959). The question before us is whether a privilege from discovery is applicable in this situation. Paragraphs 1 and 2 of the Request for Production seek materials relating to the filing and investigation of the insurance claim and materials relating to the insurance company's decision to either pay or not pay the claim. Paragraph 4 also appears to request information relating to this claim. As between Maryland American, its agents, representatives and employees, these materials are clearly within the proviso of Rule 186a with respect to the Bank's contract cause of action on the bond. Allen v. Humphreys, 559 S.W.2d 798 (Tex.1977); Ex parte Hanlon, 406 S.W.2d 204 (Tex.1966). Bank does not dispute this fact; rather, it contends that the privilege does not apply with respect to its bad faith allegations because the communications sought are the "operative facts" which form the basis of those causes of action. Apparently, the Bank contends that the claim of privilege relating to the contract cause of action is thereby vitiated. We do not agree. In order to recover under its contract cause of action, the Bank must prove its president was dishonest and that such dishonesty caused losses within the terms of the bond. Maryland American is entitled to defend itself by requiring the Bank to prove its cause of action and assert whatever defenses it may have. The protection of a party's right to defend a suit brought against him is the essence of the proviso in Rule 186a, and the privilege exists so long as that right exists. Regardless of the other *458 reasons which might justify the use of this information, it would be impossible to limit the prejudicial effect of disclosure on Maryland American's right to defend the contract cause of action. Moreover, if a plaintiff attempting to prove the validity of a claim against an insurer could obtain the insurer's investigative files merely by alleging the insurer acted in bad faith, all insurance claims would contain such allegations. We hold that Maryland American is entitled to assert the privilege so long as its liability on the bond remains undetermined.[2] The principles against disclosure of information concerning a pending cause of action apply with equal force to the attorney-client privilege and the rules concerning an attorney's work product. However, just as the attorney-client privilege continues after the relationship terminates, it may continue after the controversy which created the need for the communication is resolved. See West v. Solito, 563 S.W.2d 240 (Tex.1978). The purpose of this privilege is to promote the unrestrained communications between than attorney and client in matters where the attorney's dvice and counsel were sought by ensuring that these communications will not be subject to subsequent disclosure. Thus, the attorney-client privilege has been held to apply in these circumstances even after the insurer's contract liability is established. E.g., LaRotunda v. Royal Globe Insurance Co., 87 Ill. App. 3d 446, 42 Ill. Dec. 219, 228, 408 N.E.2d 928, 937 (1980). The Bank contends the attorney-client privilege should not apply with respect to the bad faith claims because the communications were made in furtherance of a fraud. It cites United Services Automobile Ass'n v. Werley, 526 P.2d 28 (Alaska 1974), wherein that court ruled that communications between an attorney and client could be discovered where the plaintiff made a prima facie showing, as opposed to a mere allegation, that a fraud had been committed in connection with the attorney-client relationship. That case involved a similar tort cause of action against an insurer for its failure to pay a claim. However, in that case the insurer's liability on the underlying claim was established prior to entry of the discovery order. We therefore do not reach the issue decided in the Werley case. The Bank contends that, even if a claim of privilege is applicable, the trial court's order was proper because Maryland American failed to present any evidence which would support the privilege. Maryland American has already produced those documents to which no privilege is asserted, and has offered to tender the remaining documents to the court for its inspection in camera. It is apparent from the trial court's order and its previous letter to counsel[3] that the court was of the erroneous opinion no privilege would apply, and on that basis the court declined to make any factual determination concerning which documents, if any, fell within a privilege. We are confident that Judge Blackmon will now employ appropriate procedures to protect these privileges consistent with our prior opinions. See, e.g., West v. Solito, 563 S.W.2d 240 (Tex.1978). We anticipate Judge Blackmon will set aside his orders of March 4 and 5, 1982, requiring Maryland American to produce its files and requiring its attorney to appear for a deposition. Should he fail to do so, the Clerk of the Supreme Court will be instructed to issue the writ of mandamus. NOTES [1] All references are to the Texas Rules of Civil Procedure unless otherwise indicated. [2] The Bank obtained a summary judgment against Maryland American in 1974 on part of its bond claim, but this judgment was reversed by the court or appeals and the cause was remanded for trial. Maryland American General Ins. Co. v. First State Bank of Bishop, 515 S.W.2d 57 (Tex.Civ.App. Corpus Christi 1974, writ ref'd n.r.e.). [3] In a letter to counsel for both parties, dated February 18, 1982, the trial court stated that the Bank was entitled to full discovery and that "the claim of privilege will not be allowed by the Court .... The Court does not desire to inspect the insurer's file in camera."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518535/	639 S.W.2d 311 (1982) Charles CARPENTER, Appellant, v. The STATE of Texas, Appellee. No. 63207. Court of Criminal Appeals of Texas, Panel No. 2. September 15, 1982. Rehearing Denied October 13, 1982. Ben G. Levy, Houston, for appellant. John B. Holmes, Jr., Dist. Atty., Calvin A. Hartmann and Hays Jenkins, Jr., Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State. Before ONION, P. J., and CLINTON and TEAGUE, JJ. OPINION CLINTON, Judge. Appeal is taken from a conviction for rape obtained in a trial before the court; the punishment assessed is five years confinement. The sufficiency of the evidence is challenged. Viewed in a light most favorable to the trial court's finding of guilt, the evidence establishes the seventeen year old complainant who we will call June called appellant, her former employer, at approximately 9:15 p.m. on the night of January 15, 1979, and asked him to give her a ride to her sister's house. Appellant picked her up in his van and drove the distance to the neighborhood where complainant's sister lived, but instead of driving to the intended destination, he drove around and ultimately pulled off the road near a park. According to June, she had terminated her employment with appellant some four 312 months before because he frequently became amorous with her,[1] urging her to allow him to help her "become a woman," she having admitted to him she had more affinity for other females than men.[2] But she insisted she considered appellant to be a friend and, on the night of the offense, called him because she had no money for public transportation and none of her relatives had a car. With the history of their relationship in mind, June attempted to exit the van once appellant stopped, but he locked it and started pulling off her pants. Though somewhat convoluted, her testimony was that she began screaming and kicking, but on realizing appellant's intent to have intercourse with her, she told him she loved him and suggested she might masturbate him to orgasm as she had once seen him do to himself. Failing through this maneuver to satisfy and thereby dissuade him, June started fighting him again. He wrestled her into the back of the van where she tried to kick out a window. Appellant finally jerked her pants down, breaking the zipper. At one point he placed his hand over her mouth, saying he could make her faint or knock her out. According to June he forced her to take his penis in her mouth. Ultimately appellant lay on her and penetrated her vagina with his penis, during which time, June testified, she was in a "state of shock" and no longer resisted. Appellant then drove to a cafe. When he went into the restroom, June ran to her sister's house and the police were summoned. There was evidence that June sustained scratches and bruises on her shoulders and face. In addition to the condition of her pants, her panties were torn, the crotch soaked with blood. June testified she had never before had sexual intercourse. In his own behalf, appellant testified he had had intercourse with complainant on prior occasions after the time she had quit working for him. Appellant's description of their interaction before that time was as follows: "She had mentioned to me about her past relationships with girls sexually, and I assumed, just like any other man would, that any time a woman approaches you about sex, that she is playing up to you, so I suggested that she would discontinue seeing girls and let me help her pull out of her desire for women by having a relationship with me. At that time she, you know, thought about it, and then we started having a relationship, the type of relationship where she would more or less get me hot. I would get hot, and we would stop at that point..." Appellant claimed that on the night of the offense, while riding around, June had her hand in his pants and his was in hers; that her effort to masturbate him was unfruitful, and he "was pretty hot;" that her nose started bleeding from the heat in the van; that they stopped, got in the back of the van and "she had oral sex, and after that didn't work, I put my penis between her legs and she got on top of me and started real roughly putting my penis up against her vagina, moving it around like, and it slipped in for about two minutes at the most and I had reached a climax and we left." On cross-examination appellant conceded only that the complainant did at all times want to go only to her sister's house. On appeal appellant contends the combined weight of complainant's admissions that she told him she loved him, that she had previously told a sister he was her "boyfriend," that she had previously engaged in petting and kissing with him, that she had called him for transportation, that she had voluntarily masturbated him on the night of the offense, and that she simply "lay back" without resisting during the act of intercourse illustrate the intercourse was with her consent, there being no evidence of "earnest resistance as might be 313 expected under the circumstances" which would "comport with human experience." The final argument against the sufficiency of the evidence made in appellant's brief reads: "The willing, or perhaps sometimes reluctant, participation of the prosecutrix in the sexual intercourse made the basis of the State's prosecution, is not sufficient to sustain the State's case. No matter how reluctant or passive the conduct of the prosecutrix, if she indicates by her conduct or words that she consents to the sexual intercourse, then the offense of the male is seduction, not rape. The distinction is sometimes subtle beyond comprehension, and a misjudgment may result in catastrophic consequences. It may be comforting to recall the plaintive cry of that eminent psychiatrist, Dr. Sigmund Freud: `Despite my 30 years of research into the feminine soul, I have not yet been able to answer ... the great question that has never been answered: what does a woman want?'" In the instant case, it is apparent that the woman involved wanted to be taken to her sister's house, as appellant conceded during his testimony. It is further apparent that through the enactments of V.T.C.A. Penal Code, §§ 21.02[3] and 21.13,[4] the Legislature recognized that women want, and are entitled to, full control over their own persons at any given time, notwithstanding past conduct, and to be accordingly protected against assumptions such as that reported by appellant in his testimony, "that anytime a woman approaches [a man] about sex, that she is playing up to [him]." While it might well be that under past denunciations of rape, the circumstances established here would present a difficult task for the prosecution,[5] under the 1974 Penal Code, in which the Legislature provided different proscriptions and punishment ranges for rape and the more serious aggravated form of the offense it is clear that the instant case establishes a classic example of the unaggravated form of rape which § 21.02, supra, contemplates and serves to notify all is prohibited. Indeed, it is against catastrophic misjudgments such as that made by appellant that the statute seeks to protect females. See post at 314. In sum, we cannot agree with appellant that the combined weight of "admissions" by June he recounts, indicates her consent to his penetration of her female sex organ by his male sex organ. Moreover, we think it clear appellant's awareness that his conduct and not her consent would accomplish his objective,[6] is reflected by his placing his hand over June's mouth, warning her he could make her faint or knock her out. We hold the evidence presented is ample to support the trial judge's findings that appellant had sexual intercourse with June without her consent by his use of force and threats as alleged in the indictment. This ground of error is overruled. *314 By his first and second grounds of error, appellant contends § 21.02(b)(1) and (2), supra, is unconstitutional on its face as a denial of Equal Protection in that it "condemns conduct by a male but would not condemn such conduct if committed by a female." Appellant's contention is bottomed upon the Fourteenth Amendment to the Constitution of the United States. His argument concludes that the statute is not "gender neutral." That the statute is not "gender neutral" is clear. However, as we understand it, the Federal Constitution does not require this. Recently, in Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 468-469, 101 S. Ct. 1200, 1204-1205, 67 L. Ed. 2d 437 (1981), the Supreme Court of the United States had this to say: "In Reed v. Reed, [404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225] ... the Court stated that a gender-based classification will be upheld if it bears a `fair and substantial relationship' to legitimate state ends, while in Craig v. Boren, the Court restated the test to require the classification to bear a `substantial relationship' to `important governmental objectives.' Underlying these decisions is the principle that a legislature may not `make overbroad generalizations based on sex which are entirely unrelated to any differences between men and women or which demean the ability or social statutes of the affected class.' But because the Equal Protection Clause does not `demand that a statute necessarily apply equally to all persons' or require things which are different in fact... to be treated in law as though they were the same, this Court has consistently upheld statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances." [citations omitted] Thus, the issue is whether the concededly gender based classification established by § 21.02, supra, bears a substantial relationship to ends which are legitimate concerns of State government. In Finley v. State, 527 S.W.2d 553 (Tex. Cr.App.1975), this Court confronted a similar contention to that made here, but which was based on the 1972 Texas Equal Rights Amendment. See Tex.Const.Art. I § 3a. We have carefully reviewed the Court's reasoning and rejection of the contention advanced in Finley, supra, and find it worthy of reaffirmation. For the reasons there expressed, we find appellant's first and second grounds of error to be without merit. They are accordingly overruled. The judgment of conviction is affirmed. TEAGUE, J., concurs in the result. NOTES [1] June also admitted she had kissed and "petted" with appellant on occasion. [2] On cross-examination June admitted she had once told her sister appellant was her "boyfriend" in order to evade an impression she did not like men. [3] Proscribing unaggravated rape: (a) A person commits an offense if he has sexual intercourse with a female not his wife without the female's consent. (b) The intercourse is without the female's consent under one or more of the following circumstances: (1) he compels her to submit or participate by force that overcomes such earnest resistance as might reasonably be expected under the circumstances; (2) he compels her to submit or participate by any threat, communicated by actions, words, or deeds, that would prevent resistance by a woman of ordinary resolution, under the same or similar circumstances, because of a reasonable fear of harm; ..." [4] Prohibiting evidence of the victim's prior sexual conduct unless "and only to the extent that, the judge finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value." [5] Difficult, but not necessarily impossible. See Miller v. State, 86 S.W.2d 460 (Tex.Cr.App. 1935). See also Killingsworth v. State, 226 S.W.2d 456 (Tex.Cr.App.1950). [6] See §§ 6.03(a) and (b); and Rubio v. State, 607 S.W.2d 498 (Tex.Cr.App.1980).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518610/	639 S.W.2d 953 (1982) Ex parte James ROBINSON. No. 69051. Court of Criminal Appeals of Texas, En Banc. October 20, 1982. 954 Robert Huttash, State's Atty., Austin, for the State. Before the court en banc. OPINION McCORMICK, Judge. This is an application for a post conviction writ of habeas corpus. The record shows applicant was convicted on February 13, 1980, for possession of cocaine. He was assessed a term of eighteen years' confinement by the jury. Applicant gave notice of appeal. On August 26, 1980, notice of appeal was withdrawn. Applicant first alleges that he was denied effective assistance of counsel at trial. Applicant presents a laundry list of actions he claims his attorneys failed to take. They include requesting a preliminary hearing; challenging the composition of the jury roll; taking affidavits from both State and defense witnesses so as to conduct better examination of witnesses; failing to file a motion to quash the indictment, a motion for discovery, a motion for continuance, and a motion to suppress evidence because of applicant's illegal arrest; and finally, failing to make proper objections. In reviewing the record before us, we would note that applicant has furnished us with only the statement of facts from the punishment hearing and the statement of facts from the hearing on the applicant's motion in arrest of judgment. Applicant was represented at the punishment hearing by trial counsel. However, he appeared at the later hearing with new counsel. Therefore, we can only review trial counsel's effectiveness based on the punishment hearing. The sufficiency of an attorney's assistance must be gauged by the totality of the representation of the accused. Passmore v. State, 617 S.W.2d 682 (Tex.Cr.App. 1981); Van Sickle v. State, 604 S.W.2d 93 (Tex.Cr.App.1980) (State's Motion for Rehearing); Ewing v. State, 549 S.W.2d 392 (Tex.Cr.App.1977). The constitutional right to counsel, whether counsel is appointed or retained, does not mean errorless counsel or whose competency or adequacy of his representation is to be judged by hindsight. Mercado v. State, 615 S.W.2d 225 (Tex.Cr. App.1981). The right to effective assistance of counsel means counsel reasonably likely to render reasonably effective assistance of counsel. Passmore v. State, supra; Cude v. State, 588 S.W.2d 895 (Tex.Cr.App. 1979). The record shows that at the punishment hearing the State merely reoffered all the evidence previously offered at the guilt-innocence phase of the trial. The State then rested. Defense counsel called applicant to the stand and conducted direct examination. Then, as the State cross-examined applicant, defense counsel effectively objected to the State's questioning, having several of his objections sustained. The defense rested and the State called R.C. Currin, an identification officer with the Harris County Sheriff's office. Through Deputy Currin, the State established applicant 955 as the same person convicted of an offense in Duval County, Florida. Defense counsel cross-examined Deputy Currin as to his qualifications and the quality of the fingerprints he was comparing. On redirect, the State offered State's Exhibit Number 4, a certified copy of the judgment and sentence from a conviction for possession of cocaine from Duval County, Florida. Defense counsel objected on the grounds that the case was then on appeal and thus it was not a final conviction. He did not offer any documentary proof of the pending appeal, and the court overruled the objection. Both sides then rested. Applicant alleges that failure of his counsel to obtain documentary evidence of the pending appeal of the Florida conviction alone is sufficient to show ineffective assistance of counsel. The case of Van Sickle v. State, supra, is directly in point. In that case, the State used an Oklahoma plea of guilty to a grand larceny charge for impeachment of the defendant. No objection was raised by Van Sickle's counsel. At the hearing on Van Sickle's motion for new trial, his attorney introduced an authenticated copy of the Oklahoma court order. It showed that Van Sickle had pled guilty to a charge of grand larceny, that the judgment was deferred pending the outcome of probation, that Van Sickle had completed his probation, and that the case was discharged without judgment of guilt, with the plea being expunged from the record. Thus, the Oklahoma charge did not amount to a final conviction under Article 38.29, V.A.C.C.P., and the prosecutor should not have used the charges to impeach Van Sickle. Van Sickle also argued his trial counsel was ineffective. This Court wrote: "There is no set standard for deciding whether the facts of this particular case demonstrate ineffective assistance. In other facets of the trial, trial counsel adequately represented appellant. We find, based on the totality of circumstances, that the failure to timely obtain documentary evidence of the dismissal and expungement of the Oklahoma charge along with the consequent failure to properly object to the admission of these matters at trial are not alone sufficient to show ineffective assistance of counsel." 604 S.W.2d at 98. We would apply the same reasoning. Based on the totality of the representation contained in the record before us, we are not persuaded that trial counsel was ineffective. Next, applicant complains that the prosecutors acted in bad faith in using the Florida conviction for impeachment when they knew an appeal was pending in the case. Once again, Van Sickle is directly in point. "A prosecutor cannot inquire in good faith about a prior conviction if he knows that conviction is not final. Goad v. State, 464 S.W.2d 129 (Tex.Cr.App.1971); see also Cohron v. State, 413 S.W.2d 112 (Tex.Cr.App.1967). However, the prosecutor must have actual knowledge that the conviction is not final in order to support a finding of bad faith. See Smith v. State, 409 S.W.2d 409 (Tex.Cr. App.1966). Nor is the prosecutor obligated to inquire into whether the conviction is final. Id. In this case, defense counsel told the prosecutor that the conviction was invalid. Nevertheless, in the absence of documentary proof, the prosecutor was free to disbelieve these statements." Van Sickle v. State, 604 S.W.2d at 97, 98. In the case at bar, applicant failed to produce authenticated documentation that his Florida conviction was on appeal. Thus, the prosecutors never had actual knowledge that the conviction was not final. Applicant has failed to show the prosecution acted in bad faith. Next, applicant alleges the trial court abused his discretion in not admitting documentation of the pending appeal into evidence at the hearing on applicant's motion to arrest judgment. He contends such documentation should have been admitted pursuant to Article 3731a, Section 1, V.A. C.S. Initially, we hold that this is a matter which should have been raised on direct appeal. Since applicant dismissed his appeal, *956 he waived error, if any, in this area. In addition, we hold that such evidence of the pending appeal was available to applicant and his counsel at the time of trial. They were not diligent in securing documentary proof. Thus, this cannot be termed newly discovered evidence. Applicant was not entitled to a new trial, and the trial judge did not abuse his discretion. Finally, applicant alleges the indictment is fatally defective because it does not state on its face that the property was taken from the possession of another party. Applicant cites as authority Clements v. State, 375 S.W.2d 304 (Tex.Cr.App.1964). Clements is totally inapplicable in that it concerns a conviction for felony theft. Applicant was indicted for possession of a controlled substance under Article 4476-15, Section 4.04(a), V.A.C.S. (1976). The indictment in pertinent part reads as follows: "... on or about September 24, 1979, did then and there unlawfully intentionally and knowingly possess a controlled substance, namely, cocaine." The indictment properly sets out the elements of the offense. The indictment is not fatally defective. See Ex parte Perez, 618 S.W.2d 770 (Tex.Cr.App.1981). Having reviewed applicant's allegations and having found no error, the relief is denied. ROBERTS and TEAGUE, JJ., concur. CLINTON, J., dissents.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518524/	639 S.W.2d 149 (1982) STATE of Missouri, Plaintiff-Respondent, v. John F. DEES, Defendant-Appellant. No. 12432. Missouri Court of Appeals, Southern District, Division Three. July 23, 1982. Motion for Rehearing Overruled and to Transfer Denied August 16, 1982. Application to Transfer Denied October 18, 1982. 151 John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent. Frederick H. Mayer, Thomas B. Weaver, Armstrong, Teasdale, Kramer & Vaughan, St. Louis, for defendant-appellant. Motion for Rehearing Overruled and to Transfer to Supreme Court Denied August 16, 1982. PER CURIAM. A jury found defendant John Dees guilty of burglary (§ 569.160)[1] and rape (§ 566.030.1), and he was sentenced to 35 years' imprisonment for the rape and 10 years for the burglary, the sentences to run concurrently. Defendant appeals. Defendant's first point is that the trial court erred in denying his motion for judgment of acquittal at the close of all the evidence for the reason that the evidence was insufficient to support the convictions. In ruling that contention this court must view the evidence in the light most favorable to the state, accept all substantial evidence and all legitimate inferences fairly deducible therefrom tending to support the verdict, and reject contrary and contradictory evidence. State v. Petrechko, 486 S.W.2d 217 (Mo.1972). The defendant offered the testimony of himself and other witnesses and thus the submissibility of the case will be determined upon all of the evidence. State v. Sykes, 372 S.W.2d 24, 25[2] (Mo.1963). In a circumstantial evidence case, the state is required to prove facts and circumstances consistent with each other and with the guilt of the defendant and inconsistent with any reasonable theory of his innocence, State v. Keller, 471 S.W.2d 196, 197[1] (Mo. 1971), but the circumstances need not demonstrate an absolute impossibility of innocence. State v. Phillips, 452 S.W.2d 187, 189[2] (Mo.1970). A defendant is not entitled to a judgment of acquittal because of discrepancies or conflicts in the testimony of the state's witnesses. State v. Cox, 478 S.W.2d 339, 341[3] (Mo.1972). The fact that the testimony of a witness may to some extent be contradictory does not bar it from being substantial evidence. Inconsistencies in testimony are questions for jury resolution. State v. Hodges, 537 S.W.2d 886, 887 (Mo.App.1976). Defendant does not challenge the adequacy of the evidence to show that the victim was raped on the occasion in question and that her apartment was burglarized. The defect, so defendant argues, is that the evidence is insufficient to identify defendant as the rapist. In the early morning hours of Wednesday, November 26, 1980, the victim, Kay Ogborn, a 34-year-old divorcee, was asleep in the bedroom of her apartment located at 415 Sheridan Drive, Apartment G, Cape Girardeau, Missouri. Occupying the same bed was her 12-year-old son Derek. At 3:20 a. m. Mrs. Ogborn awoke and saw a man, holding a flashlight, standing over her. Neither Mrs. Ogborn nor Derek, who was awake but "played possum," was able to see the man's face but they did observe his approximate height and weight, and Derek noted the fact that he had a moustache and beard. The man had a dark "sock cap" pulled down close to his eyebrows. The intruder put his hand over Mrs. Ogborn's mouth and ordered her not to scream or struggle. The man escorted Mrs. Ogborn downstairs to her small bathroom where the rape occurred. 152 The rapist was in the Ogborn apartment approximately 30 minutes. Immediately after his departure the police were notified and they inspected the apartment and the general area. Mrs. Ogborn was taken to a hospital where she was examined by a physician. The building located at 415 Sheridan contains a row of ten apartments, Apartment A being located at the north end of the building and Apartment J at the south end. The adjacent apartment building, 421 Sheridan Drive, also has ten apartments, similarly designated A through J, with Apartment A being located at the north end of that building. The two buildings are separated by a drive. 415 Sheridan is north of 421 Sheridan. The rapist gained forcible entry to the Ogborn apartment through a door leading to the patio on the west side of the building. All of the apartments in each of the two buildings had a west patio. The rapist left tracks of mud and pieces of mud in the Ogborn apartment, and especially in the bathroom where the rape was committed. On the night of the rape Apartment J, located at the south end of 421 Sheridan Drive and rented by Kathryn Dickson, was also burglarized. While officers were investigating the area west of the two buildings, Miss Dickson notified them that her apartment had been entered and mud tracks were "all over the place." The defendant was arrested on December 12, 1980, at his apartment which was located a mile or a mile and a half from that of the victim. Found in his apartment was a pair of Trax brand tennis shoes, basically blue in color, with red and light brown trim, which he admittedly owned. Identification of the defendant as the rapist was based on several factors, including the following: (1) Defendant's height, weight, beard and moustache closely correspond with the descriptions given by Mrs. Ogborn and Derek; (2) through laboratory analysis of seminal stains on the victim's panties it was determined that the rapist had Type A blood and that he was a "secreter" of that blood type in his bodily fluids. Forty percent of the population have Type A blood and, of those, 85 percent are secreters. Defendant is a secreter with Type A blood; the victim is a non-secreter with Type O blood; (3) a dark blue "sock cap" was discovered in defendant's automobile at the time of his arrest and it was characterized by the victim as being "like the sock cap" which the rapist wore; (4) evidence concerning a shoe print and pieces of mud, to be discussed later. The defendant testified that he spent the night of the rape with Regina Schiwitz in the latter's apartment located at 124 South Lorimer, Cape Girardeau. He said he arrived there at approximately 10:30 p. m. on Tuesday and remained there until 8 a. m. Wednesday. Miss Schiwitz testified to the same effect. In rebuttal of the defendant's alibi evidence, state's witness William Wilson, a police lieutenant, testified that at 2:30 or 3:00 p. m. on Wednesday, November 26, several hours after the rape had been committed, the defendant came to the Cape Girardeau police station and wanted to sign a complaint against defendant's brother Paul Dees. According to Wilson, "[defendant] said that his brother had got so wild that morning about 2:15 that he had to leave his apartment." State's witness Robert LeFebvre testified that at 3:00 p. m. on the same Wednesday the defendant came to his office at 1032 Broadway, Cape Girardeau. Defendant told the witness that he was concerned because his brother was behaving irrationally and that he, the brother, needed to be returned to the hospital. Defendant stated that his brother threatened defendant with his life when he attempted to get the brother to leave his apartment earlier that day "in the early morning hours." During this conversation LeFebvre observed that the defendant was wearing blue "tennis shoes" or what appeared to be "a running type of shoe." He identified state's Exhibit 14, the shoes found in defendant's apartment, as being similar to those he was wearing. The witness said the shoes looked "battered or weathered, wet, somewhat dirty." 153 The testimony of Wilson and LeFebvre was to the effect that defendant told them that during the early morning hours of Wednesday, November 26, he, the defendant, was at his apartment which was located at 216 Williams, Cape Girardeau, and that he engaged in an argument with his brother Paul Dees. This directly contradicted the trial testimony of defendant and Regina Schiwitz as to defendant's whereabouts at the time of the rape. Paul Dees is substantially larger than the defendant and the description of the rapist does not fit Paul Dees. Police investigators, examining the vicinity of the rape within hours after it happened, obtained mud samples from Kay Ogborn's apartment, including pieces of mud from the bathroom. A fresh piece of mud was found at the edge of the patio of Apartment C of 415 Sheridan, approximately 50 feet from the door through which the rapist gained entry to Kay Ogborn's Apartment G. Impressed in this piece of mud was the word "TRAX." A shoe print was found in the mud near the northwest corner of 421 Sheridan, just west of Apartment A in that building, and approximately 134 feet from the victim's apartment. A plaster cast impression of this shoe print was made and photographs were taken of it. The photograph of the shoe print, the plaster cast impression, the various pieces of mud, mud samples from Kathryn Dickson's apartment, and defendant's shoes were turned over to Robert Briner, Director of Southeast Missouri Regional Crime Laboratory, for analysis. Dr. Briner, an expert witness for the state, testified that he examined the various items using a technique called "comparison microscopy," which involves the examination of physical items under a microscope and "looking for details, both of individual and class characteristics." Individual characteristics, said the witness, are those which appear on the item and will distinguish that item from similar items within a class. Class characteristics are general characteristics which place an item only within a class but do not give it individual identity. Dr. Briner stated that there were five points of "individual comparison" between the photograph of the shoe print behind Apartment A and the right shoe of the tennis shoes taken from defendant's apartment. With regard to the piece of mud with the word "TRAX," Dr. Briner stated that there were eight points of "individual comparison" when it was placed alongside defendant's right shoe. In Dr. Briner's opinion the shoe print behind Apartment A and the impression in the piece of mud were both made by defendant's right shoe.[2] The most incriminating evidence from Dr. Briner dealt with Exhibit 7 and Exhibit 22. Exhibit 7 was a "jigsaw" piece of mud found in Miss Ogborn's bathroom shortly after the departure of the rapist. Exhibit 22 is a color photograph of the sole of defendant's right tennis shoe "with the piece of mud [Exhibit 7] laid in there." Both Exhibit 7 and the sole of the right shoe contain green paint. The shoe sole contains "suction cups." Referring to Exhibit 7 and Exhibit 22, Dr. Briner told the jury, "This is a color photograph, as I indicated to you, of this particular portion of the shoe with the piece of mud in this exhibit laid in there; it, it not only fits, but, if you take it end-sideways, end-on, and look end-on, and, and do some, again some other microscopy work, which I could not photograph successfully to, to demonstrate very well, but, the, the lines, there are lines around these particular suction cups and those lines are reproduced in that particular piece of mud, andQ. Is that on the side of the piece of mud? A. Yes, it's on the side of the piece of mud, and, I think when they look at the mud they'll be able to see those lines." (Emphasis added.) Dr. Briner then took the piece of mud, Exhibit 7, out of a jar and placed it on the sole of defendant's shoe, as depicted in Exhibit 22. Dr. Briner testified "that that 154 shoe [defendant's right shoe] produced those, the marks we have demonstrated to the jury." Dr. Briner also testified that the green paint on Exhibit 7 and the green paint on defendant's right shoe "were of the same elemental composition" based on his examination of them by electron microscope. Defendant is a sign painter. The excellent brief of defendant challenges Dr. Briner's testimony and labels it "at best inconclusive, speculative and misleading." In support of that assertion able counsel for defendant make their own extensive analysis of the plaster cast of the shoe print, and photographs of the mud pieces and the shoe print. For example counsel argue that there is a one-inch discrepancy between defendant's right shoe and the plaster cast of the shoe print. Dr. Briner testified that the plaster cast did not figure significantly in his findings. This court has examined the cast and the shoe and is not convinced that the discrepancy exists. This court has examined the numerous exhibits and the trial testimony in light of the lengthy and painstaking attack made upon Dr. Briner's testimony by defendant's brief. The factors which defendant's counsel emphasize may have been proper topics for cross-examination (and possible explanation by the witness) or for jury argument, but they do not strip Dr. Briner's testimony of its substantiality. The foregoing evidence was sufficient for the jury to find that the defendant was the man who raped Kay Ogborn. Defendant's first point has no merit. Defendant's second point is that the trial court erred in denying defendant's motion to suppress state's Exhibit 14, defendant's shoes, and in admitting the exhibit into evidence over defendant's objection, for the reason that the shoes were seized from defendant's apartment in violation of defendant's rights under the Fourth Amendment to the U. S. Constitution and Art. I, Section 15 of the Missouri Constitution for the reason that "the initial search of defendant's apartment was unreasonable in that it was conducted by a police officer who had no right to be in the apartment, without a search warrant and in the absence of any exigent circumstances necessitating such a search." This court's review of the trial court's ruling on the motion to suppress "is limited to a determination of whether the evidence was sufficient to sustain its finding." State v. Baskerville, 616 S.W.2d 839, 843[2] (Mo.1981). At approximately 10:00 p. m. on December 12, 1980, Officer William McHughs, of the Cape Girardeau police department, and three other officers, all armed and in plain clothes, went to defendant's apartment. The officers had a warrant for the arrest of defendant. The warrant had been issued in connection with the rape of another victim.[3] The officers entered the hallway of the apartment house in which defendant's apartment was located and knocked on defendant's door. Defendant opened the door and stepped into the hallway, closing the door behind him. Defendant was placed under arrest. Defendant was barefooted and asked the officers if he could get his boots. One of the officers said defendant "could get his boots." Defendant knocked on the door of his apartment and it was opened by his girl friend, Tammy Creg. Defendant told Officer McHughs that "it was all right to go in and get his boots." McHughs entered the apartment, obtained the boots, and handed them to defendant who was still standing in the hallway near the door which remained open. It was the testimony of Tammy Creg that while defendant was standing outside the open door defendant said, "You are going to have to find a way home or a ride or you are going to have to walk." Tammy asked defendant if she could use the telephone. Tammy asked Officer McHughs "if they could stay with me, wait with me while my 155 roommate came to pick me up or until I had a way home." Pursuant to that request Officer McHughs re-entered the apartment. At no time did defendant object to McHughs' re-entry. Defendant's apartment door opened into the living room and it was in that room that Officer McHughs stayed with Tammy Creg for approximately 15 minutes until her roommate arrived. Officer McHughs did not enter any other room nor did he seize anything. While standing in the living room Officer McHughs observed in plain sight a tennis shoe on the floor of the bedroom and noticed that the tread pattern on the sole of that shoe resembled the shoe print found near the apartment of Kay Ogborn. After McHughs had re-entered the apartment defendant was handcuffed and taken to the police station. The foregoing record would justify a finding that the second entry of Officer McHughs into defendant's living room was made with the implied permission of defendant. Defendant had informed Tammy Creg that she was going to have to find a way home and Tammy, in defendant's presence, asked Officer McHughs to remain until her roommate came to pick her up. When McHughs re-entered the living room to comply with the girl's request, defendant made no objection. Defendant had requested Tammy Creg to make arrangements for getting a ride home and the second entry of McHughs at the request of Miss Creg was a part of those arrangements.[4] The police officer was not a trespasser in the living room and while he was there, with defendant's acquiescence and implied permission, he observed the tennis shoes in plain view and recognized that they were evidence material to the investigation of the Kay Ogborn case. It was an inadvertent discovery. Although McHughs testified at the suppression hearing that he did not have defendant's permission to go back into the apartment, the trial court was justified in finding that his testimony, read in context, referred to the lack of express, as distinguished from implied, permission to re-enter. An officer is lawfully present on the premises of defendant when he is there with the consent of defendant. Underhill, Criminal Evidence, Fifth Edition, Vol. II, § 417, note 54. See also United States v. Griffin, 530 F.2d 739, 743 (7th Cir. 1976); United States v. Leal, 460 F.2d 385, 389 (9th Cir. 1972); Alberti v. State, 495 S.W.2d 236, 237[1-3] (Tex.Cr.App.1973). The shoes were not found as a result of a search. "They were on the floor, not hidden or concealed in any way. They were in plain view of the officers and were observed by them as they rightfully entered the room.... The mere observation of what is in plain view does not constitute a search." State v. Collett, 542 S.W.2d 783, 786[5] (Mo. banc 1976). See also State v. Williams, 554 S.W.2d 524, 531[9] (Mo.App. 1977). In Collett the officers were lawfully present in the room because they were there for the purpose of executing the arrest warrant for defendant. In the instant case Officer McHughs was lawfully present in the room because he was there with defendant's implied consent. It is unnecessary to determine whether McHughs would have been justified, under the plain view doctrine,[5] in seizing the shoes 156 when he first saw them. He did not do so. After seeing the shoes Officer McHughs telephoned his supervisor and suggested that a search warrant be procured. Officer McHughs then returned to the police station where he talked with defendant and gave him the Miranda warnings. Defendant, who is a college graduate with a "BS in art and a minor in business," signed an acknowledgment that he had received the Miranda warnings which were contained in the acknowledgment. The document recited, "I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions and I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me." Thereafter McHughs informed defendant that he had the right to refuse to consent to the search of his apartment. McHughs asked defendant if he had any objection and defendant told McHughs "that he had nothing to hide, that we could look." Defendant signed a written "consent to search and seize," the premises covered by the consent being defendant's apartment and his automobile. That document recited that defendant had been informed of his right to refuse to consent to the search and that his permission "to search and seize" was given voluntarily and "without threats or promises of any kind being made to me." After obtaining the consent to search, McHughs and other officers named in the written consent returned to the apartment where several items, including the tennis shoes, were seized. Defendant accompanied McHughs to the apartment, was present during the search, and entertained the officers by playing a guitar while the search was conducted. The sock cap was seized after a search of defendant's car. 157 "In general, an entry and search without a warrant are deemed unreasonable under the Fourth Amendment to the Constitution of the United States unless the action falls within certain carefully delineated exceptions.... The burden is on the state to show an exception exists.... Among the exceptions are ... searches with consent." State v. Epperson, 571 S.W.2d 260, 263[1-3] (Mo. banc 1978). The fact that defendant was under arrest at the time he gave his consent to search is not "enough in itself" to establish that such consent was involuntary. United States v. Watson, 423 U.S. 411, 96 S. Ct. 820, 828, 46 L. Ed. 2d 598 (1976). The additional factors of incarceration and handcuffing do not necessarily make the consent involuntary. United States v. Cepulonis, 530 F.2d 238, 244 (1st Cir. 1976). See generally 9 A.L.R. 3d 858 (Validity of consent to search given by one in custody of officers). Here there was no evidence that the consent to search was extracted by coercion. The contents of the document signed by defendant and his subsequent conduct in connection with the search itself, together with the other facts previously recited, justified a finding by the trial court that the consent to search was voluntarily given. Defendant's second point has no merit. Defendant contends in his third point that the trial court erred in granting on the morning of trial the state's motion to endorse Kathryn Dickson as an additional witness. Her testimony is discussed under defendant's next point. More than five months before trial, defendant's counsel were provided with a report of the burglary at her apartment and were given an opportunity to talk to her the day of the trial. The trial court has broad discretion to permit late endorsements, and we do not reverse a conviction unless that endorsement created prejudice to the defendant. State v. Cameron, 604 S.W.2d 653, 658[13] (Mo. App.1980). Counsel for defendant had sought to suppress evidence of the burglary at her apartment and could have reasonably anticipated that she might be called to testify by the state. See State v. Strawther, 476 S.W.2d 576, 580[3-4] (Mo.1972). Defendant has not shown how he was prejudiced due to the late endorsement; therefore, this point is denied. Defendant's fourth point is that the trial court erred in receiving into evidence, over defendant's objection, testimony from Kathryn Dickson and physical evidence regarding a burglary of her apartment on the morning of November 26, 1980, for the reason that defendant was not on trial for the Dickson burglary and evidence of that crime had no relevance or materiality to the offenses for which defendant was being tried, the rape of Kay Ogborn and the burglary of her apartment. The Dickson apartment was located at the south end of 421 Sheridan. The Ogborn apartment was located in the middle of the adjacent building, 415 Sheridan. The two apartments were separated by twelve other apartments and a driveway. Over defendant's objection Kathryn Dickson was permitted to testify that her apartment was burglarized on the same night that Kay Ogborn was raped. Forcible entry had been gained to her apartment through a bathroom window. Miss Dickson's fiancé was present at the apartment when the burglary occurred. Neither he nor Miss Dickson saw the burglar. The next morning Miss Dickson found that $20 was missing from her purse. She testified that there were mud prints "all over the place." Mud chips collected from the Dickson apartment were, over defendant's objection, admitted into evidence. The evidence showed that they could have come from the same shoe that left the mud in the Ogborn apartment. "The general rule is that on a prosecution for the commission of a crime, evidence of other offenses is not admissible." State v. Hancock, 451 S.W.2d 6, 8[1] (Mo. 1970). Such evidence, however, is admissible if it has some legitimate tendency to establish directly the accused's guilt of the crime with which he is charged. State v. Hicks, 591 S.W.2d 184, 192[6] (Mo.App. 1979). Evidence of other crimes is admissible 158 to prove the specific crime charged when it tends to establish motive, intent, the absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish the other, or identity of the person charged with the crime on trial. State v. Wing, 455 S.W.2d 457, 464[10] (Mo.1970), cert. denied 400 U.S. 1009, 91 S. Ct. 566, 27 L. Ed. 2d 621 (1971). The state argues that evidence of the Dickson burglary was admissible to prove defendant's identity. We agree. There was no question that the crime of burglary and rape occurred here; the only question was whether defendant was the perpetrator. It is a reasonable inference under the circumstances that the same person broke into both the Dickson and Ogborn apartments. The time, the manner of entry, the mud and the theft of money were all similar. Two forced entries in such close proximity, both involving essentially the same manner of gaining entry and the fact that each apartment had similar muddy shoeprints would indicate that it is at least probable that the same person committed both. See State v. Williams, 602 S.W.2d 209, 212[4] (Mo.App.1980). However, whether or not it was established that the same person broke into both apartments, this was certainly a possibility, and as such, was a fact for the jury to consider. Without it, they would not be fully advised of the circumstances occurring in the immediate vicinity of the rape that night. When a fact is to be established by circumstantial evidence, all surrounding circumstances are properly considered by the jury if they have any bearing on the ultimate fact sought to be established. State v. Stout, 198 S.W.2d 364, 367[3] (Mo.App. 1946). See also State v. Cox, 527 S.W.2d 448, 454 (Mo.App.1975); 2 Wigmore, Evidence, § 411, p. 479 (Chadbourn rev. 1979). "In cases wholly or largely depending on circumstantial evidence, the trial court has a broad discretion in the admission of evidence, and greater latitude is allowed in the admission of evidence than otherwise. In such cases every circumstance affording the basis of a logical inference relative to the issue, or reasonably tending to shed any light on the issue, is admissible". 22A C.J.S. Criminal Law § 604, pp. 411-412 (1961). See also State v. Atkinson, 293 S.W.2d 941, 943[3] (Mo.1956). When evidence is circumstantial, the state is permitted to show facts which, when standing alone, may be without probative force, but when connected by evidence with other facts are admissible as material, even when they tend only remotely to establish the ultimate fact. 22A C.J.S. Criminal Law § 637, p. 499 (1961). Dr. Briner said that both the full imprint and the trax imprint were made by the defendant's tennis shoe. Defendant seriously questions his testimony. The break-in at the Dickson apartment is relevant as tending to show that the "full" shoe imprint was made by the same person who broke into the Ogborn apartment, leaving mud chips, and four apartments down left the "trax" imprint. Starting from the south going north, one first passed the Dickson apartment, then the place where the full imprint appeared. One hundred thirty-four feet further north was the Ogborn apartment. Approximately fifty feet north of it the trax imprint was found. If the Dickson break-in and the rape were committed by the same person, that break-in shows that he was on the south side of defendant's apartment where the full imprint of the foot was found. As authority on this point defendant primarily relies on State v. Mathis, 375 S.W.2d 196 (Mo.1964) and State v. Strickland, 530 S.W.2d 736 (Mo.App.1975). Neither are controlling here. In Mathis evidence of another burglary was not considered relevant because it did not show that defendant committed the crime charged. Here the overall picture and the path of the perpetrator could be important to the jury in determining if the mud samples found in the Ogborn apartment and the imprints found outside the apartments all came from the same shoe. In Strickland the evidence of another crime was "not connected" with the defendant. See 530 S.W.2d at 737. Here we 159 believe that the break-in was sufficiently connected to other relevant evidence for the jury to be advised of it. If the jury believed that the Dickson break-in and the burglary and rape at the Ogborn apartment were committed by the same person, that would not by itself tend to make them believe that defendant was that person. We believe that showing the known details of the Dickson burglary would not create any improper prejudice to defendant and that the value of the jury being fully advised of the facts would outweigh any prejudice that might arise from the fact that the perpetrator of the crimes defendant was charged with may have broken into another apartment on the night of those crimes. We hold that evidence of the burglary at the Dickson apartment was admissible to provide the jury with all the circumstances surrounding the crimes charged and specifically as to the circumstances which might be relevant to their consideration of the origin of the mud samples and shoe imprints in evidence. Point four is denied. Defendant's fifth point is that he was denied a fair trial because he did not have effective assistance of counsel. He points to several things that he says counsel should have done. Whether those would have been helpful, or whether counsel declined to do so as trial strategy, we cannot say on the record before us. Our review of the entire record convinces us that defendant's trial counsel vigorously and competently defended him. This point is denied. Defendant's sixth point is that the trial court erred in denying his request to strike for cause a venireman who was a drivers' license examiner employed by the Missouri Highway Patrol. It is within the sound discretion of the trial judge to determine when a challenge for cause should be sustained, and his decision should not be reversed unless there is a clear abuse of discretion. State v. Stewart, 596 S.W.2d 758, 760[8] (Mo.App.1980). Friendship or relationship with a police officer is not alone sufficient to disqualify a venireman. State v. Dodson, 551 S.W.2d 932, 934[4] (Mo.App.1977), cert. denied 434 U.S. 1071, 98 S. Ct. 1255, 55 L. Ed. 2d 774 (1978). The venireman indicated that he could fairly hear the evidence and we find no abuse of discretion here. This point is denied. Defendant's seventh point is that the trial court erred in failing to give MAI-CR2d 2.70. A similar point was denied in State v. Bellah, 603 S.W.2d 707, 710-711[6] (Mo.App.1980), and our discussion of it is applicable here. Point seven is denied. In defendant's eighth and ninth points he contends that the trial court erred in failing to declare a mistrial because of portions of the prosecuting attorney's closing argument. The drastic nature of a mistrial requires that it be granted only in extraordinary circumstances where the prejudicial effect cannot be removed in any other way, and such a determination rests largely within the discretion of the trial judge. State v. Reynolds, 608 S.W.2d 422, 427[5-6] (Mo.1980). We find no abuse of discretion in not granting a mistrial in either of the respects claimed here. Points eight and nine are denied. Defendant's tenth and final point is that the trial court erred in denying his motion requesting a reduction of the jury's assessment of 35 years imprisonment on the rape conviction. Defendant argues that this punishment is too severe for the crime, and necessarily has to result from bias, passion and prejudice. Under the circumstances shown here, we are not convinced that this term of imprisonment was based on bias, passion or prejudice. This point is denied. The judgment is affirmed. BILLINGS, P. J., and TITUS and PREWITT, JJ., concur. MAUS, C. J., concurs and files concurring opinion. FLANIGAN, J., dissents and files dissenting opinion. 160 MAUS, Chief Judge, concurring. I concur. However, I have a slightly different analysis than that expressed in the majority opinion concerning why the Dickson evidence was admissible. For that reason I file this concurring opinion. Ms. Dickson was a single woman living in the apartment complex with her young son. However, at the time of the incident in question, her fiance spent the night with her. When they arose the next morning, they discovered her apartment had been entered through the bathroom window. There were muddy footprints in the bedroom, kitchen, and, as she put it, "all over the place". These footprints included tracks on the stairs and into her upstairs bedroom. Her clothing, which had been on the floor by her bed, was found downstairs by the patio doors. $20 was missing from her purse which she had left downstairs. The state's evidence was to the effect that chips of mud, or footprints, in the Dickson apartment could have been made by the defendant's shoes, although they did not have sufficient individual characteristics to permit positive identification as having been made by those shoes. As noted in the majority opinion, there was a footprint between the apartment building in which Ms. Dickson lived and the apartment building in which Ms. Ogborn lived that was positively identified as having been made by the defendant. The rule in Missouri concerning the admission of evidence that involves another offense committed by a defendant is most frequently said to be the exclusionary rule set forth in State v. Hancock, supra; State v. Wing, supra, cited in the majority opinion. The affirmative statement of the rule is that such evidence is admissible if it tends "logically, naturally, and by reasonable inference to establish any fact material for the people, or to overcome any material matter sought to be proved by the defense". People v. Peete, 28 Cal. 2d 306, 169 P.2d 924, 929 (1946). Compare State v. Tallie, 380 S.W.2d 425 (Mo.1964); State v. Fisher, 302 S.W.2d 902 (Mo.1957); State v. Iaukea, 537 P.2d 724 (Haw.1975). The two rules are discussed in Iaukea in which the court observed that the use of the exceptions under the exclusionary rule is to determine the relevance of the evidence in question. That court observed that some courts have applied the exceptions "to come almost full circle back to the affirmative statement of the rule". Iaukea, supra, at 730. I do not believe it was error to admit the evidence in question under either statement of the rule. To be relevant it is not necessary that evidence be conclusive upon a given issue. There is a distinction between evidence being admissible and evidence being sufficient to support a verdict. Evidence is "relevant if it logically tends to prove a fact in issue or corroborates relevant evidence which bears on the principal issue". State v. Mercer, 618 S.W.2d 1, 9 (Mo. banc 1981). If there is doubt concerning relevance, that doubt is to be resolved in favor of admissibility. State v. Williams, 566 S.W.2d 841 (Mo.App.1978). A determination of relevance made by a trial court will be disturbed only if an abuse of discretion is shown. State v. Wood, 596 S.W.2d 394 (Mo. banc 1980). The principal issue in this case is the identification of the man who attacked Ms. Ogborn and took $10 from her purse. The defendant emphasized this issue by his alibi of having spent the entire evening and night with his girl friend. Any evidence, even though that evidence may be connected with another offense, which places the defendant in the immediate vicinity of the Ogborn apartment the night in question is relevant. It is relevant to overcome the tendered issue of alibi. It also "tends to establish ... the identity of the person charged with the commission of the crime on trial". State v. Wing, supra, 455 S.W.2d at 464. The defendant contends that he is not sufficiently identified with the footprint at the Dickson apartment for the evidence in question to be admissible. This is not the case. There was evidence to establish that this footprint could have been made by the shoe of the defendant. This makes evidence of that footprint admissible to establish 161 the presence of the defendant in the vicinity of the Ogborn apartment. This is true even though that evidence is not conclusive of his presence and would not alone support a verdict of guilty. Positive identification of that footprint was not required to make such evidence admissible. State v. Kelly, 111 Ariz. 181, 526 P.2d 720 (banc 1974); People v. Robbins, 21 Ill.App.3d 317, 315 N.E.2d 198 (1974). The fact the two entries were related by the closeness of time and distance and the intervening footprint more clearly makes the Dickson footprint relevant on the issue of identity. Given the proximity in time and place and the similarities of the crimes the evidence of the City robbery was admissible as evidence that the defendant and his companions had embarked upon a common scheme to rob school children at both sites and that the robberies in the County were committed by the same people identified in the City. State v. Adail, 555 S.W.2d 672, 675 (Mo.App.1977). Compare State v. Peterson, 543 S.W.2d 566 (Mo.App.1976); State v. Granberry, 530 S.W.2d 714 (Mo.App.1975). The fact there were other footprints in the area positively identified as having been made by the shoe of the defendant does not render the footprint in the Dickson apartment inadmissible. The admission of relevant evidence is not error because it is cumulative or corroborative of other evidence. "However, other evidence will not prohibit use of demonstrative evidence which has probative value in establishing conditions and corroboration of witnesses on the issues of the case." State v. Mucie, 448 S.W.2d 879, 887 (Mo.1970). The admissibility of the footprint in the Dickson apartment may be demonstrated by comparing the evidence of the footprints to visual identification. The footprint that could have been made by the defendant's shoe is the equivalent of a general physical description. The footprint identified by individual characteristics as having been made by the defendant's shoe is the equivalent of a definite identification. The testimony of a witness that on the night in question he saw a man whose general description fit the defendant enter the Dickson apartment would not be made inadmissible by the testimony of another witness that he saw the defendant at a point between the two apartment houses. In addition to contending that he was not sufficiently connected to the footprint in the Dickson apartment, the defendant contends the evidence in question should have been excluded because the prejudicial effect thereof outweighed its probative value. This argument will be considered even though the scope of the limitation of prejudice upon the admission of relevant evidence is not clearly defined. Compare State v. Holt, 592 S.W.2d 759 (Mo. banc 1980); State v. Williams, 602 S.W.2d 209 (Mo.App.1980). To support this contention he cites the argument made by the state which is quoted in the dissenting opinion. In view of the rule concerning a pattern of action in sex offenses hereafter cited, it is probable that argument was proper. In any event, the defendant is not entitled to rely upon that argument to establish prejudice. The defendant did not object to that argument. Further, that argument was invited by the defendant. The defendant in his closing argument asserted the improbability that he would take $10 at 3:00 a. m. when he had over $2,000 in the bank. The state legitimately responded to that argument. The defendant further argues he was prejudiced because he was not sufficiently identified with the Dickson offense. This argument has been answered in demonstrating that such evidence was relevant. However, even assuming that it was not, that would be no reason for reversal. "If the latter contention is correct, the testimony probably was not relevant, but a judgment is not to be reversed because of the admission of irrelevant and immaterial evidence which is not prejudicial to the defendant." State v. Parker, 476 S.W.2d 513, 515 (Mo.1972). The defendant then argues evidence of the Dickson entry did prejudice him by tending to cause the jury to believe that he 162 committed both offenses. In speaking of the Dickson footprint, that footprint did prejudice the defendant by tending to establish his identity as being in the vicinity. But, that is not the type of prejudice that is to be considered as militating against admittance of relevant evidence. That is the very purpose in admitting the evidence even though it involves another offense. The defendant's real argument seems to be that, aside from the footprints, the details of the offense at the Dickson apartment are so similar to the details of the offense at the Ogborn apartment as to cause the jury to believe he committed both offenses. This argument does not establish the trial court erred. First, the defendant objected to all evidence relative to the Dickson apartment. He did not specify any portion thereof. The trial court was not required to sift through that evidence to determine the inadmissible portions thereof. Second, the two offenses are remarkably similar. In each offense the apartment of a young single woman was entered; in each the offender made his way to the upstairs bedroom; in each the only thing taken was a small amount of money; and in each the offender wore the same type of tennis shoes which could make the same footprint. It could be found that the Dickson offense involved sexual overtones as that offender for some unexplained reason carried the young woman's clothes downstairs. The defendant's argument in this respect is self-defeating. A pattern in the commission of offenses, or a modus operandi, may cause evidence of the commission of one offense to be admissible as proof of the identity of the offender in another offense. Wharton's Criminal Evidence § 243. This is particularly true of offenses involving sexual activity. Annot., EvidenceSimilar Sexual Offenses, 77 A.L.R. 2d 841 (1961); State v. Williams, supra; Lingerfelt v. State, 147 Ga.App. 371, 249 S.E.2d 100 (1978). For the reasons stated, I believe the admission of the evidence concerning the Dickson apartment was not an abuse of discretion by the trial court. FLANIGAN, Judge, dissenting. I respectfully dissent. The principal opinion considers ten points raised by the defendant and holds that all ten are invalid. I concur fully in nine of those rulings. My dissent is confined to the ruling on defendant's fourth point. In my opinion that point is a valid one and the trial court committed reversible error in admitting, over defendant's objection, evidence concerning the burglary of Kathryn Dickson's apartment on November 26, 1980. The state argues that the evidence was admissible as tending to identify defendant as the rapist of Kay Ogborn. The principal opinion agrees with the state. I disagree. "When admitting evidence of other crimes, it is important that the trial court consider not only the rule of exclusion but also the matter of discretion. Some courts proceed on the assumption that the decision of admitting or not admitting such evidence turns solely upon the ascertainment and application of the rule, in other words, whether or not the evidence comes within a certain category which constitutes an exception to the rule of exclusion. This should not, however, be a matter of pigeonholing, but one of balancing, on the one hand the actual need for such evidence, and on the other the degree to which a jury may be prejudiced against the defendant by hearing such evidence. The matter should be one of careful discretion on the part of the trial court. This is especially true when the ultimate purpose of the State is to prove the identity of an accused." State v. Burr, 542 S.W.2d 527, 531[4] (Mo.App.1976). See also State v. Cheesebrew, 575 S.W.2d 218, 223[9] (Mo.App.1978); State v. Hamell, 561 S.W.2d 357, 360 (Mo.App.1977). The state's expert witness, Dr. Briner, testified that in his opinion defendant's right shoe produced the marks on the piece of mud found in Miss Ogborn's bathroom. Dr. Briner also testified that defendant's shoe produced the shoe print behind Apartment A near the northwest corner of 421 Sheridan and the print in the piece of mud found at the edge of the patio of Apartment 163 C of 415 Sheridan.[1] Dr. Briner's opinion was that "no other shoe of the same size and same brand could have caused those shoe prints." Significantly Dr. Briner was unable to provide specific identification with respect to the mud chips collected from the Dickson apartment. As the principal opinion points out, Dr. Briner's testimony would justify the inference merely that the mud chips "could have" come from the same shoe which left mud in the Ogborn apartment. In other words, the physical evidence in the Dickson apartment contained only "class characteristics,"[2] while the evidence inside the Ogborn bathroom and the two outdoor prints had "individual characteristics." The state's evidence showed that a specific shoe, that of the defendant, produced the markings in Miss Ogborn's bathroom and the two outdoor prints. That was strong evidence indeed on the issue of the identity of the rapist. On the contrary, the physical evidence collected from the Dickson apartment possessed only class characteristics which added nothing on the issue of identity. The state does not claim that the evidence was sufficient to show that defendant committed the burglary of the Dickson apartment. Evidence of the Dickson burglary contributed nothing to the state's burden of proof. In State v. Strickland, 530 S.W.2d 736 (Mo.App.1975), the residence of one Lee was located "next door" to the townhouse apartment of Murray. Defendant was charged with burglary of the Murray apartment on November 14, 1973. The state introduced evidence of pry marks found that day on the door of the Lee residence. Defendant was found in a nearby alley. Near him was found a tire iron which fitted snugly into the marks on Lee's door. Defendant was not linked by fingerprints to the tire tool nor was it ever seen in his possession. The court of appeals held that the trial court erred in receiving evidence of the attempted burglary of Lee's apartment because defendant was not connected with the incident at Lee's door. In State v. Mathis, 375 S.W.2d 196 (Mo. 1964), defendant was charged with the burglary of a store room located at 1210 Truman Road in Kansas City on August 29, 1962. The state, over defendant's objection, introduced evidence that after midnight on that date a policeman found defendant sitting in a car parked at 1401 Truman Road. The state's evidence showed that the building at 1401 Truman Road had been broken into, that it had recently been painted, and that at the time of his arrest defendant had paint on his hands similar to that on the building. The court rejected the state's argument that the break-in of the building at 1401 Truman Road was part of the "res gestae." It pointed out that commission of the burglary at 1201 Truman Road "was necessarily a completed transaction separate and apart from the commission of a second burglary or unlawful breaking two blocks distant." At p. 199[4] the court said: "The state contends that the evidence which admittedly tended to show that defendant broke into the office building at 1401 Truman Road was properly admitted over objection because it tended to establish intent, absence of mistake or accident, a common scheme or plan embracing the commission 164 of two or more crimes so related to each other that proof of one tended to establish the other, or the identity of the defendant. We cannot agree. The crimes were not related, and the fact that defendant may have broken into a building at 1401 Truman Road could not tend to show his intent to commit an unrelated burglary at some previous time two blocks away at 1210 Truman Road. Neither could it tend to show absence of mistake or accident in breaking into the building at 1210 Truman Road, or the identity of the one who did so." Under the foregoing authorities, evidence of the Dickson burglary was inadmissible. That the error was prejudicial is demonstrated by the fact that the prosecutor, in his final argument to the jury, said: "I'll call your attention to the apartment down the street, he got 20 bucks out of there too, but, when he dragged those muddy footprints up those stairs and saw that some young lady in Apartment J had a big man with her, then he went down a half a block away and got into Kay Ogborn's apartment and she did not have a man there. His intention was to rape." In my opinion defendant's fourth point is meritorious and the judgment should be reversed and the cause remanded for new trial. NOTES [1] All references to statutes are to RSMo 1978, V.A.M.S. [2] For cases dealing with evidence of this type, see 31 Am.Jur.2d Expert and Opinion Evidence § 124, p. 666; see also 35 A.L.R. 2d 856 (Foot Prints as Evidence). [3] The fact that the tennis shoes pertained to an offense other than the one for which defendant had been arrested is of no moment. State v. Preston, 583 S.W.2d 577, 580[3] (Mo.App. 1979). [4] Defendant's subsequent conduct, at the police station, in executing a written consent to search the apartment is consistent with his prior, though not expressly stated, state of mind that McHughs had his permission to re-enter the living room at the request of Miss Creg. [5] In Washington v. Chrisman, ___ U.S. ___, 102 S. Ct. 812, 70 L. Ed. 2d 778 (1982), the Court held that a police officer, consistent with the Fourth Amendment, may accompany an arrested person into his residence and seize contraband discovered there in plain view. The majority opinion said: "The `plain view' exception to the Fourth Amendment warrant requirement permits a law enforcement officer to seize what clearly is incriminating evidence or contraband when it is discovered in a place where the officer has a right to be. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Harris v. United States, 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968). Here, the officer had placed Overdahl under lawful arrest, and therefore was authorized to accompany him to his room for the purpose of obtaining identification. The officer had a right to remain literally at Overdahl's elbow at all times; nothing in the Fourth Amendment is to the contrary." In a dissenting opinion Mr. Justice White said, at p. 819: "Coolidge emphasized that the plain view doctrine applies only after a lawful search is in progress or the officer was otherwise legally present at the place of the seizure. The initial intrusion must be justified by a warrant, by an exception to the warrant requirement, or by other circumstances authorizing his presence. "If a police officer passing by an open door of a home sees incriminating evidence within the house, his observation may provide probable cause for the issuance of a search warrant. Yet the officer may not enter the home without a warrant unless an exception to the warrant requirement applies." On p. 820 Mr. Justice White quoted the following language from Harris v. United States, 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968): "It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence." Mr. Justice White said: "The broad wording [of the quotation from Harris ] has apparently created some confusion regarding the plain view doctrine. One commentor remarked: "`The hardest conceptual problem attending the plain view doctrine is to grasp that it is not a universal statement of the right of a policeman to seize after seeing something in open view; it is rather a limited statement of that right in one of its several instancesfollowing a valid intrusion.... The source of difficulty is that the harbinger case, Harris v. United States, spoke carelessly in universal terms: "It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure.... "`Seeing something in open view does not, of course, dispose ... of the problem of crossing [a] constitutionally protected threshold.' Moylan, `The Plain View Doctrine, Unexpected Child of the Great "Search Incident" Geography Battle,' 26 Mercer L.Rev. 1047, 1096 (1975). See also 1 W. LaFave, Search and Seizure § 22(a) (1978)." See also People v. Pakula, 89 Ill.App.3d 789, 44 Ill. Dec. 919, 924, 411 N.E.2d 1385, 1390 (1980), where the court said: "The doctrine of plain view is not an exception itself to the requirement that a search or seizure must be supported by a warrant issued by a judge upon a finding of probable cause. Plain view serves only to provide a means of satisfying the requirement of probable cause. Without the simultaneous existence of one of the true exceptions to the warrant requirement, plain view cannot substitute probable cause, rightly thought to exist by a police officer for the impartial decision of a neutral and detached magistrate capable of fairly determining whether probable cause truly exists." [1] These two prints are respectively referred to as "the full imprint" and "the TRAX imprint" in the principal opinion. [2] This reference to Dr. Briner's testimony is based on the most favorable view of the evidence from the standpoint of the state. State's Exhibit 10 consisted of "three small wedge-shaped pieces of mud" found in the Dickson apartment. Dr. Briner compared Exhibit 10 with defendant's shoe. This testimony ensued: "PROSECUTOR: Dr. Briner, after making your comparisons and analysis were you able to arrive at an opinion as to the origin of the pieces of mud? "DR. BRINER: If we refer, want to refer to each one of them separately, No. 10, the wedge-shaped pieces of mud, we were able to match in varying relatively unique class characteristics but not individual characteristics, to areas on the shoe, which the pieces of wedge fit into the shoe, as well as there are some, a couple, in places where there are protrusions on the side of the shoe which would then cause an indention in the piece of mud, and we felt, even though they, that was, was quite unusual, we did not, we were not able to ascribe class characteristics to it because we only had one point of comparison."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518539/	639 S.W.2d 142 (1982) CITY OF JACKSON, Missouri, Plaintiff-Respondent, v. HERITAGE SAVINGS AND LOAN ASSOCIATION and First Federal Savings and Loan Association, Defendants-Respondents, and Cape County Bank and Jackson Exchange Bank and Trust Company, Defendants-Appellants. Nos. 44337, 44287. Missouri Court of Appeals, Eastern District, Division Four. July 20, 1982. Motion for Rehearing and/or Transfer Denied September 17, 1982. Application to Transfer Denied October 18, 1982. 143 David G. Beeson, Buerkle, Lowes, Beeson & Ludwig, Jackson, J. Michael Payne, Limbaugh, Limbaugh, Russell & Syler, Cape Girardeau, for defendants-appellants. Kenneth L. Waldron, Waldron & Turnbow, Jackson, for plaintiff-respondent. Richard G. Steele, Cape Girardeau, for First Fed. Sav. & Loan Ass'n. SMITH, Presiding Judge. The City of Jackson filed a petition for declaratory judgment to seek resolution of certain questions involving the deposit of city monies. Joined as defendants were two banks (Jackson Exchange and Cape County) and two savings and loan associations (Heritage and First Federal). The City specifically asked the trial court (1) whether it could deposit funds in more than one institution at the same time, (2) whether it could deposit funds in savings and loan associations, and (3) whether its ordinance providing for deposit of funds in "banking institutions in the City of Jackson, Missouri, in such amounts so that the City funds in such banking institutions shall be of as nearly equal amounts as possible" was valid. The trial court gave an affirmative answer to the first two questions, a negative answer to the third question, and both banks appealed. Those appeals were consolidated. The financial institutions have been respectively joined in briefing before this court by the Missouri Bankers Association and Missouri Savings and Loan League as amici curiae. Before us, the parties and amici have devoted much of their efforts to an exposition of whether Sec. 369.194,[1] authorizing investment by political subdivisions or instrumentalities of the state in savings and loan associations, is constitutional in view of Mo.Const. Art. VI, § 23, precluding such subdivisions from owning stock in "any ... association." If such an issue must be resolved on this appeal, Mo.Const. Art. V, § 3, does not provide jurisdiction for us to make such a resolution. We do not find such resolution necessary because the trial court lacked jurisdiction to enter a judgment in the absence of a justiciable controversy. Sec. 527.020 provides, "Any person... whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder." See also, Rule 87.02(a). A municipal corporation is a "person" under the statute. Sec. 527.130, Rule 87.05. The statute further provides that the listing is not exclusive and the Rule provides that anyone may maintain a declaratory judgment action "in any instance in which it will terminate a controversy or remove an uncertainty." Sec. 527.050, Rule 87.02(d). We are admonished that the law is remedial and is to be liberally construed and administered. Sec. 527.120; Pollard v. Swenson, 411 S.W.2d 837 (Mo. App.1967) [3-10]. 144 However, despite the broad language of the statute and rule, courts are limited in the circumstances in which they may properly issue a judgment. For the court to have jurisdiction, even in a declaratory judgment case, it must have before it a "justiciable controversy." City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W.2d 411 (1942) [2-4]; Pollard v. Swenson, supra, [3-10]. The petition[2] must present a real, substantial, presently existing controversy admitting of specific relief as distinguished from an advisory decree upon a hypothetical situation. The question is not whether the petition shows that plaintiff is entitled to a declaration in accordance with the theory he states, but whether he is entitled to a declaration at all. Pollard v. Swenson, supra. Plaintiffs must show that they have a legally protectible interest at stake and that the question they present is appropriate and ripe for judicial decision. The facts on which the decision is demanded must have accrued so that the judgment declares the existing law on an existing state of facts. Higday v. Nickolaus, 469 S.W.2d 859 (Mo.App.1971) [1-3]. A mere difference of opinion or disagreement or argument on a legal question does not afford adequate ground for invoking the judicial power. Tietjens v. City of St. Louis, 359 Mo. 439, 222 S.W.2d 70 (banc 1949) [1-4]. "No justiciable controversy exists ... unless an actual controversy exists between persons whose interest are adverse in fact .... Actions are merely advisory when there is an insufficient interest in either plaintiff or defendant to justify judicial determination, i.e., where the judgment sought would not constitute a specific relief to one party or the other. Such actions are merely advisory when the judgment would not settle actual rights. If actual rights cannot be settled the decree would be a pronouncement of only academic interest." State ex rel. Chilcutt v. Thatch, 359 Mo. 122, 221 S.W.2d 172 (banc 1949) [5-7]. To qualify as "any person" under the statute, a party seeking a declaratory judgment must have a legally protectible interest at stake and the declaration sought must be of a question appropriate and ready for judicial resolution. "A legally protectible interest contemplates a pecuniary or personal interest directly in issue or jeopardy which is subject to some consequential relief, immediate or prospective." Absher v. Cooper, 495 S.W.2d 696 (Mo.App.1973) [1-4]. Having set forth these oft-recited principles we turn to the specifics of the case before us. Plaintiff's petition alleged that it is a city of the fourth class and set forth the nature and location of the defendants. It stated that each of the banks are depositories for plaintiff's funds. The banks desire to remain so to the exclusion of the savings and loan associations, although Heritage in fact has funds of plaintiff on deposit. Plaintiff's current ordinance provides that city funds "shall be deposited in all banking institutions in the City ... in such amounts so that the City funds in such banking institutions shall be of as nearly equal amounts as possible." The petition then sets forth the provisions of Secs. 95.355, 110.010, and 110.020, and alleges that 369.325(3) [sic] states that accounts of savings and loan associations are legal investments for funds of municipalities in Missouri. The petition then alleges that the City has "received numerous requests" from the savings and loan defendants for deposit of city funds and this has created a "perplexing problem of where a Fourth Class City in Missouri can or cannot deposit its funds." The petition then cites two opinions of the Attorney General which are alleged to be inconsistent, one of which would appear to preclude the city from depositing funds in more than one depository. It is alleged that there are no reported decisions on the subject. 145 Plaintiff's remaining allegations deal with intensification of questions and problems; media coverage; direct and indirect pressure being applied to city officials; the need for judicial clarification and construction; the concerns of city officials about having a checking account; their concern about the process of purchasing tax bills and city bonds; and the position of the savings and loan association officers that they could not purchase tax bills and might not be able to purchase bonds. The petition concluded by asserting that the competition between banks and savings and loan associations and the economic climate have intensified problems and pressures facing City officials presenting an actual controversy between plaintiff and all defendants, so that plaintiff needs a judicial determination to avoid future controversy and legal exposure for incorrect actions "that may result from inactment [sic] of an invalid ordinance relating to deposit of funds." The prayer asked the court to find and declare (1) whether Plaintiff is required to deposit its funds in one or more banking institutions, (2) "whether and under what circumstances may Plaintiff deposit funds in savings and loan associations ...," (3) whether plaintiff's Ordinance 1897 is valid and complies with Missouri law, and, if not, "the proper wording for same." There was nothing in the answers of the parties indicating an actual justiciable controversy. The defendants did allege a difference of opinion as to whether deposits could be made in a savings and loan association, and one bank made an unadorned allegation that Ordinance 1897 is "invalid." Notable by their absence are any allegations of any incipient litigation, demands, or claims of right by any defendant to the deposits of the city. Equally notable is the absence of any allegation of legal challenge by anyone to the present ordinance or depository practices of the city. Section 95.355 provides that boards of aldermen in fourth class cities may select a depository for the funds of their cities. Such a grant vests a discretion in the board in selecting such depository. It does not compel the exercise of that discretion in any way. The board has exercised that discretion in Ordinance 1897, and, while some or all of the defendants may prefer a different exercise of that discretion, none have made a specific challenge to the legality of the ordinance. No challenge has been leveled at the practice of the City in depositing funds in an institution which may not be a "banking institution" under the ordinance nor have the parties raised any question about the meaning of the term "banking institution" in the ordinance. Viewing the petition in its most controversial light, it seeks at most a declaration from the court of what would be the legal status of a different ordinance if and when the city passes one pursuant to requests from some of the defendants.[3] This would not be a declaration of existing law to existing fact, but purely an advisory opinion on a hypothetical state of facts. It does not present a justiciable controversy. Under certain circumstances a city may seek a declaration of the validity of its own ordinances as in City of Nevada v. Welty, 356 Mo. 734, 203 S.W.2d 459 (1947). There the city sued to have an ordinance outlawing stockpens in a given area declared valid. The owner had refused to remove the stockpens and the city sought a declaratory judgment to determine its liability for removing the stockpens itself. The Supreme Court found such a declaration was not advisory because the city and the defendant were involved in a present controversy over the validity of the ordinance and the parties' rights thereunder. For the reasons previously discussed, we find no such present controversy here. We also find no justiciable controversy because of the allegedly conflicting opinions of the Attorney General. Such 146 opinions merely establish a difference of opinion on a question of law and such difference of opinion does not establish a justiciable controversy. Gershman Investment Corp. v. Danforth, 517 S.W.2d 33 (Mo. banc 1974). We do not lack appreciation of the fact that the law regarding deposit of municipal funds in savings and loan associations has not been definitely addressed in this state by the courts. We also appreciate that resolution of the underlying issue is a matter of importance to financial institutions and municipalities throughout the state. But, it is not the province of the courts to render advisory opinions on abstract or hypothetical questions of law arising from differences of opinion of the law. It is the province of courts to adjudge actual legal controversies between parties. We find no such actual legal controversy here sufficient to invoke the jurisdiction of the courts. Judgment reversed and remanded with directions to dismiss plaintiff's petition for lack of jurisdiction. SATZ and PUDLOWSKI, JJ., concur. NOTES [1] All statutory references are to RSMo. 1978. [2] There is some confusion in the law as to whether the court should look only to the petition in determining the existence of a justiciable controversy, or may also look to the answer, or even to the entire record. Compare Pollard v. Swenson, supra, Land Clearance For Redevelopment Authority v. City of St. Louis, 270 S.W.2d 58 (Mo. banc 1954) [2], City of Joplin v. Jasper County, supra. Here we find no such controversy regardless of what we examine. [3] The record does reflect that the Board passed a different ordinance, allowing use of savings and loan associations as depositories, which was vetoed by the mayor because of doubts of its validity. The veto was not overridden. Whether the city would again pass such an ordinance is speculative at best.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518552/	639 S.W.2d 848 (1982) STATE of Missouri ex rel. BROOKS ERECTION & CONSTRUCTION COMPANY, Plaintiff, v. The Honorable Gary M. GAERTNER, Judge of the Circuit Court of St. Louis City, Missouri, Defendant. No. 45615. Missouri Court of Appeals, Eastern District, Division One. July 20, 1982. Motion for Rehearing and/or Transfer Denied September 17, 1982. Arthur L. Smith, Richard J. Pautler, Patricia Winchell-Hemmer, St. Louis, for plaintiff. Thomas R. McGinn, St. Louis, for defendant. 849 SNYDER, Judge. This is an original proceeding in mandamus to compel defendant to reinstate a default judgment against Slay Bulk Terminals, Inc. (Slay Bulk) that the defendant trial judge had set aside pursuant to a motion by Slay Bulk. Plaintiff claims defendant lacked jurisdiction to set aside the judgment. This court agrees. The alternative writ is made peremptory. On October 3, 1980 plaintiff filed an action for monies due on a contract against Slay Transportation Co. (Slay Transportation). On March 6, 1981 plaintiff amended its petition to add Slay Bulk as a defendant. On April 8, 1981 plaintiff filed a notice of default and inquiry against both Slay Bulk and Slay Transportation. On May 14, 1981 the trial court, after a hearing on the amount of damages, entered a default judgment against Slay Bulk. On May 22, 1981 both trial defendants moved to set aside the default judgment. The court denied this motion on August 17, 1981. On that date plaintiff, without leave of court, dismissed its action without prejudice against Slay Transportation. Both trial defendants filed a notice of appeal. On September 30, 1981, after filing the notice of appeal, and 44 days after the trial court's denial of the first motion to set aside, the trial defendants filed a second motion to set aside the judgment. Plaintiff filed a petition for a writ of prohibition or mandamus to stop the trial court's consideration of the second motion to set aside. This court denied the petition. On March 12, 1982 the trial court, after a hearing, granted the motion to set aside the judgment. Plaintiff then commenced the instant action. The central issue is whether the trial court had jurisdiction to consider the second motion to set aside. Mandamus will lie to correct an act done without jurisdiction. State ex rel Emcasco Insurance Co. v. Rush, 546 S.W.2d 188, 200[6, 7] (Mo.App.1977); State ex rel. M.B. v. Brown, 532 S.W.2d 893, 895[1-3] (Mo.App.1976). Plaintiff claims the August 17, 1981 ruling denying the motion to set aside the default against Slay Bulk, combined with the dismissal of Slay Transportation under Rule 67.01 was a final judgment and that, under Rule 75.01, the trial court lost jurisdiction over the case 30 days later. The second motion to set aside was filed 44 days after August 17, 1981 and therefore the court lacked jurisdiction. This court agrees that the final judgment was entered August 17, 1981. Defendant claims that the judgment was not final on that day because Slay Transportation was not properly dismissed, no leave of court having been obtained by plaintiff. Because all issues between all parties were not resolved, according to defendant, the default remained interlocutory and within the jurisdiction of the trial court. See, State ex rel. Eichorn v. Luten, 561 S.W.2d 435 (Mo.App. 1978). Whether the dismissal was proper turns on the meaning of Rule 67.01. Rule 67.01 provides, in part, "A civil action may be dismissed by the plaintiff without prejudice without order of court anytime prior to the introduction of evidence at the trial. After the introduction of evidence is commenced, a plaintiff may dismiss his action without prejudice only by leave of court or by written consent of the adverse party." The Missouri Supreme Court has determined that "the introduction of evidence at the trial" means evidence adduced at a trial on the merits. Garrison v. Jones, 557 S.W.2d 247, 249[1] (Mo. banc 1977). Defendant claims the May 14, 1981 hearing on the amount of damages was a trial on the merits and that plaintiff introduced evidence at that time. Therefore, plaintiff needed leave of court or consent of its adversary[1] to dismiss Slay Transportation. A default proceeding, however, is not a trial. Crossland v. Admire, 118 Mo. 87, 24 S.W. 154, 154 (1893); Farrell v. DeClue, 365 S.W.2d 68, 72[6] (Mo.App.1963). All claims are admitted by the default with 850 the exception of unliquidated damages. Sumpter v. J.E. Sieben Construction Co., 492 S.W.2d 150, 153[8-11] (Mo.App.1973). In a hearing to assess those damages "the inquiry is directed solely to the amount for which the judgment shall be given. No issue between the parties is tried." Crossland v. Admire, supra; accord, Farrell v. DeClue, supra. Because no trial on the merits occurred, plaintiff's dismissal of Slay Transportation was proper. On August 17, 1981 all issues between all parties had been resolved. The default judgment therefore became final and the trial court lost jurisdiction over the judgment 30 days later. Rule 75.01. Defendant, however, further claims that even if the court had no authority under Rule 75.01 to consider the second motion to set aside the court could still consider the motion under Rule 74.32. Rule 74.32 gives the trial court jurisdiction for 3 years after a judgment becomes final to vacate the judgment for an irregularity. This argument might be persuasive except for the fact that Slay Bulk filed a notice of appeal. The filing of the notice of appeal and payment of the docket fee removed the case from the jurisdiction of the lower court. State v. Armstrong, 605 S.W.2d 526, 529[1-4] (Mo.App.1980); Brock v. Steward, 519 S.W.2d 365, 367[1] (Mo.App. 1975). Defendant cites State ex rel. Eichorn v. Luten, supra, for the proposition that filing a notice of appeal does not remove the trial court's jurisdiction to consider a motion to set aside a default. Luten, however, is distinguishable because there the default was against only one defendant and several other defendants remained in the case. Therefore, the default was interlocutory and not appealable, and the notice of appeal did not remove the trial court's jurisdiction. State ex rel. Eichorn v. Luten, supra at 438. In this case the default judgment is final. The default defendant is the only defendant remaining in the case. The notice of appeal removed the case from the trial court's jurisdiction. The trial court's setting aside of the judgment, therefore, was without jurisdiction. Mandamus is the proper remedy to correct this action. Plaintiff argues that granting a motion to set aside this judgment under Rule 74.32 would be a clear abuse of discretion. Plaintiff urges this court to issue the writ on this basis, as well as the trial court's lack of jurisdiction. Mandamus will lie to remedy a clear abuse of discretion. State ex rel. Keystone Laundry and Dry Cleaners, Inc. v. McDonnell, 426 S.W.2d 11, 15[4] (Mo.1968). The abuse of discretion must be clear. If there is any doubt of the legal right to compel the trial court to act, mandamus will not lie. State ex rel. Christian v. Lawry, 405 S.W.2d 729, 731[6-7] (Mo.App.1966). Plaintiff correctly points out that Rule 74.32 provides only a very narrow remedy. The judgment may be set aside for an irregularity under Rule 74.32 only if there was a procedural error patent on the face of the record. State ex rel. State Highway Commission v. Livingston, 594 S.W.2d 651, 654[1] (Mo.App.1980); Godsy v. Godsy, 565 S.W.2d 726, 732[6, 7] (Mo.App.), appeal dismissed, 439 U.S. 960, 99 S. Ct. 445, 58 L. Ed. 2d 419 (1978); Comment, Procedure Setting Aside Final Judgments in Missouri, 28 Mo.L.Rev. 281, 286-90 (1963). The trial court in its order cited no irregularity and in fact gave no specific reason for setting aside the default. In this case plaintiff has failed to provide this court with a complete record. Thus, this court cannot say without a doubt that no error appears on the face of the record. Because this doubt exists, mandamus would not lie on the basis of the trial court's purported abuse of discretion under Rule 74.32. However, mandamus will lie because the trial court lacked jurisdiction at the time the second motion to set aside was filed and ruled upon. The alternative writ is made peremptory. CRANDALL and SATZ, JJ., concur. NOTES [1] Written consent of the adverse party was not obtained.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518559/	639 S.W.2d 286 (1982) Frank L. COURTIN and Nettie E. Courtin, Plaintiffs-Respondents, v. McGRAW CONSTRUCTION CO. and Robert McGraw Defendants-Appellants. No. 44771. Missouri Court of Appeals, Eastern District, Division Two. August 31, 1982. 287 Charles M. M. Shepherd, Clayton, for defendants-appellants. Donald E. Heck, Clayton, for plaintiffs-respondents. GUNN, Presiding Judge. Robert McGraw, defendant-appellant, appeals from the denial of a motion to set aside a default and judgment arising out of a breach of contract case. The appeal raises the following points of alleged error in entering the default: (1) defendant's answer was in the court file when judgment was entered; (2) no notice was given of the final default hearing; (3) the evidence was insufficient to establish defendant's liability; (4) there was misconduct on the part of plaintiffs' counsel in failing to inform the trial court that defendant's answer had been filed. We affirm. Defendant Robert McGraw and his closely held corporation, McGraw Construction Company[1] entered into an agreement to remodel plaintiff-respondents' home. Plaintiffs paid $5,000 as a down payment. Immediately discontent with defendant's work, plaintiffs ordered the work stopped and demanded the return of the down payment, which was refused. Plaintiffs then brought action against defendant in three counts: return of the $5,000 and costs of having the work completed by others; damages for fraudulent misrepresentation; recovery under the Missouri Merchandising Practices Act, Chapter 407, RSMo 1978, and for attorney's fees and injunctive relief. Service of the petition was obtained on defendant on November 20, 1980. Defendant filed a battery of motions which were denied with twenty days granted to file pleadings to February 20, 1981. No pleadings were filed, and on May 7, 1981, plaintiffs were granted an interlocutory judgment of default pursuant to Rule 74.045. On May 22, 1981, defendant finally mailed his answer to plaintiffs' attorney. On the same date final default hearing was set for May 28, 1981 to determine damages under Rule 74.09. On May 28, 1981, after hearing, the trial court entered judgment against defendant on all three counts of plaintiffs' petition, including attorney's fees. Defendant was not present at these proceedings. Defendant first contends that the trial court erred in proceeding by default, as an answer had been filed before final judgment was rendered. Defendant would enjoy a better position for argument if interlocutory judgment on default under Rule 74.045 were rendered subsequent to answer being filed. G. H. Kursar, D.O., Inc. v. Fleischer, 602 S.W.2d 870, 872 (Mo.App. 1980). But in this instance, no answer was filed until after the interlocutory judgment was entered of record. The consequence is that the cause of action pleaded is, in effect, admitted, and the defendant is precluded from participation in the proceedings except for inquiry on damages if the claim 288 is for an unliquidated sum. Sumpter v. J. E. Sieben Construction Co., 492 S.W.2d 150, 154 (Mo.App.1973). The filing of the answer after the entry of the interlocutory default had no legal effect.[2] Defendant then sought Rule 75.01 relief to have the default set aside. When that effort was denied, this appeal followed. Though appellate courts favor trial on the merits rather than default, particularly when a substantial defense exists, the trial court has broad discretion to grant or deny a motion to set aside a default judgment. Metts v. Metts, 625 S.W.2d 896, 900-01 (Mo.App.1981). Defendant argues that his meritorious defense compels setting aside the default.[3] But that is not enough. Reasonable excuse for failing to plead coupled with the existence of a substantial defense must be present to justify a finding that the trial court's refusal to set aside the default is capricious. Metts v. Metts, 625 S.W.2d at 900-01; Williams Energy Co. v. Tracy Truck Leasing, Inc., 562 S.W.2d 765, 767 (Mo.App.1978). The record does not indicate that the trial court's ruling was arbitrary. Defendant stresses that he received no notice of the final default hearing.[4] But the defendant is not entitled to service of the notice of default as a matter of right. Rule 43.01(a). Generally, a party who has been properly summoned is charged with notice of all subsequent proceedings, though no actual notice has been received. Harriman v. Household Finance Corp., 608 S.W.2d 117, 118 (Mo.App.1980). Plaintiffs were not required to give defendant notice as to when the Rule 74.09 hearing would be held, and the trial court committed no error in proceeding to hear the matter. Human Development Corp. of Metropolitan St. Louis v. Wefel, 527 S.W.2d 652, 656 (Mo.App.1975). See In re Marriage of Millsap, 559 S.W.2d 69, 71 (Mo.App.1977), holding no notice of hearing required on default in child custody modification proceeding. Defendant contends that the evidence is insufficient to establish his liability. However, by the interlocutory judgment of default, all allegations of the petition which did assert liability are admitted. Sumpter v. J. E. Seiben Construction Co., 492 S.W.2d at 154. Finally, defendant implies that plaintiffs' counsel was duplicitious by failing to inform the court that he had received a copy of defendant's answer, though no pleading appeared in the court file. The record fails to support a finding of any chicanery which would serve as a basis for overturning the trial court's action. Judgment affirmed. CRIST and SIMON, JJ., concur. NOTES [1] McGraw Construction Company became bankrupt and action against it was dismissed. It is not a party to this appeal. [2] See Rule 74.05 allowing default judgment to be set aside for good cause before damages assessed for final judgment rendered. [3] Defendant argues as a defense that the contract was between plaintiffs and defendant corporationnot involving him as an individual. [4] Defendant asserts St. Louis County Circuit Court Local Rule 36.1.4 regarding notice to be given to parties in default matters. This item is not preserved as having been raised for the first time on this appeal, and the rule, which applies only to dissolution proceedings, was not in evidence. In re Marriage of Dickey, 553 S.W.2d 538, 540 n.2 (Mo.App.1977); Cusack v. Green, 252 S.W.2d 633, 635 (Mo.App.1952).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518557/	639 S.W.2d 501 (1982) Carl Vernon PHILLIPS, Appellant, v. The STATE of Texas, State. No. 2-81-196-CR. Court of Appeals of Texas, Fort Worth. September 22, 1982. 502 Mark Greer, Fort Worth, for appellants. Tim Curry, Dist. Atty., and C. Chris Marshall, Asst. Dist. Atty., Fort Worth, for appellees. Before SPURLOCK, HUGHES and HOLMAN, JJ. OPINION HOLMAN, Justice. Appeal is taken from conviction for burglary of a building. V.T.C.A. Penal Code, § 30.02. The punishment, enhanced by two prior felony convictions and assessed by the jury, is imprisonment for life. We affirm. Appellant complains that (1) he did not receive a speedy trial; (2) enhancement counts were added to the indictment as retaliation for his motion to quash; and (3) an oral statement that he made while under arrest was allowed in evidence. Appellant has filed a pro se brief in addition to the brief filed by his counsel. Since there is no right to hybrid representation, the pro se brief presents nothing for review. Landers v. State, 550 S.W.2d 272 (Tex.Cr.App.1977). Appellant was arrested on August 28, 1980, for burglary of a building. A defendant accused of a felony offense is entitled to be tried within 120 days of the commencement of the criminal action. V.A.C.C.P. art. 32A.02, § 1(1). The right to a speedy trial is guaranteed by the Sixth Amendment to the Constitution of the United States under the Fourteenth Amendment's due process clause. Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). In Texas, the statutory right to speedy trial is in V.A.C. C.P. art. 32A.02. The date of the original indictment is September 23, 1980. The State announced ready for trial on September 29, 1980, October 503 30, 1980, November 10, 1980 and December 18, 1980. Appellant did not challenge any of the State's announcements of ready. On January 5, 1981, appellant filed a motion to set aside the indictment on the ground that it failed to inform him of the type of ownership of the building in question, a requirement imposed by a panel decision of the Court of Criminal Appeals on December 17, 1980 in Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.1981). The Court of Criminal Appeals subsequently sat en banc on rehearing, July 1, 1981, and overruled the panel's requirement. The State's original indictment was valid under the en banc decision. The record contains no ruling on appellant's motion to quash. However, between the Court of Criminal Appeals panel decision and the en banc rehearing, the State reindicted appellant on February 3, 1981 and added allegations as to ownership and two enhancement counts. The State announced ready for trial on the new indictment February 5, 1981 and February 17, 1981. Trial began February 18. The evidence is that within 120 days of appellant's arrest, and through February 18, 1981, the State was ready to try appellant for the offense of burglary of a building. In the bifurcated system of trial in Texas, the enhancement counts of an indictment only go to the determination of punishment and not to the offense charged. We conclude that the requirement that the State be "ready for trial", in the context of the Speedy Trail Act, means the State must be ready to try the accused for the offense charged. Readiness on enhancement counts is not an essential element of readiness for trial of that offense. In the case at bar, delay in trial was justified by the exceptional circumstance of the Court of Criminal Appeals panel decision in Thomas, supra, which had an interlocutory impact on indictments for the offense of burglary of a building. Delays justified by exceptional circumstances are excluded from the time limitations of the Speedy Trial Act. V.A.C.C.P. art. 32A.02, § 4(10). Appellant's first ground of error is overruled. In his second ground, appellant complains that the enhancement counts were added in retaliation for his motion to quash. During the pre-trial hearing, the prosecutor testified that the enhancement counts were not a direct result of appellant's motion to quash. He testified that the original computer reports failed to show appellant's prior conviction and it was not until November 1980, that the computer printout from the Texas Department of Public Safety disclosed appellant's prior conviction. The prosecutor further testified: Once the motion to quash was filed I felt that I had to file a new indictment meeting the standards of Thomas v. State. At that time I had ordered the penitentiary packs prior to December 24th in preparation for trial on January 5, 1981. On January 5, 1981, you filed your motion to quash ... At that time, the State, looking at the law, went back to the Grand Jury to reindict it. At the same time we had received the penitentiary packs in the early part of that week, January 5th, and we placed the enhancement counts for the prior convictions into this new indictment. The record reflects that the reindictment and added enhancement allegations were the result of the Thomas panel decision of December 17, 1980, and the delays experienced in the receipt of penitentiary packets. There is no evidence that the enhancement counts were added in retaliation for appellant's motion to quash. The second ground of error is overruled. In his third ground, appellant argues that the trial court erred in admitting testimony about the oral statement he made while under arrest. The evidence is that (1) the arresting officer searched appellant for weapons at the scene, and (2) not more than ten seconds elapsed between the time appellant was *504 searched and the time he turned around and told the officer that "The rest of the stuff is on the roof." During a hearing outside the presence of the jury, appellant's attorney conducted the following examination: [Defense Counsel]: Officer Pricer, I believe that just before the jury left her you stated that he said something to you? Officer Pricer: Yes, sir. [Defense Counsel]: All right. Could you tell us what he said? Officer Pricer: He stated that the rest of the stuff was on the roof. [Defense Counsel]: Now, he said, "The rest of the stuff is on the roof."? Officer Pricer: That's correct. [Defense Counsel]: Had you asked him any questions? Officer Pricer: No, sir, I had not. [Defense Counsel]: Had you informed him of his Constitutional rights? Officer Pricer: Not at that point, no, sir. [Defense Counsel]: Had you told him he was under arrest? Officer Pricer: Not at that point. [Defense Counsel]: Was he free to leave? Officer Pricer: No, sir, he was not. [Defense Counsel]: After you had him handcuffed? Officer Pricer: That's correct. [Defense Counsel]: Did he say anything further to you? Officer Pricer: After I read him his Constitutional rights, not before. [Defense Counsel]: So, between the time that you placed the handcuffs on him and the time that you read him his rights the only thing he said to you was, "The rest of the stuff is on the roof."? The State relies upon the principle of res gestae as justification for the admissibility of the testimony. We agree. In Smith v. State, 514 S.W.2d 749, 752 (Tex.Cr.App. 1974), the scenario for res gestae was reviewed as follows: There must have been an exciting, emotionally stimulating or physically painful event, the admission or assertion must have been made so soon after the occurrence that the declarant is still in the emotional grip of the shocking event, and the assertion must relate to the event before evidence can be admitted under this exception. In the instant case, appellant's statement was made while he was still in the emotional grip of having jumped off the roof and having been apprehended immediately. The evidence is that his statement was blurted out in the spontaneity of the arrest. We hold that the statement is admissible as res gestae of the arrest. Because appellant's statement was made immediately upon his apprehension and not during custodial interrogation, neither Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) nor V.A.C. C.P. art. 38.22 would render the statement inadmissible. May v. State, 618 S.W.2d 333 (Tex.Cr.App.1981). The third ground of error is overruled. Judgment is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518670/	953 S.W.2d 559 (1997) 330 Ark. 76 Willie Gaster DAVIS, Appellant, v. STATE of Arkansas, Appellee. No. CR 97-401. Supreme Court of Arkansas. October 2, 1997. Teri Chambers, Little Rock, for Appellant. Winston Bryant, Atty. Gen., David R. Raupp, Asst. Atty. Gen., Little Rock, for Appellee. 560 IMBER, Justice. The appellant, Willie Gaster Davis, appeals his judgments of conviction for first-degree murder, robbery, theft of property, and false imprisonment. On appeal, he argues that the trial court erred in failing to suppress his statement and that uncounseled misdemeanor convictions were impermissibly introduced against him during sentencing. We find no error and affirm. Because Davis does not challenge the sufficiency of the evidence on appeal, we provide only a brief recitation of the facts adduced at trial. Traci Noble testified that she was best friends with the victim, Nikki Muse. On April 21, 1995, Muse (who was driving) and Noble went out riding in a white Grand Am belonging to Noble's sister. They eventually went to Dumas to find Odis Madden, "Mane," a friend of Noble's. While driving in Dumas, they saw some boys on the corner who flagged them down. Noble explained that they were looking for Madden, and the boys answered that they could show them where he lived. Noble and Muse allowed these three boys to enter the back seat of the vehicle, although Noble said that neither she nor Muse knew who they were. Noble testified that these boys led them to a dead-end street, and told them that Madden lived at a house that did not have lights on at the time. The boy on Noble's side of the car began to get out of the vehicle, pulled her out of the car, and grabbed the gold chains she was wearing, telling her to "give him my money." Noble testified that the boy on Muse's side of the vehicle "[did] the same thing with her, Nikki." Noble later identified the man behind her who took her chains as Willie Spencer. She thought the boy in the middle, who ran away, was named Bryan. The third boy pushed Muse into the passenger seat, sat in the driver's seat, and drove away. Noble saw this boy demand money from Muse, who in turn gave money to him. Noble testified that there was no doubt in her mind that Muse did not want to go with this boy. She never saw Muse alive again. She made an in-court identification of Davis as the man who demanded money from Muse and drove off with her. Noble managed to ultimately escape from Spencer after which she contacted the police. At the police station Noble was shown a photo lineup and eventually identified Davis as the man who drove off with Muse. Spencer testified that on April 21, 1995, he was standing around with Willie Davis and Bryan Woods on Cherry Street in Dumas. He said that two girls approached them driving a white Grand Am; he knew the names of both girls. He testified that Noble asked them if they wanted to go riding, and if they knew where Odis Madden lived. The boys got in the car and led the girls to a dead-end street. Spencer testified that Davis got in the car first, behind Muse, then he got in, and then Bryan Woods. They directed the girls to a dead-end street, Peach Street, when Spencer grabbed Noble and took her chains; Bryan Woods then ran away. Spencer testified that he demanded money from her, but that he gave Noble her chains back. Spencer saw Davis get out of the car telling Muse "to scoot over," adding that Davis "[m]ight of did choke [Muse]." Spencer was then presented with his testimony from his own trial, where he testified that Davis "wasn't acting right. As soon as the car stopped ... he said this is a robbery and he just grabbed her." Spencer also testified that he knew that Muse did not want to leave with Davis, and that it was Davis who directed the girls to Peach Street, which was not where Odis Madden lived. A police officer found a vehicle matching the description of the missing Grand Am in front of 405 West Banks Street. Inside the police discovered Davis, who appeared to be asleep on a couch, as well as Muse in a sprawled position on the same couch. Muse was dead with what appeared to be blood coming from her vaginal and anal areas. At this time Davis came up off the couch and said "did you get the other two." When asked who he was talking about, he said, "Willie Spencer and Bryant. They left with the other girl." While in custody, Davis gave a statement to Everett Cox, the Dumas Chief of Police, which was admitted at trial. In this statement, Davis admitted that he told Muse to 561 give him the money that she had and that he told her to get in the passenger side of the car. Davis said that they rode around looking for Noble and Spencer, and that Muse later consented to having sex. The medical examiner's testimony established that Muse had neck injuries consistent with manual strangulation. Her injuries also suggested that she had been sexually assaulted. The jury convicted Davis of first-degree murder, robbery, theft of property, and first-degree false imprisonment. The jury was unable to reach a verdict on the rape charge, and the trial court granted a mistrial on that count. For sentencing purposes, the underlying robbery and false-imprisonment convictions were merged with the first-degree murder conviction. The trial court, on the State's motion, dismissed the theft of property misdemeanor conviction. The jury sentenced Davis to a term of life imprisonment. 1. Voluntariness of Davis's April 28 Statement. At the suppression hearing, Chief of Police Everett Cox testified that at 5:47 a.m. on April 22, after Davis was read his Miranda rights, Davis said that he would not make a statement. Later that morning, Davis was taken to Dumas Municipal Court for his arraignment. Cox was aware that at the time, attorney Bing Colvin was appointed as Davis's public defender. Cox conceded that any subsequent contact with Davis would have been after the appointment of counsel for Davis. Cox testified that at 1:54 p.m. on April 22 he initiated contact with Davis in an attempt to take a statement from him. On April 23, Cox recalled that someone from the police again initiated contact with Davis in an attempt to take a statement. Cox was not sure who initiated this contact, but believed it was Investigator Donigan. Cox testified that on April 28, Davis contacted him "through the jail," saying that he wanted to talk with him. When asked whether anyone made contact with Davis prior to that request, Cox answered in the negative. After Cox received this request, he conducted a videotaped interview with Davis. Cox testified that on the videotape, he "asked [Davis] to state why he wanted to talk and he said that he did make initial contact with me before anything was done." Cox added that he read Davis his Miranda rights, and that no threats or other coercive acts were directed toward Davis off of the camera. Additionally, Davis was not restrained, and he made no requests that were denied him. Davis also executed a rights-waiver form that was filled out by Cox as Davis answered the questions; Davis initialed the individual responses. Cox also wrote out the substance of Davis's statement; Davis signed this statement at the end. Officer Michael Donigan testified that on the afternoon of April 22, at 1:54 p.m., he came into contact with Davis to question him about the homicide. Donigan read Davis his Miranda rights from a rights form, which Davis executed. Donigan wrote down the substance of Davis's statement. Donigan also testified that he was present at 1:19 p.m. on April 23, when he and Officer Monty Kilibrew again executed a rights waiver with Davis, however Davis declined to make a statement at this time. Chester Lee James, Jr., an inmate at the Dumas City Jail while Davis was also incarcerated there, testified that the police contacted Davis. James recalled that either Officer Donnahoe [sic?] or Kilibrew "consulted with [Davis] at one time ... asked [Davis]... why he killed the girl." James testified that Davis became upset at this questioning. After this, the officer told Davis that he "want[ed] to make sure you get the chair." When asked to recall how long Davis had been in jail when this contact occurred, James answered three or four days. James also testified that on April 28, he contacted the chief of police at Davis's request. Prior to trial, the State conceded that the statements taken at 1:54 p.m. on April 22 and the one taken at 1:19 p.m. on April 23[1] were inadmissible because the interrogating officers could not recall who initiated the questioning with Davis. However, the trial court overruled the motion to suppress with 562 respect to the April 28 statement, which was ultimately admitted at trial. On appeal, Davis contends that the trial court erred in denying his motion to suppress his April 28 statement. He first argues that this court's holding in Bradford v. State 325 Ark. 278, 927 S.W.2d 329 (1996), cert. denied ___ U.S. ___, 117 S. Ct. 583, 136 L. Ed. 2d 513 (1996), mandates suppression of his April 28 statement, and alternatively argues that his waiver of rights and subsequent statement on April 28 was not voluntarily made due to the intervening police-initiated contacts. Davis initially relies on Bradford v. State, supra, where this court held that an inculpatory statement taken without the presence of counsel, but after counsel had been appointed at a probable cause hearing, was a violation of the appellant's Sixth Amendment right to counsel. Bradford involved an analysis of Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986), where the United State Supreme Court held that "if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation in invalid."[2] In Bradford, the appellant had not requested counsel, but counsel had nonetheless been appointed. This court concluded that the appellant's unawareness that she had been appointed counsel was irrelevant, "Just as a police officer who wishes to initiate an interrogation during the custody stage must determine if a request for counsel has been made [citation omitted], simple diligence requires that police officers take pains to learn whether counsel was appointed at a probable cause hearing." Bradford, supra. In the present case, Davis appears to concede that the holding in Michigan v. Jackson is limited to police-initiated interrogation, yet maintains that this court in Bradford v. State, supra, did not "specify that its ruling was based on the fact that police officers rather than Bradford initiated the contact." This argument is misplaced. A plain reading of Bradford v. State suggests that this court had no intention of broadening the Supreme Court's holding found in Michigan v. Jackson. Rather, the question presented in Bradford was whether the appellant's failure to actually request counsel affected her right to counsel under Michigan v. Jackson, and if knowledge of the municipal court's appointment of counsel could be imputed to police. Davis concedes that "on April 28, 1995, it was undisputed that [Davis] initiated the contact with Chief Everett Cox." Because Davis himself initiated contact with the police on April 28, nothing in Bradford v. State or Michigan v. Jackson mandates a result opposite of that reached by the trial court. As one treatise has noted, "Even after counsel is appointed at arraignment, a defendant may choose to waive counsel without notice or consultation with an attorney. Under Jackson, police cannot initiate the contact, but the defendant is free to initiate the contact." DAVID M. NISSMAN & ED HAGEN, LAW OF CONFESSIONS § 7:10 (2d ed.1994) (citing Missouri v. Owens, 827 S.W.2d 226 (Mo.Ct.App. 1991)). Davis alternatively argues that even if he effectively waived his right to counsel, this action was coerced by the police efforts in contacting him after the appointment of counsel on April 22 and 23. A custodial confession is presumptively involuntary and the burden is on the State to show that the waiver and confession was voluntarily made. Clark v. State, 328 Ark. 501, 944 563 S.W.2d 533 (1997). In examining the voluntariness of confessions, this court makes an independent determination based on the totality of the circumstances, and reverses the trial court only if its decision was clearly erroneous. Kennedy v. State, 325 Ark. 3, 923 S.W.2d 274 (1996). As explained in Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992), the inquiry into the validity of the defendant's waiver has two separate components: whether the waiver was voluntary, and whether the waiver was knowingly and intelligently made. In determining voluntariness, we consider the following factors: age, education, and intelligence of the accused, lack of advice as to his constitutional rights, length of detention, the repeated and prolonged nature of questioning, or the use of physical punishment. Hood v. State, 329 Ark. 21, 947 S.W.2d 328 (1997). Other relevant factors in considering the totality of the circumstances include the statements made by the interrogating officer and the vulnerability of the defendant. Id. In addition, the accused must have a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it in order for his waiver to be knowingly and intelligently made. Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996). In the present case the thrust of Davis's argument is that the intervening police contacts on April 22 and 23 rendered his waiver and statement on April 28 involuntary. Davis emphasizes that after his initial expression of his intent not to make a statement and his appointment of counsel on the morning of April 22, the police made two separate attempts to take a statement from him. Chief Cox himself testified that this occurred at 1:54 p.m. on April 22 and later on April 23. The encounter at 1:54 p.m. on April 22 yielded a statement, not admitted at trial, while Davis did not give a statement at the interview at 1:19 p.m. on April 23. In the present case, the immediate fruits of the two police-initiated contacts were not admitted at trial. Additionally, there was a five-day gap between the police-initiated contact on April 23, and the defendant-initiated contact on April 28. To the extent that it can be argued the police-initiated contacts were an attempt at repeated questioning designed to wear down Davis's resistance or change his mind, this five-day gap would serve to avoid the effects of repeated questioning. See Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986). Some courts have refused to recognize a defendant's initiation of contact with police when it is the result of an earlier, illegal interrogation. Nissman & Hagen, supra, § 6:35 at n. 91. For example, in Wainwright v. Delaware, 504 A.2d 1096 (Del.1986), cert. denied, 479 U.S. 869, 107 S. Ct. 236, 93 L. Ed. 2d 161 (1986), the defendant initiated a conversation and gave an inculpatory statement some forty-five minutes after an illegal police-initiated interrogation under Edwards v. Arizona, supra. That the defendant's response came forty-five minutes afterward did not "sanitize it". Wainwright v. Delaware, supra. The Delaware Supreme Court further explained: Nor does the fact that the defendant's statement was made after he was placed alone in a cell render it a purely spontaneous one. Indeed, the opportunity to mull over the effect of [the codefendant's] accusatory statements could reasonably have had the opposite effectto impress upon the defendant the seriousness of his predicament and the need to rebut his codefendant's accusations. Any attempt to "spark" the accused's initiative to make a statement in the absence of counsel through presentation of evidence will contaminate the waiver. [citations omitted]. Wainwright v. Delaware, supra. In the present case, the record does not show that the police were attempting to "spark" Davis's initiative in making the April 28 contact. Significantly, the defendant-initiated contact came some five days after the last police-initiated contact. The evidence also suggests that Davis voluntarily waived his rights and elected to make a statement on April 28. Davis was nineteen years of age at the time of the statement. He had completed at least the ninth grade, and could read and write. A forensic mental evaluation showed that Davis's intellectual functioning was within the low-average range. The record also demonstrates that Davis was fully 564 advised of his constitutional rights, as is evidenced by the execution of the rights-waiver form as well as Chief Cox's testimony. There was little or no evidence of threats of physical violence against Davis, promises of leniency, or other misrepresentations of fact. Based on the foregoing, we cannot say that the trial court was clearly erroneous in denying Davis's motions to suppress. 2. Admissibility of Uncounseled Misdemeanor Convictions. During the sentencing phase of trial, the State introduced into evidence two misdemeanor convictions of third-degree battery that Davis obtained in 1994. Davis was only fined for these convictions, and was not sentenced to any time in prison. The record shows that Davis was not represented by counsel during these misdemeanor proceedings. On appeal, Davis argues that the admission of these uncounseled misdemeanor convictions constitutes reversible error. Davis initially cites to Baldasar v. Illinois, 446 U.S. 222, 100 S. Ct. 1585, 64 L. Ed. 2d 169 (1980) (per curiam) (plurality opinion), overruled by Nichols v. United States, 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994), where the United States Supreme Court held that a constitutionally valid misdemeanor conviction obtained under Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979),[3] could not be used under an "enhanced penalty statute" to convert a subsequent misdemeanor into a felony with a prison term. This court followed suit in State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984), where the trial court granted the defendant's motion to suppress three prior DWI convictions under a charge of DWI, fourth offense. The trial court suppressed these convictions because the defendant had not been represented by counsel in the earlier proceedings. This court affirmed, framing the issue as "whether [Baldasar] bars prior uncounseled misdemeanor convictions from being used to enhance punishment for a subsequent offense." State v. Brown, supra. This court observed that the case presented a similar situation to the enhancement statute in Baldasar, as the first DWI offense was punishable by imprisonment from twenty-four hours to one year, while the second, third, and fourth offenses were punishable in increasing ranges cumulating in imprisonment for one to six years on the fourth offense. The Brown court concluded that Baldasar controlled the facts of the case, and affirmed the trial court's suppression of the convictions.[4] Davis fails to point out that in Nichols v. United States, 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994), the Supreme Court expressly overruled Baldasar in a case involving a criminal sentencing point assessed for a prior, uncounseled misdemeanor conviction under the United States Sentencing Commission's Guidelines. The Court noted that "[e]nhancement statutes, whether in the nature of criminal history provisions such as those contained in the Sentencing Guidelines, or recidivist statutes that are commonplace in state criminal laws, do not change the penalty imposed for the earlier conviction." Id. Moreover, reliance on such a conviction was consistent with the "traditional understanding of the sentencing process," recognized as less exacting than the determination of guilt. Id. Accordingly, the Supreme Court overruled Baldasar and held that a valid misdemeanor conviction under Scott v. Illinois, supra, is also admissible to enhance punishment at a subsequent conviction. The present case does not squarely present this court with an opportunity to reconsider the continuing validity of Brown. Notably, the uncounseled misdemeanor convictions were not admitted against Davis pursuant to a recidivist or enhancement statute as contemplated in Baldasar and Brown. Rather, the misdemeanor convictions were introduced under Ark.Code Ann. § 16-97-103(2) (Supp.1995), which merely includes prior felony and misdemeanor convictions 565 within the definition of "[e]vidence relevant to sentencing." This statutory scheme simply allows the jury or court to exercise its discretion in considering all evidence relevant to sentencing, and does not mandate automatic enhancement due to prior misdemeanor convictions. We have no doubt that this procedure for admitting uncounseled misdemeanor convictions otherwise valid under Scott v. Illinois, supra, would withstand scrutiny under Nichols v. United States, supra. Accordingly, we reject Davis's argument that the admission of these convictions constituted reversible error. 3. Rule 4-3(h) Compliance. The record has been reviewed for prejudicial error pursuant to Ark. Sup.Ct. R. 4-3(h), and no reversible errors were found. Affirmed. NOTES [1] Actually, Davis did not give a statement on April 23. [2] Both the Fifth and Sixth Amendments provide a right to counsel. Under the Fifth Amendment, the right to counsel is derived from the amendment's prohibition against self incrimination while in custody. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). In other circumstances, there may be a Sixth Amendment right to counsel. See Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972) (Sixth Amendment right to counsel at critical stages of the prosecution). Under Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), once a defendant invokes his Fifth Amendment right to counsel at a custodial interrogation, the police may not interrogate any further until counsel is provided, or the "[defendant] himself initiates further communication[.]" Michigan v. Jackson, supra, may be seen as an application of the Edwards rule to the Sixth Amendment right to counsel. See David M. Nissman & Ed Hagen, Law of Confessions § 7:10 (2d ed.1994). [3] In Scott the Supreme Court held that an uncounseled misdemeanor conviction is constitutionally valid if the defendant is not incarcerated. [4] For subsequent Arkansas cases citing to Brown and Baldasar for this proposition, see, e.g., Neville v. State, 41 Ark.App. 65, 848 S.W.2d 947 (1993); Rodgers v. State, 31 Ark.App. 159, 790 S.W.2d 911 (1990); Steele v. State, 284 Ark. 340, 681 S.W.2d 354 (1984); Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518705/	153 Conn. 93 (1965) ALLEN HELFANT ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF WILTON Supreme Court of Connecticut. Argued October 6, 1965. Decided October 28, 1965. KING, C. J., MURPHY, ALCORN, HOUSE and COTTER, JS. 94 William R. Curtis, for the appellants (plaintiffs). Lawrence P. Dennin, Jr., for the appellee (defendant). COTTER, J. American Oil Company, one of the plaintiffs, pursuant to an agreement of sale with the plaintiffs Allen and Margaret E. Helfant, applied to the defendant board for a certificate of approval for the location of a gasoline service station on the Helfant property. The board denied the application, and the plaintiffs joined in an appeal to the Court of Common Pleas, claiming that the board had acted illegally, arbitrarily and in abuse of its discretion. The court found for the defendant and the present appeal was taken. 95 In passing on an application for the approval of a location of a service station, the board acts as an agent of the state under General Statutes §§ 14-321 and 14-322, its sole function being to determine if the site in question will be suitable according to specific statutory criteria designed to promote and protect the public safety.[1]McDermott v. Zoning Board of Appeals, 150 Conn. 510, 511, 191 A.2d 551; Esso Standard Oil Co. v. Zoning Board of Appeals, 148 Conn. 507, 508, 172 A.2d 607; Dubiel v. Zoning Board of Appeals, 147 Conn. 517, 520, 162 A.2d 711; Silver Lane Pickle Co. v. Zoning Board of Appeals, 143 Conn. 316, 319, 122 A.2d 218; Atlantic Refining Co. v. Zoning Board of Appeals, 142 Conn. 64, 66, 111 A.2d 1; Herrup v. Hartford, 140 Conn. 622, 628, 103 A.2d 199. The discretion is vested in the board, and a reviewing court must limit its role to determining if the board acted illegally, arbitrarily, or so unreasonably as to constitute an abuse of its discretion. Gulf Oil Corporation v. Board of Selectmen, 144 Conn. 61, 65, 127 A.2d 48; Watson v. Howard, 138 Conn. 464, 469, 86 A.2d 67; Executive Television Corporation v. Zoning Board of Appeals, 138 Conn. 452, 454, 85 A.2d 904; Mrowka v. Board of Zoning Appeals, 134 Conn. 149, 155, 55 A.2d 909. Refusal to grant a certificate of approval for a gasoline station is proper where there is good reason to do so from the standpoint of public safety, upon substantial reasons as found by the board. Note, 96 75 A.L.R. 2d 168, 215, 221; see 24 Am. Jur., Gasoline Filling Stations, § 7. The plaintiffs contend that the board, on the evidence before it, could not reasonably conclude that the operation of a service station at the proposed location would imperil the safety of the public and that its action in denying the application was therefore an abuse of discretion. The facts were not in dispute. The property in question is located on route 7 in Wilton, in an area primarily devoted to small commercial uses. A Texaco service station adjoins the plaintiffs' property on route 7 to the north. Continuing further north, after the intersection of route 7 and Orem's Lane, a dead-end road, are located Orem's Diner, Young's Plant and Shrub Nursery, and Orem's Dairy. On the opposite side of route 7 from the proposed site is the intersection of Sharp Hill Road, a residential street sloping slightly downward as it meets route 7. A Flying A service station, nonconforming as to setbacks from the highway, is located opposite the Texaco station on route 7. The board concluded from these factors,[2] among others, that "the congestion in the area and the closeness of business and other structures to the road make the proposed location for the gasoline service station particularly dangerous from the point of traffic hazard." We have said on prior occasions that it is advisable for a board to state the reasons for action taken by it under § 14-322, at the risk that a reviewing court will be unable to find any reasonable basis for the decision made. 97 Atlantic Refining Co. v. Zoning Board of Appeals, 150 Conn. 558, 561, 192 A.2d 40; Dubiel v. Zoning Board of Appeals, 147 Conn, 517, 520, 523, 162 A.2d 711. The facts relied on by the board in this case were fully set out in the minutes of its executive meeting of November 18, 1963, and these minutes were made a part of the board's answer in the appeal filed by the plaintiffs in the Court of Common Pleas. Nothing in this record indicates that the board employed any criteria other than those considerations of public safety specifically enumerated in the statute, which embrace the limits of its authority when acting in the capacity delegated to it by § 14-322. Speculation by the plaintiffs that the board was motivated by certain policy considerations outside the scope of the statute cannot of course be credited without supporting evidence. Gulf Oil Corporation v. Board of Selectmen, 144 Conn. 61, 66, 127 A.2d 48. The board presumptively operated within the mandate of the statute, and, based on the facts and conclusions recorded at the time of its decision, we cannot say that it acted unreasonably or in abuse of its discretion. Miller v. Zoning Board of Appeals, 138 Conn. 610, 613, 87 A.2d 808. Executive Television Corporation v. Zoning Board of Appeals, 138 Conn. 452, 85 A.2d 904, cited by the plaintiffs, differs factually in that the principal business of the applicant in that case was a carwashing facility, and permission to operate a retail gasoline outlet was primarily designed to accommodate the customers of that business, all of whom were required to enter the premises from a side street bearing "very little traffic." The board in the Executive case gave no reasons for its denial of the certificate, either in its own record or to the Court of Common Pleas, and that court specifically found 98 that no evidence had been offered before the board from which it could reasonably have concluded that the use of the proposed site as a gasoline station would imperil the public safety. The second claim of the plaintiffs is that the board's denial of the instant application, after having approved a similar application for a new Texaco station on adjoining and nearly identical property some three months earlier, was arbitrary and discriminatory. Even assuming these two sites were indistinguishable geographically, it does not follow that identical conclusions must be reached when applying the statutory criteria as to suitability. The contemporary use of the property at the time of the application is also relevant, particularly in this case, where there was already a Texaco station located on the premises for which the new Texaco certificate was requested. This already-existing station was nonconforming as to local zoning regulations governing minimum setbacks from the highway, while the new station was to be erected to conform to all setback regulations. The property for which the American certificate was sought was unimproved. Since the denial of the Texaco application for a new station would have had the effect of leaving the existing and nonconforming station in operation, the board, acting in the public interest, could reasonably have concluded that the Texaco application represented a potential improvement in traffic conditions, while the American application represented a potential traffic hazard. It is also clear that the traffic problems created by a single service station are different from those created by two contiguous stations on a main highway or traffic artery. There were justifiable grounds for denying the American application while approving the prior Texaco application, and 99 the board's action in so doing was not discriminatory. See Barnini v. Liquor Control Commission, 146 Conn. 416, 417, 420, 151 A.2d 697. The assignment of error dealing with the motion for rectification of the appeal has not been pursued and is considered abandoned. There is no error. In this opinion the other judges concurred. NOTES [1] "Sec. 14-322. HEARING AND FINDING OF SUITABILITY.... No such certificate shall be issued unless such ... board of appeals finds that such location is suitable for the sale of gasoline and other products, due consideration being given to the proximity of schools, churches, theatres or playhouses or other places of public gatherings, intersecting streets, traffic conditions, width of highway and effect of public travel, and that such use of such proposed location will not imperil the safety of the public...." [2] Although the board did not specifically make mention of any public buildings in the minutes of its executive session, there was evidence that Our Lady of Fatima Church and School, as well as the town hall, were located on route 7 in this general area. The board was of course entitled to take these locations into consideration when making its decision.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518718/	419 Pa. 330 (1965) Sarachman v. Avery, Appellant. Supreme Court of Pennsylvania. Argued October 11, 1965. November 9, 1965. Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ. 331 William C. Walker, with him Theodore O. Struk, and Dickie, McCamey, Chilcote & Robinson, for appellant. John J. Hickton, with him McArdle, Harrington, Feeney & McLaughlin, for appellee. OPINION BY MR. JUSTICE MUSMANNO, November 9, 1965: The trial judge in this case, after a long period of deliberation and much soul-searching, ordered a new trial because he believed that the verdict was against the weight of the evidence and that justice required, aye demanded, a new trial. The plaintiff, Joseph Sarachman, an Allegheny County motorcycle policeman was patrolling the Liberty Tubes in Pittsburgh, traveling in the left lane of a tunnel which runs north and south. The defendant, Harvey Charles Avery, was driving an automobile in the same direction, but in the right lane. Large signs in the tunnel warned motorists not to cross from one lane to the other. The defendant admitted that he crossed from the right to the left but argued that this crossing had nothing to do with the accident which happened about three-fourths of the way through the tunnel. The plaintiff testified that the defendant's car was about one and one-half car lengths in front of him in the right lane and that, without any preliminary notice of his intention, he suddenly crossed over to the left lane in front of the plaintiff and that he, the plaintiff, made every effort to avoid colliding with the car but was unable to do so and a collision followed, resulting in his being seriously injured. 332 The defendant testified that the plaintiff was pursuing him with siren blaring, that when he heard the siren he started to "slow up," then, when the policeman got close to him, he speeded up, the policeman did the same, caught up with him and struck his car in the rear. If the defendant saw the motorcycle policeman pursuing him, heard the warning siren, and slowed down to find out what the policeman wanted, why, then, did he accelerate just as the policeman was about to overtake him? The defendant explained that he feared the policeman would run him down with his motorcycle? In the first place, in a duel between a motorcycle and a full-sized automobile, the automobile has the decided superiority of power, formidableness and defensive armor over the fragile two-wheeler. In the second place, what sort of a game of "tag" did the defendant think he was playing with the policeman, by slowing up to communicate with the policeman and then dashing away as the policeman approached? The trial court, in ordering the new trial, said: "The defendant's story of events immediately prior to the accident is confused and literally impossible. We cannot comprehend how a rational mind could base a judgment upon such testimony, and we must assume that the jury either misunderstood the evidence or completely disregarded it." Even in cold print the defendant's story seems to lack verisimilitude. There was no suggestion that the policeman was intoxicated, berserk or inexperienced. He had been a member of the excellent Allegheny County Police for thirteen years, he was married and had two children. Everything in the case would argue against the bizarre explanation spoken by the defendant. The trial judge had the advantage of actually seeing the defendant and the other witnesses. He was shocked by the verdict and it is easy to see why. *333 While this case was on trial, the tragic death of President John F. Kennedy occurred. The plaintiff-appellee suggests that the strange verdict here could have been reached because the jury became inflamed against all policemen on account of the seeming laxity of attention to duty on the part of the policemen of Dallas, Texas, before, during and after the heart-rending killing of the youthful and beloved President of the nation. Angry resentment flared throughout the land that the Dallas police should have permitted a night club proprietor, with no business whatsoever in the police station, not only to enter the police station, but in full view of the policemen preening themselves for the television cameras, to shoot down the slayer of the President so as to seal for all time the mouth of the man who probably would have told what motivation lay behind his inhuman and brutal deed. Whether the Dallas events did have any effect on the minds of the jury in this case is not precisely known, any more than the world will ever know why John Fitzgerald Kennedy, in the flower of his brilliant, beautiful and heroic career, dedicated to America, should have had to die. The ordering of a new trial by the court below was in full accordance with the criterion laid down by this Court in Clewell v. Pummer, 388 Pa. 592, where Chief Justice BELL said: "Where a trial Judge or Court sees and hears the witnesses, it has not only an inherent, fundamental and salutary power, but it is its duty, to grant a new trial when it believes the verdict was capricious or was against the weight of the evidence and resulted in a miscarriage of justice . . . In such a case we will not reverse, unless there is a clear abuse of discretion or an error of law which necessarily controlled the grant of the new trial." We find no such abuse here or error of law, and accordingly affirm the order of the court below. Mr. Justice JONES and Mr. Justice ROBERTS concur in the result.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518725/	953 S.W.2d 599 (1997) 59 Ark.App. 77 Kathy STEWART, Appellant, v. STATE of Arkansas, Appellee. No. CA CR 97-236. Court of Appeals of Arkansas, Division III. October 15, 1997. 600 William R. Simpson, Jr., Public Defender, Tammy Harris, Deputy Public Defender, Deborah R. Sallings, Deputy Public Defender, Little Rock, for Appellant. Winston Bryant, Attorney General, Little Rock, for Appellee. ROBBINS, Chief Judge. Appellant Kathy Stewart appeals her conviction after a bench trial for possession of a controlled substance, cocaine, for which she was sentenced to three years' probation, ordered to pay a $250 fine plus court costs, and given thirty days in jail. Her sole point on appeal is that the trial court erred in declining to suppress the evidence seized from her person by the police officer who stopped her in the early morning of December 4, 1995. We agree with appellant and reverse her conviction. The events leading up to appellant's arrest are as follows. A Little Rock police officer was patrolling what he characterized as a "high drug traffic" area when he observed appellant standing on the corner of 27th Street and Broadway at approximately 1:45 a.m. This street corner was in front of her residence at 2715 Broadway. She was wearing a jacket, and when the officer approached her he asked her to remove her hands from her pockets. She removed them, but according to the officer's testimony, she continued to try to put her hand back into her right jacket pocket. At that point the officer determined he would do a "pat-down safety search." Upon reaching into that pocket, he found thirty-five one dollar bills, a one-hundred dollar bill, and a small matchbox. He opened the matchbox and found two rocks that appeared to be crack cocaine. When the public defender asked the officer at the bench trial what criminal activity aroused his suspicion about appellant when he approached her, the following exchange took place: "I felt that she might have been engaged in drug trafficking." "Had you seen her do that?" "Given the area, I've made numerous arrests in that area. Given the time of day and where she was standing" "But did you see Ms. Stewart engage in any of those activities other than standing on the corner?" "I felt that by being at that area, she was in engaged in that activity." "Did you see her talk to anyone, deliver any substance to anyone or do anything of that nature? "No, I did not." Appellant took the stand in her own defense. She testified that she was standing out in front of her residence. The police drove up to her, and she talked to the two officers. When they asked what was in her pockets, she told them that she had money from her paycheck, matches, and cigarettes. She approached the police car as they requested, and the police conducted a search of her outer clothing. She explained that the drugs in the matchbox belonged to her cousin who had borrowed money and her jacket earlier that evening. The State first argues that we should not reach the merits of appellant's appeal because she failed to preserve the issue for review. Specifically, it asserts that although 601 appellant filed a motion to suppress the cocaine based upon an illegal search and seizure, brought it to the attention of the trial judge at the commencement of the bench trial, and renewed her motion at the close of the trial, she failed to object to the admission of the cocaine upon the same search and seizure argument when it was introduced through the testimony of the chain-of-custody officer. The State cites Beck v. State, 12 Ark.App. 341, 676 S.W.2d 740 (1984), for this proposition, but in that case the appellant argued for the first time on appeal that the trial court should have excluded evidence based upon an illegal arrest. Such is not the case before us now; it cannot seriously be argued that this issue is being raised for the first time on appeal. The State also cites Rideout v. State, 22 Ark.App. 209, 737 S.W.2d 667 (1987), but that case involved an appellant who neither moved to suppress evidence nor objected to the evidence when it was admitted. Again, this is anything but true in the case before us today. The State presents no compelling authority that would require us to decline review of appellant's argument. We recognize that there are cases stating that, with regard to motions in limine, one must contemporaneously object to the evidence if the court initially declines to rule on the motion. Slocum v. State, 325 Ark. 38, 924 S.W.2d 237 (1996); Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995). However, those cases state that rule in the context of jury trials. Indeed, we believe that appellant was not required in this case to object again as the State presented its version of the facts to the judge. At the beginning of the bench trial, the public defender stated that a motion to suppress the evidence seized had been filed and asked if that issue could be taken up during the course of the bench trial testimony. The trial judge responded, "Sure. Sure. Let's do that." The prosecutor said nothing, acquiescing in this decision. After the prosecutor ended her examination regarding the chain-of-custody of the cocaine and rested the State's case, the public defender renewed the motion to suppress the evidence. She renewed the motion at the close of appellant's case, and the trial judge denied it "for the same reasons I stated earlier." Those reasons are not found in the record, but it is clear the motion was denied, and the trial judge found appellant guilty. On the facts of this case, we cannot say that appellant failed to preserve this issue for our review. We emphasize that this was a bench trial, and it was the trial judge who would both find the facts and rule on evidentiary questions. With an agreement to take up the issue during the course of trial and with the trial judge as the determiner of all facts and rulings, we cannot say appellant failed to preserve this issue for appeal. For this reason we reach the merits of appellant's argument. In reviewing a trial court's denial of a motion to suppress, we make an independent determination based upon the totality of the circumstances. We reverse only if the ruling is clearly against the preponderance of the evidence. Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996). Appellant argues that the State could not stop and detain her based upon Rule 3.1 of the Arkansas Rules of Criminal Procedure. We agree. Rule 3.1 was the primary basis upon which the State argued that the initial stop was valid. Rule 3.1 states in pertinent part: A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. "Reasonably suspects" means having a suspicion based on facts or circumstances that of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than bare suspicion; a suspicion that is reasonable as opposed to imaginary or conjectural suspicion. Ark. R.Crim. P. 2.1. Based upon the testimony 602 elicited from the police officer, he had nothing more than "feelings" that appellant "might" be engaged in drug trafficking. The State alternatively asserts that the police officer correctly stopped to question appellant under the authority found in Ark. R.Crim. P. 2.2, which provides that an officer may ask any person to furnish information or cooperate in the investigation of or prevention of crime. Although this was never urged as a basis to sustain the stop at the trial level, we recognize that we may affirm a trial court if it reached the right result for the wrong reason. Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993). The Arkansas Supreme Court has interpreted Rule 2.2 such that an officer may approach a citizen in much the same way that a citizen may approach another citizen and request aid or information. State v. McFadden, 327 Ark. 16, 938 S.W.2d 797 (1997). When the patrol car drove up to appellant standing on a street corner, this was simply a consensual public encounter and was not yet a seizure. See U.S. v. Hernandez, 854 F.2d 295 (8th Cir.1988). The initial encounter of appellant and the police on a public street corner fits most appropriately within the parameters of Ark. R.Crim. P. 2.2, considering the manner of the interference, the gravity of the crimes in the area, and the circumstances of the encounter. Therefore, the initial meeting between the officer and appellant was legitimate under Rule 2.2. See McFadden, 327 Ark. at 21, 938 S.W.2d 797. The behavior of the police officer was proper until the subsequent search exceeded permissible limits. Pursuant to Ark. R.Crim. P. 3.4: If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer ... may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others. In no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer or others. (Emphasis added.) The purpose of a frisk pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), is to allow an officer to pursue an investigation without fear of violence. Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982). While this encounter did not rise to the level of suspicion of criminal activity as contemplated by Rules 3.1 and 3.4, police officers cannot be asked to risk what they perceive could be a lethal encounter in performing their public duties unless they are also allowed to make a protective frisk. Certainly an officer's safety is as important during an encounter pursuant to Rule 2.2 as it is in the context of a Rule 3.1 stop with a reasonable suspicion of crime. Here, appellant's furtive movements and unwillingness to keep her hand out of her pocket warranted a protective pat-down search. However, after this protective search, the officer went beyond mere protection. We see nothing in the record to suggest that the matchbox taken from appellant's pocket contained a weapon or posed a risk to the officer's safety. Even if this is a high-crime area, without some evidence other than suspicion or a hunch that a matchbox contains a controlled substance, it is patently inappropriate for an officer, under the guise of maintaining his or others' safety, to take a matchbox and open it. This was not a search incident to arrest. A protective search must be no more invasive than is necessary to ensure the officer's safety; looking inside the matchbox ensured no more safety to the officer. As the United States Supreme Court in Terry stated: This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs. For, as this Court has always recognized, "No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." 603 Terry, 392 U.S. at 9, 88 S.Ct. at 1873 citing Union Pacific Railroad Co. v. Botsford, 141 U.S. 250, 11 S. Ct. 1000, 35 L. Ed. 734 (1891). The Court went on to state: Under our decision, courts still retain their traditional responsibility to guard against police conduct which is overbearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials. Terry, 392 U.S. at 15, 88 S.Ct. at 1876 People often have no choice but to live in what might be characterized as high-crime or high-drug-traffic areas. However, Fourth Amendment rights follow all citizens, no matter where they live. It is apparent that the police officer suspected that appellant was in possession of drugs, but searching appellant's personal belongings when the officer's safety was not in jeopardy exceeded constitutional bounds. The State asks us to follow Jackson v. State, 34 Ark.App. 4, 804 S.W.2d 735 (1991), wherein crack cocaine was discovered inside appellant's matchbox that was found during a pat-down search. An equally divided court affirmed the search of the matchbox, the divisive point being whether the opening of the matchbox was constitutional. A case affirmed by an equally divided court is afforded no precedential weight. France v. Nelson, 292 Ark. 219, 729 S.W.2d 161 (1987). On the issue before us, we are more aligned with the reasoning espoused by the dissenting judges in the Jackson case. Because this was an unreasonable search and seizure, the motion to suppress the fruit of the search should have been granted. Reversed and remanded. CRABTREE and MEADS, JJ., agree.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518674/	419 Pa. 475 (1965) McKown v. Demmler Properties, Inc., Appellant. Supreme Court of Pennsylvania. Argued October 6, 1965. November 9, 1965. 476 Before BELL, C.J., MUSMANNO, JONES, EAGEN and O'BRIEN, JJ. 477 William C. Walker, with him Dickie, McCamey & Chilcote, for appellant. Paul E. Moses, with him Robert B. Ivory, and Evans, Ivory & Evans, for appellee. OPINION BY MR. JUSTICE MUSMANNO, November 9, 1965: Thomas A. McKown, Jr., the plaintiff in this case, was injured when he walked into a building at 100 Ross Street in Pittsburgh, owned by Demmler Properties, Inc., the defendant, and fell. He brought suit in trespass against Demmler[] and recovered a verdict of $15,000. He moved for a new trial on the basis that the verdict was inadequate. The defendant moved for judgment n.o.v. The trial court ordered a new trial and refused judgment n.o.v. The defendant appealed. The plaintiff McKown was a painting estimator employed by a Neiser Company which had done some work for John Schurko, president of the Hende-Jon Furniture Showrooms, Inc., which was negotiating with Demmler, owner of the building on 100 Ross Street, to lease the building and possibly later purchase it. Having ascertained from the telephone book that Schurko had offices in the Demmler Building (we will so refer to it), he went there on October 1, 1959, to talk with Schurko. He entered through a door on Ross Street and noted that he was in a loading area with a loading platform to the rear. The area was partially lit up by 478 an electric bulb and by light coming through a window and fire doors. The lower court describes in the following language what happened: "While the lighting furnished by the above sources prevented the area from being in pitch darkness, the light was dim and because of shadows, misleading or deceptive. After allowing his eyes to adjust to the dimness of the loading area, plaintiff proceeded toward the window, bearing somewhat to his right. He was watching the floor where he was going and he thought he could see but was deceived. After proceeding some six feet, he fell off the edge of the offset. Plaintiff had never been in the building before. He knew that the platform narrowed somewhere ahead and, quite properly, was looking for the offset when the accident occurred. He testified that conditions were such that: `I thought I could see where I was going but I couldn't'." It is the contention of the defendant that the plaintiff was a trespasser or, at best, a gratuitous licensee and as such the defendant violated no duty owing to him. It points out that Schurko did not in fact have an office in the building. (He was to move in later although McKown did not know this.) But this cannot make McKown a trespasser if he had every reason to believe Schurko actually was in the building. There would be no occasion for McKown to conclude that the telephone company and Schurko, together with Demmler, were in conspiracy to deceive him as to the whereabouts of Schurko. McKown was not a trespasser. He was legitimately on the premises, not only for the purpose of seeing Schurko but also to look over the building itself since he intended to solicit work in connection with the remodeling of the building by Hende-Jon Furniture Showrooms, Inc. As a business visitor McKown had the right to expect that he would not be injured as a result of affirmative negligence on the part of the defendant. 479 The defendant knew of latent defects in the Demmler Building but made no effort to warn lawful visitors of what to expect. In that failure it was liable for injuries resulting from those defects. (Matthews v. Spiegel, 385 Pa. 203.) The defendant urges that by proceeding forward in a dim light McKown was guilty of contributory negligence. What McKown did was not so opposed to common prudence that he could be declared guilty of contributory negligence as a matter of law. It is true that a more cautious person might have hesitated to go forward when he was not absolutely positive of what lay ahead or beneath his feet. On the other hand if all mankind depended on those who ask for a guarantee of security with each footstep, there would be little progress in the world. There is scarcely a task that does not present some obstacle to overcome and some darkness to penetrate. The darkness here was not so engulfing as to command immobility. McKown was reasonably justified in assuming that, with care appropriate to the circumstances, he could reach his destination without mishap. Whether his boldness exceeded good judgment was a matter of determination by the jury. In Slobodzian v. Beighley, 401 Pa. 520, this Court stated: "`The question of Plaintiff's contributory negligence was undoubtedly for the jury. There is a multitude of cases of this type to be found in the reports, but they necessarily depend largely upon their individual facts. However, analysis would seem to justify their classification into two groups. There are those in which a person wanders around in a place absolutely dark and where, though not a trespasser, there is no reasonable necessity for his presence. In such cases recovery is denied. . . There are other cases where there is some fairly compelling reason for walking in a place which, though dark, is not utterly devoid of light. Under such circumstances, contributory negligence will not be declared 480 as a matter of law . . . It may be stated, therefore, that the controlling factors in determining the question of contributory negligence in accident cases of this nature are the degree of darkness and the justification for the injured person's presence in the place of danger.'" In the case of Falen v. Monessen Amusement Co., 363 Pa. 168, 171, where the facts were not wholly dissimilar from the ones in the case at bar, we said: "Between light and darkness there are varying degrees or shades of light whereunder a question of contributory negligence, because of a failure to see distinctly, necessarily becomes a matter for a jury to determine. . . . Here, the jury was warranted in finding that, while the light was sufficient to enable Mrs. Falen to see, and that she did see, it was also so dim as to deceive her into mistaking the top of the retaining wall for the curb of the sidewalk. . . . Under the evidence in the case, the jury was justified in finding that Mrs. Falen had a `fairly compelling reason for walking in a place which, though dark, [was] not utterly devoid of light'." The facts, as revealed by the printed record, negative any conclusion that McKown blindly plunged forward in darkness. He proceeded carefully but he was deceived as to the configuration of the platform on which he trod. Chief Justice MAXEY, in addressing himself to a situation of this kind, declared in Bailey v. Alexander Realty Co., 342 Pa. 362, 368: "If in semidarkness he uses his sense of sight as carefully as he can and reasonably believes he can `see his way' and if his sense of sight deceives him, he may or may not be guilty of negligence and the question will be for the jury." Motion for a New Trial At the time of the accident which is the subject of this lawsuit, Louis F. Demmler was president of Demmler 481 Properties, Inc. When he was called to the witness stand, the trial judge hailed him familiarly by his first name, declaring "How are you, Lou?" He then turned to the jury and said, undoubtedly radiantly: "Ladies and Gentlemen, Mr. Demmler and I are very old friends. We have officiated together at many a football game, many a game." This warm amiable exchange, in full view of the jury, between a party in the case and the trial judge, was as unfortunate as it was inevitable. This Court, or, at any rate the writer of this Opinion, can take judicial notice of the fact that the trial judge who, in addition to being a veteran able judge, has been an equally able Congressman and football referee, is a person of impulsive and ebullient friendliness. Having known Louis Demmler in sports, where the feeling of camaraderie which develops is almost equivalent in intensity to that which is engendered between comrades in war, it was almost impossible for the judge not to have effusively greeted his football companion with whom he had refereed many an exciting gridiron clash. The judge, however, later realized that his demonstration of affable comradeship in court might cause jurors to don the same cloak of fellowship toward Mr. Demmler and thereby moderate their judgment with regard to his answerability in the lawsuit of which he was the defendant. This, the judge reflected, might tilt the scales of justice unfairly and so he attempted to correct his error, and, characteristically, although he was unaware of what he was doing, he re-emphasized the friendly relationship and, therefore, this time, practically upset the scales of balance. He said to the jury: "I referred in the case that Lou Demmler was an old friend of mine, which he is, but don't use any friendship, don't measure anything by the fact that the court related that fact to you. Decide it on the 482 law and the evidence, and that alone, without sympathy or prejudice or bias entering into this case at all." This re-strumming on the guitar of "An old friend of mine" could not but reaffirm, in the minds of the jury, the depth of esteem existing between the defendant football referee and the judicial football referee. As a consequence, justice suffered a setback. After it was all over, the judge, also characteristically, admitted the harm he had unintentionally caused the plaintiff and ordered a new trial. Under the law and all the rules of the game, the new trial was justified. Some doubt has arisen as to whether the order for a new trial is for the ascertainment of damages only or whether it is to be a new trial generally. The latter is true. Affirmed. Mr. Justice EAGEN concurs in the result. Mr. Justice JONES dissents. NOTES [*] He also included as defendants, Hende-Jon Furniture Showrooms and John Schurko but they were absolved of fault by the jury and, therefore, do not figure in the appeal.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518698/	206 Pa. Super. 539 (1965) Commonwealth v. Pincavitch, Appellant. Superior Court of Pennsylvania. Argued September 16, 1965. November 10, 1965. 540 Before ERVIN, P.J., WRIGHT, WATKINS, MONTGOMERY, JACOBS, and HOFFMAN, JJ. (FLOOD, J., absent). 541 Joseph F. Keener, Jr., with him Henderson, Wetherill & O'Hey, for appellant. Richard A. Devlin, Assistant District Attorney, with him George W. Tracy, Assistant District Attorney, and Richard S. Lowe, District Attorney, for Commonwealth, appellee. OPINION BY MONTGOMERY, J., November 10, 1965: This is an appeal from a judgment of sentence following a verdict of guilty by a jury on charges of burglary and larceny, and the denial of motions in arrest of judgment and for a new trial. The basis for this appeal, and the motions above recited, concerns the circumstances of appellant's arrest, which he contends was unlawful, as well as the search of his person following his arrest and the seizure of articles, all of which were offered in evidence after his pretrial application for suppression had been refused. Under Pa. Crim. R. 2001(e) (1), the factual averments of an application for the suppression of evidence which are not specifically denied by answer are to be taken as true. Since no answer was filed in the present case the issue before us may be decided on the basis of the application which leaves no material issue of fact in dispute requiring other evidence. The application recited that the defendant therein, Robert M. Pincavitch, was held on a charge of burglary, larceny, and receiving stolen goods in connection with a burglary at the Brown Derby Bar in Conshohocken, 542 Pennsylvania, on January 2, 1965, following an arrest at 3:30 a.m. on that day on a charge of violating the Act of June 24, 1939, P.L. 872, § 675.1, as amended, 18 P.S. § 4675.1, a summary offense[1] prohibiting the purchase, consumption, possession or transportation of alcohol, liquor or malt or brewed beverages by a minor. The arrest on this summary offense without seeing it committed was made without a warrant and only because the arresting officer smelled the odor of alcohol on the breath of the defendant. After his arrest the defendant was searched and $36 in bills and change were removed from his possession, his clothes were taken from him and particles of glass were procured from them. The application to suppress was dismissed without an opinion and subsequently the evidence was admitted at the trial. Its admission was justified by the trial judge, Hon. ROBERT W. HONEYMAN, on the basis that the search of defendant was legal as incidental to his lawful arrest. He found the arrest to be legal, although made without a warrant, because defendant's actions constituted a breach of the peace committed in the presence of the arresting officer, or such an act for which a borough policeman may make an arrest under Section 1125 of The Borough Code of May 14, 1927, P.L. 519, as amended, 53 P.S. § 46125. This section provides that such a policeman may arrest persons for "breach of the peace, vagrancy, riotous or disorderly conduct or drunkenness, or who may be engaged in the commission of any unlawful act tending to imperil the personal security or endanger the property of the citizens, or for violating any ordinance of the borough. . ." The undenied averments of the application fail to justify an arrest for any of the reasons assigned by 543 Judge HONEYMAN. Walking on the street at three o'clock in the morning with the odor of liquor on one's breath does not constitute drunkenness, breach of the peace, vagrancy or riotous or disorderly conduct, nor does it constitute an offense committed in the officer's presence under the act forbidding minors to consume alcoholic or malt beverages. Even if we consider the testimony given at the hearing on the application for suppression before Hon. DAVID E. GROSHENS and the testimony taken before President Judge E. ARNOLD FORREST in support of defendant's prior petition for a writ of habeas corpus, which was made part of the suppression record, we find nothing additional to justify defendant's arrest. The only additional fact deserving mention is that the police officer had learned from a passing motorist that the breaking of glass had been heard in the general area in which the officer had twice seen defendant on the street earlier that morning.[2] On investigation this officer had determined that the window in the Bankers Bar had been broken but no entry made. No felony was indicated and nothing was evident to associate defendant with the incident except his presence on the same street a block or more away from the bar. The fact that defendant was a parolee is not a consideration. He had not been declared a parole violator and it is only parole officers who are specifically given the right to arrest parolees without a warrant for visible violations of parole. Act of August 6, 1941, P.L. 861, § 27, 61 P.S. § 331.27. We find no authority for general police officers to do so. Also, the matter of defendant having a piece of concrete in his clothes is beyond consideration since it was not detected until after the arrest. *544 The general rule is, "A peace officer may, without a warrant, arrest for a felony or for a misdemeanor committed in his presence although the right to arrest for a misdemeanor, unless conferred by statute, is restricted to misdemeanors amounting to a breach of the peace." 6 C.J.S. Arrest § 6(a). This is extended to such cases where probable cause exists for believing a person has committed a felony. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), cert. denied, 375, U.S. 910, 84 S. Ct. 204, 11 L. Ed. 2d 149; but we find no authority that justifies an arrest without a warrant for a misdemeanor or summary offense committed beyond the presence of the arresting officer in the absence of a statute giving that right. The application for the suppression and return of the items mentioned therein should have been granted. Therefore, the admission into evidence of those items was erroneous. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). The refusal of the application for suppression is reversed and such application is granted with direction to the District Attorney to return the items of defendant's property seized from him by such illegal search of his person; and it is further ordered that the judgment of sentence is reversed and a new trial is awarded. ERVIN, P.J., and WRIGHT, J., would affirm on the opinion of the court below. NOTES [1] The charge was never formally made against him. [2] The officer made no effort to accost or arrest defendant on these occasions.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518695/	419 Pa. 342 (1965) Blockinger v. Schweitzer, Appellant. Supreme Court of Pennsylvania. Argued October 8, 1965. November 9, 1965. Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ. 343 T.J. Reinstadtler, with him Frederick N. Egler, and Reed, Egler, McGregor & Reinstadtler, for appellant. Homer W. King, with him Francis V. Sabino and Edward J. Lesko, for appellees. OPINION BY MR. JUSTICE MUSMANNO, November 9, 1965: On August 15, 1958, at about 8 p.m., the plaintiffs in this case, Alma L. Blockinger and Marie E. Blockinger, were riding in a car proceeding westwardly on Route 51 in Pittsburgh. This highway, which consists of four lanes, is separated in the center by a medial strip 8 inches high, thus clearly separating, by a physical barrier, the eastbound traffic from the westbound traffic. The defendant, Clarence J. Schweitzer, was driving, at the time indicated, a Pontiac station wagon in an eastwardly direction on that highway. Suddenly and without warning to those on the other side of the road, he leaped the medial strip, crashed head on into the Blockinger automobile, caromed away and struck a truck in the rear, and then, like a wildly charging bull, returned to gore the Blockinger car again, following which he went on to smash into a third vehicle. 344 In the lawsuit which inevitably followed, the defendant attempted to excuse his turbulent conduct by saying that his car skidded. There was a time when the word "skidding" was a magic word and its mere pronouncement exonerated the driver of the skidding car from responsibility for the accident of which he was the author. That strange doctrine is now happily sepulchered for good.[] The motorist who says that skidding caused his car to be operated in a wrong direction on that part of the highway where he has no right to be at all must show that he was as innocent of fault as a child riding a tricycle on the sidewalk outside the Sunday School from which he has just emerged. The explanation of the defendant as to why he jumped the eight-inch medial barrier, even accepted in the light most favorable to his point of view, still leaves a great deal to be desired in establishing absence of negligence. He says that while driving 35 miles per hour on Route 51 in the inner or faster lane, a car on the outer or slower lane cut in ahead of him and, in the application of his brakes to avoid striking that car, he skidded. Since the accident happened in an area absolutely prohibited to him, he had the burden of proof of showing that he got there through no negligence of his own. The traffic situation on the highway at that hour was such that he could well have anticipated the possibility of someone trying to get into the accelerated line of travel. The slower lane had been held up for some unexplained reason and cars had been "backed up" for a quarter of a mile. It is common knowledge that motorists compelled to travel at a turtle's crawl in their own lane will, when they see the slightest empty space in the other lane, attempt a rabbit's leap to that lane in order to escape from their seemingly unending misery. 345 The courts can take judicial notice of the fact that the American motorist, generally speaking, is impulsive, impatient, impetuous and, under certain conditions, impossible. To gain a minute's time he may imperil the lifetime of others, with himself in the bargain. Thus, where there is a tedious delay in one lane of travel, those in the other more rapidly-moving lane must be on the alert against the imprisoned motorist making a rapid maneuver to escape from his asphalt prison. Zigzagging, rabbit lurches, sudden bursts of speed are all to be expected from the headlong motorist determined to gain that one minute which, he believes, will achieve for him an earlier dinner, a quicker approach to the consoling beverage, or the advantage of an earlier arrival than his rival at a common rendezvous. While no motorist has to expect what is beyond the ken of human experience, the defendant here, in view of the unusual circumstances of the held-up line, could not exclude the happening of what took place. It was his duty, therefore, to have his car under control so that he could slow down or even stop to avoid colliding with the headlong rabbit driver. If he had had his station wagon under control, was not driving at an excessive speed, and observing the rules of the road generally, he would not have skidded. The road was dry, the weather clear, it was summertime. The trial judge believed, after hearing the evidence and observing the witnesses, that a verdict for the plaintiffs would be inevitable. When the verdict, instead, came back in favor of the defendants, he ordered a new trial because he believed that somewhere along the line, inexplicable chance had skidded into justice. He used his best discretion in reaching this conclusion and we find that he did not abuse it in doing so. Orders affirmed. Mr. Justice COHEN and Mr. Justice EAGEN concur in the result. 346 DISSENTING OPINION BY MR. CHIEF JUSTICE BELL: The questions involved were purely factual jury questions; the verdict for defendant was not against the weight of the evidence and there was no error of law or any adequate justification for a new trial. For these reasons, I dissent. Mr. Justice JONES and Mr. Justice ROBERTS join in this Dissenting Opinion. NOTES [] Campbell v. Fiorot, 411 Pa. 157.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518689/	240 Md. 317 (1965) 214 A.2d 146 DEEN, ET AL. v. BALTIMORE GAS AND ELECTRIC COMPANY [No. 264, September Term, 1965.] Court of Appeals of Maryland. Decided November 11, 1965. The cause was argued before PRESCOTT, C.J., and HAMMOND, HORNEY, MARBURY and OPPENHEIMER, JJ. Richard A. Reid, with whom were Royston, Mueller, Thomas & McLean on the brief, for appellants. James H. Cook, with whom were William Baxter and Paul S. Clarkson on the brief, for appellee. Brief Amicus Curiae filed by Baltimore County, Maryland. E. Scott Moore, County Solicitor, Walter R. Haile, Deputy 321 County Solicitor and Harris James George, Assistant County Solicitor, on the brief. MARBURY, J., delivered the opinion of the Court. The issue involved in this case is whether or not the Baltimore Gas and Electric Company, appellee, will be allowed to place its 115,000 volt (115-kv) transmission line above ground on dodecahedral steel poles throughout its right-of-way from Summerfield to the East Towson substation in Baltimore County. The right-of-way runs for a distance of 5.1 miles and is, with a few exceptions, that property formerly used by the Maryland and Pennsylvania Railroad. Under the zoning ordinances of Baltimore County the Company was required to apply for a special exception in order to construct its high voltage transmission lines above ground. No special exception was needed to place such lines below the surface of the ground. Pursuant to the Baltimore County Zoning Regulations, the Company filed a petition for a special exception with the County Zoning Commissioner in November 1962 asking for a special exception to permit construction of the lines above ground along the entire right-of-way. The appellants herein, and the protestants before the Zoning Commissioner, are owners of property along the five mile right-of-way. These property owners admit that the new line is needed in order to adequately supply the electric power needs of this part of Baltimore County. They maintain that the transmission lines should be placed underground because the proposed above ground structures would decrease property values inasmuch as they would be unsightly and also would be inimical to the health and safety of those who live nearby or who would travel on the highways over which the lines would be strung. On the other hand, the Company does not want to be required to construct the lines underground because underground construction is a great deal more expensive and in turn would have to be reflected in their consumer rates. The right-of-way over which the Company proposed to place the transmission lines can be conveniently divided into three sections. The first section is from the East Towson substation 322 easterly to Lot 34, Section 2 in the Cromwell Heights development. This section is within the Metropolitan District of Baltimore County, which is a term used to describe the area of the county serviced by sewer and water. In order for a public utility to obtain a special exception within the Metropolitan District, the Zoning Regulations require that Section 502, and the additional provisions of Section 411, must be met. Within this first section the right-of-way runs for a distance of 5,385.6 feet and the proposed high tension lines would cross Goucher Boulevard and Joppa Road, which are heavily traveled highways; would pass through a heavily built-up residential section of Towson; and also through areas which are zoned M.L. for light manufacturing. The second segment of this right-of-way for which a special exception was requested runs from Lot 34 in Cromwell Heights easterly and then northerly to the easternmost terminus of the Metropolitan District line. It is 6,177.6 feet in length; would cross over both the Loch Raven Boulevard and the Baltimore County Beltway; and would pass through a suburban area. The entire length of this second segment lies within the Metropolitan District. The third section, over which the proposed transmission lines would run, extends from the Metropolitan District line northerly to Summerfield, a distance of 15,364.8 feet. At Summerfield the Company's plan is for the transmission line to connect with a ring line, which is somewhat of an electric power beltway encircling Baltimore City some ten to fifteen miles in radius from the center of the City, a part of which is in Baltimore County. This last segment of the proposed line runs through an area which is presently rural. After a hearing, the Zoning Commissioner authorized the special exception the Company requested for the area outside the Metropolitan District, i.e., that area described as section three above. Within the Metropolitan District the Commissioner ordered that the transmission lines be placed underground "excluding that portion of the right-of-way in Towson, subject to the Redevelopment and Rehabilitation Commission (approximately 370 feet) and excluding the Manufacturing Zone, * * ." The Company appealed so much of the Zoning Commissioner's 323 decision as required it to place any of its transmission lines underground to the County Board of Appeals of Baltimore County, and pursuant to Section 501.6 of the Zoning Regulations a hearing was held de novo. After the hearing, which lasted six days and involved a transcript of 844 pages and nearly 100 exhibits, the Board concluded that a special exception should be granted for the overhead lines along the Company's entire right-of-way except that portion which was from Lot 34 in Cromwell Heights to the East Towson substation, excluding the portions thereof which were zoned for manufacturing. From the Board's decision the Company filed an appeal to the Circuit Court for Baltimore County from that portion of the order which denied the special exception for above ground construction in that area where it ordered the lines to be placed underground, and a cross appeal was filed by the protestants from so much of that order which allowed any of the wires to be strung above ground. In the Circuit Court, Judge Menchine fully reviewed the entire record, together with memoranda filed on behalf of the respective parties and heard argument of counsel on both sides. He held that the finding of facts by the Board did not support its conclusions of law in regard to that portion of its decision which required the transmission lines to be placed underground, and as a result he ordered that the case be remanded to the Board for the passage of an appropriate order granting the special exception for the construction of the power line upon dodecahedral steel poles for the entire length of the route covered by the Company's petition. The protestants then noted this appeal. I First to be considered on this appeal is whether or not the Circuit Court was correct in reversing that portion of the Board's order which required the transmission lines to be placed underground from Lot 34 in Cromwell Heights to the East Towson substation, except in manufacturing zones. In regard to that portion of the Board's order, Judge Menchine held that its findings of fact did not support its conclusions of law and thus the decision was arbitrary and capricious in a legal sense, relying upon Montgomery Co. v. Merlands Club, 202 Md. 324 279, 96 A.2d 261. In fairness to the lower court, it should be pointed out that clarity and internal consistency were not conspicuous attributes of the Board's written opinion. However, a reading of that entire opinion makes it apparent to us that the Board adopted for its findings of fact the testimony of Mr. Gavrelis, Director of Planning for Baltimore County, which was supported by that of a real estate expert. Their testimony clearly supported the Board's conclusion of law and for this reason such a conclusion was not arbitrary or capricious. Although Mr. Gavrelis' testimony was not specifically adopted by the Board, we feel that the Circuit Court, in its review of the decision of this quasi legislative body, should have concerned itself with the question considered in Board v. Meltzer, 239 Md. 144, 153, 210 A.2d 505, and not with the question of whether the reasons set out in the opinion supported the conclusions of law drawn therefrom. In Meltzer we found the test to be: "whether a reasoning mind could reasonably have reached, after a fair consideration of the entire record, the conclusion that the Council [Board] did, or, in other words, was its action clearly erroneous and therefore not fairly debatable." Thus, the court should have looked at all the facts to see if the conclusion reached by the Board was justified. Section 411.3 of the Baltimore County Zoning Regulations specifically sets out the seven factors which are proper for the Board's consideration in determining whether transmission lines carrying more than 35,000 volts shall be placed underground. Section 411.3 a (7) states as one of these factors to be considered: "Any other matter or thing deemed by him [Zoning Commissioner] or them [Board] to be material in connection with the public health, safety or general welfare." The Planning Commission report, introduced into evidence by the testimony of Mr. Gavrelis, used the following language in reference to that part of the right-of-way which the Board ordered underground: "A 100 foot setback is sought between any new residential improvement in new developments and the edge of a high voltage transmission line right of way. Although arbitrary, the extra setback attempts to temper any adverse effect of the power line by extra 325 distance. Examination of land use data indicates that all of the houses on the north side of Brook Road in the Greenbrier Subdivisions do not conform to this standard nor do all of the dwellings in the Cromwell Heights Subdivision. The Planning staff recommends therefore, that in order best to comply with the health, safety or general welfare that that portion of the transmission lines westerly from a point more or less at Lot 34, Section 2 Cromwell Heights, be placed underground to the terminus in East Towson." As to the relationship between safety and the 100 feet setback requirement, Mr. Gavrelis testified that the 100 feet zone was established to insure against the possibility of home damage in the event one of the poles carrying high tension wires should fall. The proposed poles will vary in height from 60 to 90 feet and will have crossarms extending 11 feet. The uncontroverted evidence before the Board indicated that high voltage lines have, on occasion, come down in other parts of the country. When the lines fall they remain energized for a fraction of a second after they strike the ground and could thus start a fire if they should come in contact with a combustible substance. In addition, it was undisputed that lines similar to the proposed ones have sagged in close proximity to the ground as the result of an accumulation of ice, snow or sleet, or as the result of a defective tower. Under such circumstances the circuit breakers would not work, since the line would not be grounded, and would thus present a hazard to any person coming in contact therewith. Given the height of the proposed poles, and the chance that falling lines could start a fire which might spread to homes, we think that a reasoning mind could have found a substantial connection between the 100 feet setback requirement and the health, safety and welfare of the people living in close proximity to the high tension wires. The Board was duty bound to consider this factor of safety in determining whether to grant a special exception. In addition to his testimony as to safety, Mr. Gavrelis testified that the presence of above ground high tension wires has a tendency to decrease property values in residential areas. As a planning expert Mr. Gavrelis opined that the 100 feet setback requirement minimized 326 the deflating effect which above ground high tension wires has on land values. Such economic consequences were properly considered by the Board pursuant to Section 411.3 a (6). Besides Mr. Gavrelis, other witnesses, including Hugh E. Gelston, a real estate expert, testified before the Board that in their opinion high tension wires in this area would adversely affect property values. To rebut this, the Company produced Mr. Magee and Mr. Heinmuller, both expert real estate appraisers, who testified that in their opinions overhead lines do not have an adverse effect on property values. Because of the evidence as to safety, coupled with the conclusions which reasonable men could have gleaned from the conflicting testimony as to the effect of high tension wires on nearby property values, we conclude that under the test used in Meltzer, the Board was not clearly erroneous when, pursuant to the authority given the Board under Section 411.3, it ordered these high tension wires underground. For that reason this portion of the Board's findings we consider to be supported by competent, material and substantial evidence upon the whole record, and, therefore, was not arbitrary and capricious. II The protestants next contend that within the manufacturing zones lying between Lot 34, Cromwell Heights and the East Towson substation, the Board should have ordered the lines to be placed underground. Why the Board did not so order becomes apparent from the clear language of Section 411.3: "Electric light and power transmission lines carrying more than 35,000 volts shall be governed by the following principles, standards, rules, conditions and safeguards (in addition to the aforegoing): "a. For the purposes of the control of the location and construction of such electric light and power transmission lines, there is hereby created an additional zone which shall conform to the present or future boundaries of the Metropolitan District of Baltimore County and be known as the Metropolitan Zone. Within the said Metropolitan Zone, but excluding Manufacturing Zones therein, the Zoning Commissioner or the 327 County Board of Appeals, upon appeal, shall have the power to require that such electric light and power transmission lines or portions thereof be located underground in cables or conduits. "In the exercise of such power, the Zoning Commissioner and the County Board of Appeals, upon appeal, shall consider and be guided by the following factors and standards:" (Emphasis supplied.) Then follows the list of the seven considerations previously referred to in this opinion. From the above language it would seem that the Board was given no power to order a public utility to place its high tension wires underground within that part of the Metropolitan District which is zoned for manufacturing. To circumvent this section of the Zoning Regulations, appellants cite Section 255.1 of those regulations dealing with manufacturing zones, which reads in pertinent part as follows: "M.L. Zone Manufacturing, Light "Whenever an M.L. Zone abuts or lies across the street from a residential zone * * * the use, height, and area regulations applicable to any part of the M.L. Zone which is within 100 feet of said residential zone * * * shall be those listed in Sections * * * 243 of these regulations. * * " Section 243.4 of the Zoning Regulations states: "Proximity of Structures to Residential Zones No building or other structure shall be closer than 125 feet at any point to the nearest boundary line of a residential zone." Appellants' position is that these sections read together impose a 100 to 125 feet (depending on how one interprets the statute) buffer zone between residential and manufacturing areas in which no public utility poles may be constructed because such poles fit within the definition of "structure." Appellants assert that these regulations as applied to the instant case preclude above ground construction in the manufacturing zones of the Cromwell Heights to Towson substation portion of the 328 right-of-way because in this area there is never the supposedly requisite 100 or 125 feet buffer. By construing the regulations in this manner the appellants lose sight of the fact that the regulations referred to were designed to protect the adjacent residential areas from being in close proximity to manufacturing-type buildings, or, in other words, uses which are normally permitted only in manufacturing zones of the Metropolitan District. To apply these area regulations in the manufacturing zones to structures such as utility poles which are permitted uses, by special exception, in residential areas cannot be sensibly supported, as will be demonstrated below. It is admitted by the appellants that the proposed 115-kv overhead line is a permitted use, by special exception, in all residential zones traversed by the line en route to and through a manufacturing zone. Obviously, as the line approaches the manufacturing zone, the engineering design of the line might well require that a pole be erected on residentially zoned land within 10 or 15 feet of an adjacent manufacturing zone boundary. There can be no logical justification for requiring the next pole, which would be in the manufacturing zone, to be set back a specific distance from the adjacent residential zone from which and through which the poles have been placed. Such an anomalous result could not have been intended by the legislative body which specifically withheld from the County Board of Appeals the power to order that transmission lines through manufacturing districts be placed underground. Since both Sections 255.1 and 243.4 appear under the title "Manufacturing," we feel justified in avoiding the anomaly which arises from the appellants' construction by finding that the legislative intent was to require that manufacturing buildings or structures be set back 100 or 125 feet for the benefit of adjacent residential property owners. Thus, Section 243.4 should be construed in a situation such as that which presents itself in the instant case as meaning: "* * * No [manufacturing] building or other [manufacturing] structure shall be closer than 125 feet at any point to the nearest boundary line of a residential zone." Such a construction gives a logical meaning to all of the cited sections when construed together and we therefore adopt it. Since utility poles are not in a true sense manufacturing 329 structures, we conclude the Board was correct in not ordering underground high voltage transmission lines which pass through manufacturing zones within the Cromwell Heights to East Towson substation portion of the Company's right-of-way. III We now consider that portion of the Company's right-of-way which lies within the Metropolitan Zone and which both the Board and the Circuit Court agreed should be constructed above ground, i.e., from Cromwell Heights to the easternmost terminus of the Metropolitan line. The Board, appellants contend, "ignored the importance of Section 411.3 a (1)" which lists for consideration in the grant of a special exception for above ground high tension wires "the crossing of much traveled highways or streets." Within this portion of the Company's right-of-way this factor is said to be of significance since the line will cross "two of the most heavily traveled highways or streets in Baltimore County" (Baltimore County Beltway and Loch Raven Boulevard). The appellants argue that the failure of the Board to give effect to this factor makes the Board's grant of a special exception arbitrary and capricious and that its affirmance, by the Circuit Court on appeal, constituted reversible error. In regard to this consideration the Board stated as its finding of fact: "There is no serious problem involving the crossing of much traveled highways or streets with the exception of the crossing of the major highways at or near the intersection of the Beltway and Loch Raven Boulevard, and we are convinced from testimony in this case that the safest and most practical way of crossing these well traveled highways would be overhead, among other reasons, because it was testified that an underground installation crossing these highways would be as much as twenty-eight (28) feet underground which if there were a breakdown or interruption of service would cause a serious disruption of traffic on these highways while repairs were under way, 330 as against the comparative ease of repairing any possible breakdown of overhead lines in the same location." Implicit in the above quoted finding of fact was the conclusion that the relative chance of one of these poles, or of the wires strung on them, falling and injuring a traveler upon the highway was outweighed by the possibility of inconvenience to the general public which might be occasioned by the disruption necessitated in the repairing of underground lines. The Board did not ignore the importance of Section 411.3 a (1) but instead chose to balance that provision against the equally relevant Section 411.3 a (7) (dealing with matters of public health, safety or general welfare) when it considered the disruptive effect a breakdown of the underground voltage line might have on the flow of highway traffic. Except for the argument that the testimony indicated that the cables would be a maximum of 16 to 18 feet underground, instead of 28 feet, we conclude that there was ample evidence in the record to support the Board's finding on this point and the conclusions drawn therefrom. This being the case, the lower court was correct in affirming the Board's grant of a special exception for above ground construction of high voltage lines throughout the Company's right-of-way lying between Cromwell Heights and the easternmost terminus of the Metropolitan line. IV Lastly, appellants contend that the Board's decision that the line be constructed above ground from the Metropolitan District line to Summerfield was arbitrary and capricious. It will be recalled that this portion of the Company's right-of-way traverses an area which is rural and is not serviced by either public sewer or water facilities. Sections 502 and 411.1 of the Zoning Regulations apply to the grant of special exceptions in areas such as this which lie outside the Metropolitan District. Section 502.1 states that a special exception may be granted if the use requested will not "be detrimental to the health, safety, or general welfare of the locality involved." Appellants assert that it was error for the Board to fail to consider the future effects which the high tension wires would have on the 331 health, safety and general welfare of the locality "which could be reasonably anticipated in the normal course of its development." This factor was without relevance in this case, because there was no evidence produced at the hearing which would show that the effect of high tension wires on the future health, safety and welfare of this area would be in any respect different than its effect on any other rural area. Section 502.1 implies that the effect on health, safety or general welfare must be in some sense unique or else a special exception could never be granted in such an area for the above ground location of high tension wires. The only evidence as to future conditions was testimony revealing the possibility of future residential development of this land but such a possibility alone does not come close to showing a future deleterious effect upon the public health, safety or general welfare. The appellant additionally contends that it was arbitrary and capricious for the Board to disregard the serious impairment of the use of neighboring property which would result if the special exception is granted. Although not specifically cited in appellant's brief, such a factor is proper for the Board's consideration under Section 411.1 which states: "The use must be needed for the proper rendition of the public utility service and the location thereof shall not seriously impair the use of neighboring property." In the instant case it was uncontroverted that there is presently a need for a new transmission line to the Towson area and that the proposed line would be less disrupting and less costly than a line constructed elsewhere, since it runs largely along property which was once used as a railroad right-of-way. Moreover, the evidence shows, as found by Judge Menchine in his review of the evidence before the Board, "that the proposed line is of a more harmonious appearance than could be hoped for from any other route, for the reason that, in large part, it lies below the ridge line to the south and is screened from the view of properties lying to the north by trees." While it is true that the appellants did produce an expert, Hugh E. Gelston, who testified that the best use of this rural property would be for prestige type homes in the $50,000 category in acre or half acre lots, and that the proposed above ground power lines would impair such a use; there was no 332 showing that other less pretentious residential uses could not be made of this property. Thus, the Board was not arbitrary and capricious in failing to find that there would be a serious impairment of the use of this land and we, therefore, have no difficulty in concluding that such part of the order of the lower court sustaining the authorization of construction of the transmission line upon dodecahedral poles from the Metropolitan District line to Summerfield was justified. In its brief and oral argument before this Court, the Company sought to raise the issue of whether certain provisions of the Zoning Regulations authorize overhead construction throughout that portion of its route ordered underground by the Board, without the necessity of a special exception therefor. We do not deem it necessary to decide this because the Company did not file a cross appeal from the lower court's grant of a special exception for this area, and thus the question is not properly before us. For the reasons stated such part of the order of the lower court as differs from the order of the Board of Zoning Appeals dated January 14, 1965, will be reversed and the order of the Board will be reinstated. Order of June 17, 1965 reversed in part and modified so as to conform to the order of the County Board of Appeals of Baltimore County, of January 14, 1965, and as modified affirmed. Costs to be paid one-half by each side.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518703/	153 Conn. 134 (1965) LEAH E. CORNELIUSON (BRUNETTE) v. ARTHUR DRUG STORES, INC., ET AL. Supreme Court of Connecticut. Argued October 13, 1965. Decided November 9, 1965. KING, C. J., ALCORN, SHANNON, HOUSE and COTTER, JS. 135 Snow G. Munford, for the appellants (defendants). Robert Y. Pelgrift, for the appellee (plaintiff). HOUSE, J. This action was tried on the count for breach of implied warranty, and it is agreed by the parties that the applicable law is that stated in Crotty v. Shartenberg's-New Haven, Inc., 147 Conn. 460, 467, 162 A.2d 513. The case arose from the plaintiff's use of a hair waving lotion known as Ogilvie Sisters Home Permanent. On January 2, 1958, the plaintiff purchased the lotion from the defendants, and her suit is predicated upon the claim that, as a result of her use of the lotion on January 4, she sustained a severe dermatitis with concomitant physical and 136 neurotic injuries. The jury returned a plaintiff's verdict, which the trial court refused to set aside. The defendants have appealed, assigning as error three rulings on the admissibility of evidence and the denial of their motion to set aside the verdict. In the motion they maintained that the verdict is not supported by the evidence and the law on the issue of liability. In Crotty v. Shartenberg's-New Haven, Inc., supra, we had occasion to consider the development of the law in the field of products liability and analyze the provisions of the Connecticut statute on implied warranties. Cum. Sup. 1955, § 2858d; Rev. 1958, § 42-14 (see General Statutes §§ 42a-2-314, 42a-2-315).[1] In that case, we held (p. 464) that under our statute there may be an implied warranty that the goods sold shall be reasonably fit for a particular purpose, or that the goods shall be of merchantable quality and that the existence, nature and extent of either implied warranty depends on the circumstances of the case. We noted that some jurisdictions hold that if the article sold can be used by a normal person without injury, there is no breach of the implied warranty of reasonable fitness, while others adopt the theory that the seller is not absolved from liability under the implied warranty created by the statute by the mere fact that only a small proportion of those who use the product suffer injuries from its use. We concluded (p. 467) that the term "reasonable fitness" must, of necessity, be considered one of degree and that the term 137 must be "related to the subject of the sale." Rejecting the rule limiting the application of the term "reasonable fitness" to a class or group designated as normal persons, we adopted the test of injurious effect to "an appreciable number of people." We held that not only the causal connection between the product and the injury must be established but also the plaintiff must be a member of a class who would be similarly affected by the product, identifying that class as an appreciable number of people. In the course of the opinion (pp. 467, 468) we used the following language: "To establish a breach of the warranty, the plaintiff must show (1) that the product contains a substance or ingredient which has a tendency to affect injuriously an appreciable number of people, though fewer in number than the number of normal buyers, and (2) that he has, in fact, been injured or harmed by the use of the product.... The burden is on the plaintiff to establish these facts. Proof of the harmful propensities of the substance and that it can affect injuriously an appreciable number of persons is essential to his case.... If a buyer has knowledge, either actual or constructive, that he is allergic to a particular substance and purchases a product which he knows or reasonably should know contains that substance, he cannot recover damages for breach of an implied warranty. Nor can he recover if he suffers harm by reason of his own improper use of the article warranted.... When a manufacturer puts into a product to be sold for human use a substance which has deleterious qualities and a tendency to harm an appreciable number of its users, the manufacturer, and not the user, should shoulder the risk of injurious consequences. The same risk should be borne by the retailer who sells the article 138 to a prospective user who, relying on the retailer, is entitled to believe that the article is reasonably fit for the purpose for which it is sold." It is the contention of the defendants that the words "substance" and "ingredient" as used in defining the rule must be considered in context with the words "product," "article" and "goods," so that the test of injurious tendency is applied to the end product, including, of course, any incorporated substance or ingredient in the strength or quantity used in the product. It seems to be the contention of the plaintiff that, if we consider only the above-quoted portion of the opinion and take those words literally, the test of injurious tendency is to be applied not to the product itself or even to any particular substance or ingredient in the strength or quantity used in the product, but to any substance or ingredient in the product regardless of the strength or quantity used therein. Using the latter interpretation, the plaintiff claims to have satisfied the burden of proof specified in the Crotty case. To examine the evidence in support of the plaintiff's claims is to demonstrate the unreasonableness of her contention. Viewed in the light most favorable to the plaintiff, there was evidence before the jury that all permanent waving lotions, including Ogilvie Sisters, now contain as a principal ingredient ammonium thioglycolate, a chemical compound which varies in degree of alkalinity according to the relative strength of the ammonia. An alkali is an irritant to the skin, depending on the degree of alkalinity. Normally, these permanent waving preparations have a degree of alkalinity which may produce a mild redness of the skin, but, if the lotion should be intensely alkaline, it can do more severe damage to the skin. A 139 chemist who was familiar with all the brands of home permanent waving lotions in the United States market and many in the European market was asked if he had "ever heard of anyone ever being harmed by one of these home permanent solutions" and he answered: "Yes, I have." Dr. Albert Rubin, who treated the plaintiff, testified that in his opinion the plaintiff's contact dermatitis was caused by her using the Ogilvie Sisters lotion and that in the course of his practice he had treated about a dozen patients who reacted in a similar fashion "to the use of home permanents." We must test the evidence in the light most favorable to the plaintiff and, accordingly, for that purpose disregard the weight of all the evidence produced by the defendants as to the safety and low alkalinity of the Ogilvie Sisters product. The considerable evidence produced by the defendants with respect to the safety and low alkalinity of the particular product does, however, highlight the glaring lack of any evidence whatsoever that the Ogilvie Sisters lotion, as chemically compounded, had a tendency to cause harm to an appreciable number of people. Dr. Rubin did not know the strength of the alkalinity of the Ogilvie Sisters lotion and could not recall ever having treated anyone else who had used it, other than the plaintiff. In short, although there was evidence from which the jury could find that the Ogilvie Sisters lotion did cause injury to the plaintiff, there was no evidence from which they could find that this lotion as compounded had a tendency to affect injuriously an appreciable number of people. Proof of both injury to the plaintiff and such injurious tendency are necessary for the plaintiff to prevail. Proof that all permanent waving lotions generally contain 140 certain basic chemicals compounded in varying strengths in the different brands and that in the strength used in some of them the chemicals may injuriously affect some people is not alone a reasonable basis for a conclusion that any specific lotion, even though it contains in some form those same basic chemicals, has the injurious tendency requisite to establish liability and that that lotion is not "reasonably fit" or of "merchantable quality" as those terms are used in the statute (Rev. 1958, § 42-14) on implied warranties. The basic test must be applied to the particular product as compounded, which necessarily includes any incorporated substance or ingredient in the strength and quantity used in the particular product, not in the strength and quantity which such substances or ingredients may be used in some other products. We must conclude, therefore, that the plaintiff has failed to sustain her burden of proving a breach of implied warranty, and the trial court should have granted the defendants' motion to set aside the verdict. Since the case must be remanded for a new trial, it is unnecessary to consider the remaining assignments of error. There is error, the judgment is set aside and a new trial is ordered. In this opinion the other judges concurred. NOTES [1] Section 42-14 is printed in a footnote to the opinion in Crotty v. Shartenberg's-New Haven, Inc., 147 Conn. 460, 462, 162 A.2d 513, and the case itself is exhaustively analyzed in a case note on page 95 of volume 35 of the Connecticut Bar Journal.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518693/	240 Md. 365 (1965) 214 A.2d 326 MOTHERSHEAD, ET AL v. BOARD OF COUNTY COMMISSIONERS OF PRINCE GEORGE'S COUNTY, ET AL. [No. 411, September Term, 1964.] Court of Appeals of Maryland. Decided November 18, 1965. The cause was argued before PRESCOTT, C.J., and HAMMOND, HORNEY, MARBURY and OPPENHEIMER, JJ., and FOSTER and JONES, JJ., Associate Judges of the Eighth Judicial Circuit, specially assigned. Hervey G. Machen for appellants. Harry L. Durity, with whom were Robert B. Mathias and Lionell M. Lockhart, on the brief, for Board of County Commissioners; Bill L. Yoho, with whom were Robert S. Hoyert and Roy W. Hooten, Hoyert & Yoho, on the brief, for Stanley H. Maier, Thomas G. Morgan and Arthur F. Lakin, other appellees. FOSTER, J., by special assignment, delivered the opinion of the Court. The appellants, Andrew A. Mothershead and Andrew O. Mothershead, father and son, contending that their property presently zoned I-1 (light industrial) should be reclassified to I-2 (heavy industrial) so as to permit them to continue to conduct thereon a metal fabricating business, appeal from an order of the Circuit Court for Prince George's County affirming the refusal of the Board of County Commissioners for Prince George's County, sitting as a District Council for the County, to grant the reclassification. They state that the questions presented on this appeal are whether or not the decision of the District Council was fairly debatable and whether or not the zoning ordinance otherwise valid was as applied to their property unreasonable, discriminatory, capricious and arbitrary. 369 The parcel of land for which the rezoning is sought contains 4.002 acres, being the major portion of a 5.035 acre tract owned by the appellants and located in the City of College Park, Prince George's County, Maryland, with a frontage of 68 feet on the south side of Berwyn Road, an easterly border of 539.83 feet lying contiguous to the main line of the Baltimore and Ohio Railroad, a southerly edge abutting property zoned for light industrial use and a westerly side adjacent to lots (zoned R-55, one-family, detached, residential) improved by single family dwellings. A bird's eye view of the vicinity in which the parcel is situated would reveal in every direction an expanse of residentially zoned property with a major railroad line cutting through the middle, north to south, and a principal highway, Greenbelt Road, (a four lane divided highway) running east to west, just south of center. Nestled along the railroad are numerous plots zoned for commercial use and some zoned for light and heavy industrial, but none of those of the heavy industrial category is south of Greenbelt Road which forms a natural barrier, cutting them off from the subject property. The evolution of this pattern is one common to many rural communities where, before the advent of the automobile, the railroad was the only adequate mode of transportation. Businesses tended to cluster by the railroad tracks and remained there while the residences of the commuters sprawled on either side. Upon a portion of the subject property for a span of over forty years Andrew A. Mothershead has operated a retail coal and feed business to which he added during this period a building materials department. Early in 1940, the grade crossing at Berwyn Road and the railroad tracks was closed and a new road with an overpass bridging the track was located somewhat to the north. With the elimination of the crossing and the shutting off of the flow of traffic past the store and other commercial enterprises in the neighborhood, the business activity in the area gradually declined. Then, in 1944, Andrew O. Mothershead, the son, came to work with his father and further additions were made to the business, including the sale and delivery of fuel oil. The growth of this latter adjunct induced the installation of two 20,000 gallon oil storage tanks in August, 1948. Moreover, to meet the demands of their customers and 370 competition, they, in violation of the zoning ordinance, expanded their building supply division in 1957 to include the sale of steel beams which were cut to size pursuant to purchase orders, in some instances welded and delivered. Late in the 1950's the steel fabricating operation was incorporated under the name of College Park Fabricators, Inc. By the fall of 1960, the fabricating business had grown to such an extent that it became desirable to erect a shop to house the operation. An application for the building permit was approved, but subsequently rescinded when it was determined that the fabricating of steel fell within the zoning classification of Industrial 2. There followed, in September 1961, a petition by appellants for a zoning map amendment as to the 4.002 acres from I-1 to I-2. An investigation of this petition was undertaken by the Technical Staff of the Maryland National Capital Park and Planning Commission which recommended that the request for I-2 classification be denied. The Planning Board of the Maryland National Capital Park and Planning Commission, thereafter, contrary to their Technical Staff's conclusion, suggested that the petition be approved. A public hearing before the Board of County Commissioners of Prince George's County, sitting as a District Council, was then held in January 1962. After receiving all the evidence, the District Council denied the petition. The appellants sought review of the District Council's action in the Circuit Court for Prince George's County, Maryland, which affirmed, through Judge Loveless, the action of the District Council on the grounds that the conclusions from the evidence were fairly debatable and the Court could not substitute its judgment for that of the legislative body. Stanley H. Maier, Thomas G. Morgan, and Arthur F. Larkin were parties to the proceedings by virtue of their Motion for Leave to Intervene made and granted on July 12, 1962. The subject property, leased to the corporate manufacturer at the time the change in zoning was sought, was I-1 by virtue of the northern portion thereof having been so classified pursuant to the comprehensive zoning map of the county adopted in 1949 and the southern portion pursuant to petition No. A-1787 approved November 21, 1951. However, it should be noted that a part of the northern sector, running through the 371 center of the tract and originally zoned C-2, was placed in the Industrial E zone under petition No. 760, approved June 25, 1946, prior to being included in the I-1 zone established through the 1949 map. The land along Berwyn Road where the store and office are located and running for a distance of about 200 feet toward the rear of the property, or southerly, (not included in the petition for reclassification) is zoned C-2 (general commercial). The somewhat diffuse attack of the appellants under the initial question posed by them has as its first prong the contention that they did present substantial evidence to the District Council that reclassification was in the public interest and that such evidence is all that is required to sustain their position. They cite Board v. Oak Hill Farms, 232 Md. 274, 192 A.2d 761, and quote from the opinion by Judge Hammond to the effect that where the testimony of experts in behalf of the applicants for change, to which no answer was given by the objectors, left no doubt that the public interests (as well as that of the owners of the land) would be best served by the rezoning, the petition should be granted. This placing by the appellants of reliance solely on the strength of their case and the citing of Oak Hill Farms, supra, as authority for justification in so doing cannot carry them successfully forward to a reversal here. Oak Hill Farms, supra, the only authority quoted by appellants for this first proposition, carefully points out that there was "no" answer by the objectors to the expert testimony, which absence decisively distinguishes it from the case before us where many answers are made. The test is not whether the appellants adduced substantial evidence on behalf of their request for the change, but rather whether or not all the evidence made the issues fairly debatable, there being no denial that appellees did produce evidence in opposition to the rezoning. Quite contrary to appellants' view of Oak Hill Farms, supra, the Court concluded at p. 283 that: " * * the courts have exercised restraint so as not to substitute their judgments for that of the agency and not to choose between equally permissible inferences or make independent determinations of fact, because to do so would be exercising a non-judicial role. 372 Rather, they have attempted to decide whether a reasoning mind could reasonably have reached the result the agency reached upon a fair consideration of the fact picture painted by the entire record. In the cases dealing with consideration of the weight of the evidence, the matter seems to have come down to whether, all that was before the agency considered, its action was clearly erroneous or, to use the phrase which has become standard in Maryland zoning cases, not fairly debatable." When commenting on Oak Hill Farms, supra, in MacDonald v. County Board, 238 Md. 549, 210 A.2d 325, the Court said that it affirmed the order of the lower court, in Oak Hill Farms, supra, reversing the Council's action denying the petition because it found that there was no evidence to support the Council's order. The proper question then is whether there was sufficient evidence to support the District Council's decision. We think there was. After their original thrust, the appellants turn to a broader front and take up the subjects of error in original comprehensive zoning or change in conditions so as to warrant rezoning. However, they very frankly admit that "[t]he record clearly shows by competent evidence of mistake and change the only possible creditable evidence submitted in opposition to the request for rezoning would be contained in the staff report and the testimony of Bernard M. Willemain, an expert called by the appellees." The Technical Staff reported that the comprehensive zoning was "based upon the existing industrial uses, the relationship of available vacant land to the railroad and to the location and extent of existing residential areas"; that "industrial areas were located to minimize any adverse effect upon the existing residential development adjacent thereto"; that heavy industrial zoning was located north of Greenbelt Road; that on the west side of the railroad (appellants' side) heavy industrial development has been limited by public opposition and by the construction of single family dwellings; that the 1948 plan and the 1949 zoning map showed a consistent application and use of the I-1 and I-2 zones of lands adjacent to the railroad and both indicate that the application of the two classifications 373 were reasonable and took into consideration the existing conditions prevailing; that in 1947 and 1948 any tract of land located between the railroad and an existing subdivision was recommended for inclusion in I-1 zoning since it was thought that this was more compatible with residential areas than I-2; that in 1948 homes were being constructed and occupied on lots immediately adjacent to the west of the subject property; that although appellants have expanded their businesses the residential area to the west and south has continued to develop; that no pronounced trend in the neighborhood indicated decay or transition which would justify reclassification; that the original zoning (1949) was not in error; and that the rezoning, if granted, would be spot zoning. Mr. Bernard T. Willemain, a city planner, appeared as a witness for the Mayor and City Council of College Park at the proceedings before the District Council. He testified that there were no changes in circumstances which would warrant the reclassification requested. In his opinion the appellants were engaged in retailing, not refining or wholesale storage of fuel oil, which only required I-1 zoning for fuel oil storage. The only significant change in the area, he said, was the reclassification from residential to light industrial of nearby property. Of particular importance, he reported that the only heavy industry in the area was over half a mile away, set apart by an effective barrier, Greenbelt Road. These facts do not leave us with the negative feeling that they are mere "possible creditable evidence," but rather they seem quite substantial, sufficient to make the issue of mistake or change fairly debatable. Appellants, while conceding that there can be no conditional zoning, continue to urge that they should be granted I-2 zoning on equitable grounds because in their opinion the fabrication of steel is not nearly as offensive as are most other uses permitted under an I-2 classification. They attack the court's decision on the ground that there was a mistake when their property was classified for the 1949 map and claim that changes in the area have taken place since that date. On the point of mistake, they rely on the contention that the property at the time of the adoption of the 1949 map was actually burdened 374 by an I-2 use and therefore should have been so classified then. There are several answers to this. First, there is a strong presumption of the correctness of the comprehensive rezoning; secondly, there is considerable doubt that the retail sale of fuel oil requires an I-2 classification; and thirdly, even assuming that the fuel oil business requires I-2 zoning there is no evidence that the existence of such business when the 1949 map was adopted would have brought about an I-2 classification for the entire 4.002 acres or even a part thereof. In Reese v. Mandel, 224 Md. 121, 167 A.2d 111, at p. 128, this Court said: "In testing the action of the Board of Appeals herein, we start off with a strong presumption of the validity of the classifications made when the comprehensive map was adopted." Also, see MacDonald v. County Board, supra, and Miller v. Abrahams, 239 Md. 263, 211 A.2d 309. When the studies, under the supervision of Mr. Fred W. Tuemmler, who was Director of Planning for the Maryland National Capital Park and Planning Commission, from 1941 to 1952, were made in preparation of the zoning ordinance that was ultimately adopted in November, 1949, the center section of appellants' property was zoned Industrial E (the sole industrial classification then in existence) and the two 20,000 gallon oil storage tanks had not then been installed. Between the time of the studies and the adoption of the 1949 map a permit was obtained for the installation of the tanks and their erection above ground was completed. Appellants argue that if the Park and Planning Commission had known of the existence of the tanks they would have recommended placing the property in the I-2 classification. This is only speculation. Although there was testimony that the Commission sought to avoid recognizing non-conforming uses, there is no evidence in the record that one might not have been recognized here, if it were actually required. And so, even though Tuemmler, as Director of Planning, might have opposed a non-conforming use and thought it reasonable to establish under the circumstances an I-2 classification if requested by the owners, the record offers no more than his present conjecture of what might then have been done. Further, this assumed need for I-2 zoning is based in part on 375 his belief that the fuel oil business involved was, as he stated "wholesale storage of petroleum products," to which additional reference will be made. The weight to be attached to this testimony furnished by a witness not charged with the responsibility of any final decision must be reviewed in the light of the prior holding of this Court that even the statement of a member of the legislative body which adopted the map, "that he thought an error had been made was not conclusive of that fact." See Reese v. Mandel, supra, p. 128. Appellants persist in maintaining that the fuel oil business conducted by them falls within an I-2 classification. The forerunner of this enterprise was a retail coal business and the evidence points to a replacement of the retail coal sales with retail oil sales in accordance with modern trends and the present popularity of oil fired furnaces. It scarcely can be seriously argued, we think, that this operation, serviced from only two oil storage tanks with a limited capacity of forty thousand gallons, was other than retail. Petroleum Refining or Wholesale Storage is prohibited in an I-1 zone by Section 22.11 of the Zoning Ordinance for the Maryland-Washington Regional District in Prince George's County, Maryland, but since Fuel Storage Plant or Yard (coal, coke, gasoline, oil, wood, etc.) is only specifically prohibited from the higher classification C-2 (general commercial) it would seem (although we make no such finding) that such a use is permitted in an I-1 zone, the ordinance being of the exclusionary character. The tanks occupy a minute part of the tract under consideration so that even if the Board of County Commissioners had been aware of their existence in 1949 there is little reason to assume that the entire property would have been included in an I-2 zone. This is particularly true when considered in connection with the fact that the appellant sought and later received on November 21, 1951, subject to certain restriction, under Petition No. 1787, Class I-1 zoning for the extreme southerly section of the property. It must be assumed that the authorities then knew of the installation of the tanks. The almost complete lack of reference to facts which would establish a sufficient change in the character of the neighborhood to require a reclassification or any argument on the issue 376 leads us to the conclusion that this contention has been abandoned. Certainly, the testimony produced by the appellees of increased residential construction in the area and that there had been no I-2 zoning granted would make the issue, at least, fairly debatable. There are no facts in the record which support the appellants' assertion that the District Council based its decision on a "plebiscite" of the opposing neighboring property owners. This contention rests on the bare conjecture of the appellants. Similar charges of "plebiscite" were made, or the Court had occasion to comment upon the unlawful restricting of individual rights by a legislative body, allegedly based on the exercise of the police power, where the determination was made solely on the ground that property owners objected, in Benner v. Tribbitt, 190 Md. 6, 57 A.2d 346, Montgomery County Council v. Scrimgeour, 211 Md. 306, 127 A.2d 528, Mettee v. County Commissioners of Howard County, 212 Md. 357, 129 A.2d 136, and Sampson Brothers (Md.), Inc. v. Board of County Commissioners of Prince George's County, 240 Md. 116, 213 A.2d 289. A most appropriate observation on the subject was made by Judge Henderson when he said in Mettee v. County Commissioners of Howard County, supra, at p. 364: "Obviously, an exercise of the police power cannot be made to depend upon a count of noses, but, on the other hand, the very fact that a public hearing is required before the adoption or reconsideration of a master plan indicates that public sentiment on the proposal is not wholly irrelevant. The zoning authorities are by no means bound to regard the wishes of property owners, but their decision is not to be condemned simply because it adopts the views advocated by a majority of the persons primarily affected." A public hearing is required on zoning petitions in Prince George's County. Zoning Ordinance, Prince George's County, Maryland, Section 29.3. As pointed out by the appellees, if they have legitimate grounds for attacking the zoning petition at the hearing they will be penalized, under the appellants' theory, for so doing and 377 on the other hand if they sit idly by their arguments against reclassification will never be known; in either event they lose. This is not the law. The second question, the validity of the zoning ordinance as applied to the subject property under the evidence, according to the appellants, raises several issues. Initially, they say and cite N.W. Merchants Term. v. O'Rourke, 191 Md. 171, 60 A.2d 743, as authority for this proposition, that "[i]n order to impose restrictions some valid exercise of the police power must be proven, but such power is invoked for the protection of the property restricted and not to give protection to surrounding property," p. 187. The facts in Terminal were diametrical to those here; there the neighbors endeavored to upgrade zoning from commercial to residential while in the instant case the appellants seek to expand from limited industrial use to almost unlimited uses. Next, they submit that "the uses permitted in the Industrial Zones are so restricted when applied to the facts of this rezoning as to amount to an unlawful taking." In the light of the lawful uses presently being made by the appellants of their property and the vast number of additional uses permitted and feasible under existing zoning, this charge is void of any substance. Cf. Frankel v. City of Baltimore, 223 Md. 97, 162 A.2d 447; Sapero v. M. & C.C., 235 Md. 1, 200 A.2d 74, and Baltimore City v. Borinsky, 239 Md. 611, 212 A.2d 508. Following this they contend "that to prohibit the cutting and welding together of finished steel beams to form part of a finished beam is not a type of metal fabrication that should be prohibited, in light of all the types of industrial usages permitted in the I-1 classification." What uses are to be included in a classification under a zoning ordinance is a question for the legislative wisdom of the Board of County Commissioners and is not subject to judicial review unless obviously unreasonable or arbitrary. See Wakefield v. Kraft, 202 Md. 136, 96 A.2d 27. The facts here do not demonstrate any unreasonable or arbitrary exclusion of metal fabrication from an I-1 zone. Appellants' witness, Mr. Walcroft, and others, testified that the noise of a railroad train passing appellants' property "almost drowned out the noise" coming from the fabrication *378 shop. If the sound created by a passing railroad train does not mask the racket emitted from a metal shop there can hardly be any doubt that at least the Board of County Commissioners' decision to include metal fabrication in an I-2 zone was fairly debatable. The testimony of several of appellees' witnesses and tape recordings of the noise further establish the extent and volume of the noise and its objectionable character. But, of even more important consideration, is what may be expected from operations generally carried on within a classification, not by just one particular fabricator, and it strikes us as reasonable that generally a metal fabrication plant should be excluded from an I-1 (light industrial) zone. Again, appellants unrealistically argue that their special "type" of fabrication is not seriously objectionable and that a whole new classification should be established for them. This is not consistent with zoning law practices. The facts of City of Amarillo v. Stapf, 109 S.W.2d 258, (Texas), referred to by appellants vary so greatly from those presented here that it totally fails of applicability. Order affirmed, appellants to pay the costs.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518708/	89 N.J. Super. 159 (1965) 214 A.2d 423 STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. SAM LaDUCA, DEFENDANT-APPELLANT. Superior Court of New Jersey, Appellate Division. Argued September 13, 1965. Decided October 11, 1965. 161 Before Judges CONFORD, KILKENNY and LEONARD. Mr. Jerome A. Vogel argued the cause for appellant (Messrs. Jeffer, Walter & Tierney, attorneys). Mr. Archibald Kreiger, Assistant Prosecutor, argued the cause for respondent (Mr. John G. Thevos, Passaic County Prosecutor, attorney). 162 The opinion of the court was delivered by CONFORD, S.J.A.D. Defendant appeals a conviction in the Passaic County Court after a jury trial on a charge of maintaining a gambling resort in violation of N.J.S. 2A:112-3. The primary ground of appeal is the denial of defendant's pretrial motion to suppress certain evidence as having been obtained by the police as the result of an illegal search and seizure. A full factual exposition of the attendant circumstances was not had on the motion because the trial judge who heard it denied it, before the proofs were complete, on the ground that the defendant was without standing to raise the question. However, additional evidence filling out the factual picture on the search question was adduced during the trial (which was held before a different judge). Most of the relevant facts have been stated in defendant's brief, and the State's brief agrees that this court should now decide the issue on that set of facts, which is conceded to be accurately set forth therein. We proceed to do so, but supplementing the recital of facts with so much of that testimony of the State's witnesses as is undisputed. The essential facts are these. Defendant LaDuca was the proprietor of a barber shop in Passaic. On July 2, 1962 a search warrant was issued to search the shop and its occupants on an affidavit by a State Police officer couched in purely conclusionary terms that certain bookmaking paraphernalia were believed to be "located" therein. The insufficiency of the affidavit, and the consequent invalidity of the warrant, State v. Macri, 39 N.J. 250 (1963), are not challenged by the State. The warrant was delivered by the county prosecutor to county detectives Reiser and Saginario for execution. Armed therewith, they proceeded to the barber shop premises, Saginario entering the front door and Reiser the rear. They locked both doors to prevent anyone from leaving or entering the premises, and then, after showing the warrant to an employee barber then in charge, thoroughly searched the premises. Defendant was not in the shop at the time, but 163 two patrons in addition to the employee were. These men were required to empty their pockets, but nothing incriminating was found by the detectives. While the detectives were thus fruitlessly engaged, one Torrieri came to the shop and tried to gain entrance. Finding the door locked, he was about to turn away when Reiser opened the door and called him in. Reiser showed Torrieri the search warrant and asked him to empty his pockets. Torrieri complied and produced a betting slip together with seven dollar bills wrapped therein. Saginario then obtained Torrieri's signature on a written consent to search his car parked nearby. That search revealed a racing program and a duplicate of the slip which was produced from his pocket in the shop. During the trial Torrieri, called as a witness by the State, testified he had come to the shop on the occasion in question to "place a bet with Sam" and that he had done so on a number of prior occasions. The pretrial motion to suppress all the items of evidence mentioned above having been denied, they were all admitted in evidence against defendant during the trial. We first deal with the ground of denial of the pretrial motion lack of standing of defendant, owner of the premises where the illegal search was conducted, to complain of the seizure of property from another person. This was patently groundless. The search was aimed at defendant, and it was his privacy which was invaded. The warrant designated his shop. He therefore had standing to complain of the evidential use against him of anything obtained by the police as a result or in the course of that search. Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); and cf. State v. Bibbo, 83 N.J. Super. 36 (App. Div. 1964). A defendant is entitled to suppression of evidence seized in an unlawful search if he has either a "proprietary, possessory or participatory interest in the purloined or bludgeoned evidence, or, alternatively, in the place where it was found" (emphasis added). Maguire, Evidence of Guilt, p. 216 (1959); Jeffers v. United States, 88 U.S. App. D.C. 58, 164 187 F.2d 498, 500 (1950), affirmed United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); State v. Wade, 89 N.J. Super. 139 (App. Div. 1965). The State also contends that since "the search and seizure of the betting slips took place on the premises of the barber shop which is a public place by statute and the common law because members of the public had the right to enter, including the police," therefore it follows that a seizure from Torrieri without a warrant is "not a search within the protection of the Fourth Amendment which is limited to and protects invasion against the police from unreasonable searches and seizures in private homes and places." The argument is completely without foundation. It has never been held that a place of business of a private person or concern open to the public for purposes of doing business is beyond the protection of the Fourth Amendment, although the nature of a place of business as open to the public clearly is a factor in adjudging the reasonableness of an entry thereon by police officers. Private places of business, although open to such members of the public as had business with the owners, have repeatedly been held, or have been assumed without argument to the contrary, to be within the protection of the Fourth Amendment. Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931); United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932). In United States v. DiCorvo, 37 F.2d 124, 132-133 (D.C. Conn. 1927), it was well stated: "The Fourth Amendment throws a mantle of protection around `houses' generally not merely dwelling houses. A person's office or place of business is quite as immune from search without a warrant as his kitchen or bedroom." In Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946), a majority of the court sustained the seizure without a warrant by federal officers of wartime gasoline 165 ration coupons unlawfully possessed by defendant but only after it had been shown that purchase by the officers of gasoline from the proprietor without coupons at "black market" prices gave them reasonable cause to believe that defendant was committing the crime of possession of ration coupons unlawfully acquired. The court reasoned that the coupons were by statute "public property in the custody of a citizen" rather than "private papers or documents" and that the officers had greater leeway in the choice of methods to reclaim that which was unlawfully possessed. It was emphasized that no general exploratory search was made and that defendant turned over to the agents the coupons and nothing else (id., at pp. 586, 592, 66 S.Ct., at p. 1256). The court enigmatically said, in sustaining the search resulting in the surrender by defendant of the coupons (id., at p. 593, 66 S.Ct., at p. 1261): "The right of privacy of course remains. But, as we have said, the filling station was a place of business, not a private residence." Mr. Justice Frankfurter vigorously dissented, particularly at the "casual" intimation that the Fourth Amendment accords less protection to business offices than private residences (id., at p. 596, 66 S.Ct. 1256). We can agree with the State that a private business whose doors are open to the general public is also to be considered open to entry by the police for any proper purpose not violative of the owner's constitutional rights e.g., patronizing the place or surveying it to promote law and order or to suppress a breach of the peace. One can go as far as Smith v. United States, 70 U.S. App. D.C. 255, 105 F.2d 778 (1939), and hold that if police suspect a barber shop to be a betting parlor they may enter the place through an open or unlocked door, just as any member of the public is privileged to do, and then, if without a previous search ordinarily requiring a warrant they observe the commission of a crime in the premises they may arrest the offender and as incidental thereto search as much of the place as is under the control of the arrestee to find and seize things used to carry on the 166 unlawful enterprise. On its facts the Smith case holds no more than that. Nor do Fisher v. United States, 92 U.S. App. D.C. 247, 205 F.2d 702 (1953), and the other cases cited by the State. Cf. State v. Bibbo, supra, where, too, there was an arrest and search incidental thereto based on an observation by a police officer present in a store of the crime of possession of a lottery slip in his presence. The facts of the present case are clearly distinguishable from those of any of the cases mentioned above. Here the police did much more than observe the commission of a crime from a privileged vantage point. It is doubtful whether there was any observation of the commission of any crime at all. Certainly there was none before Torrieri was searched. Torrieri was questioned, but not arrested; as a mere prospective bettor, he was not guilty of any crime, see State v. Lennon, 3 N.J. 337 (1949); N.J.S. 2A:40-1. Without a valid warrant, without any arrest of anyone, and without the prior observation of the commission of any crime therein, the police took the entirely illegal action of, in effect, seizing possession of the defendant's barber shop by locking not only the front door, through which the public ordinarily had access, but also the presumably private rear door, and then not only searching the physical premises but also under the authority of the illegal warrant compelling the occupants, including defendant's employee, to empty their pockets. Moreover, Torrieri's acquiescence in their demands to search his person and car was also clearly the product of the exercise of authority by the officers as manifested by the exhibition of the search warrant to him. Realistically, the search of the premises and the other occupants was integral with the search of Torrieri and his car. All were part and parcel of a single transaction the police raid of the shop. The illegality of the search of the premises infects the incidental search of Torrieri. It would be quibbling to attempt a distinction between the facts as they occurred and the situation which would have obtained if Torrieri had arrived a few minutes before and had been waiting for defendant with the other people in the shop when the 167 detectives arrived, in which case the illegality of the search would be so obvious as not even to be debatable. The State argues that we should examine the validity of the search of Torrieri as though the antecedent search of the shop and its original occupants never took place as though, for example, the police were waiting on the sidewalk for a betting customer of defendant to appear and they thereafter searched Torrieri outside the shop when he came upon the scene. In such case, they argue, any illegality in the search of Torrieri would be completely beyond an attack by LaDuca. The trouble with this proposition is that it varies too materially from what in fact did occur. The admission of Torrieri into the shop and his confrontation with the same illegal warrant with which the police had just gained submission to the seizure and search of the premises by the other occupants thereof prevent isolation of the Torrieri aspect of the search from the episode as a whole. The events are not "isolable" when a court is confronted with the practical question as to whether a violation of the Fourth Amendment took place and asked to apply the prophylactic sanction of the exclusionary rule to the evidence thus obtained. Cf. United States v. Jeffers, supra (342 U.S., at p. 52, 72 S.Ct., at p. 93). The State does not seriously argue that the taking of the slips, etc., from Torrieri's person was validated by his consent. Its only emphasis in its brief is that he "did not object." A failure to object is not necessarily a consent. But to the extent that any consent issue is in the case, since we are deciding the validity of this search and seizure on this appeal without further delay, by agreement of the parties, as an exercise of original jurisdiction, we hold on the facts and the law that the confrontation of Torrieri with an apparently valid search warrant by police officers actively conducting a search of the premises rendered the situation one of coercive acquiescence by Torrieri in their authority rather than voluntary consent. Not to have complied with the request would have risked contempt of court. N.J.S. 2A:10-1(c). Cf. State v. King, 44 168 N.J. 346, 352-354 (1965); Judd v. United States, 89 U.S. App. D.C. 64, 190 F.2d 649 (1951). Even could Torrieri's surrender of the damaging papers and money to the police be regarded as voluntary on his part, or the taking thereof from him be properly regarded as a transaction separate from the unlawful search of the shop and the other occupants thereof (and we said we do not think so), we would nevertheless take the view that the evidence was still suppressible as the fruits of the illegal entry and search under a rule older than but recently dramatically reapplied in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and now generally referred to as the Wong Sun rule. The court there reminds us that at least as far back as Silverthorne Lumber Co. v. United States, supra, it had been recognized that, "The exclusionary prohibition extends as well to the indirect as the direct products of such invasions [violative of the Fourth Amendment]" (371 U.S., at pp. 484-485, 83 S.Ct., at p. 416). It was consequently there held that because an illegal entry into a laundry and an illegal arrest therein by federal agents of its proprietor, one Toy, resulted in Toy's revelation that narcotics might be found at the different premises of one Yee, whereupon the federal agents at once repaired to Yee's and obtained from him narcotics which he said he had gotten from Toy and another, both Toy's oral admissions and the narcotics were inadmissible in evidence against Toy in a prosecution for illegal possession, etc. The reasoning of the court was that they were the "fruit of the poisonous tree" of the original illegal entry into Toy's premises and of his arrest. It is noteworthy in Wong Sun that Yee apparently turned over the narcotics to the agents at once upon mere relation to him of Toy's admission (371 U.S., at p. 475, 83 S.Ct., at p. 407). Compare Torrieri's compliance here. We regard the present case as an a fortiori situation for application of the Wong Sun rule. The knowledge of the betting paraphernalia in Torrieri's possession was not gained from a source "independent" of the "Government's own *169 wrong" but as a direct outcropping thereof (371 U.S., at p. 485, 83 S.Ct. 407). Had the detectives not been in the shop searching the place and its occupants at the particular time while brandishing an illegal warrant they presumably would not have caught Torrieri in their web nor been able to extract his papers by reason of the authority of that same warrant and of their status as police officers engaged in the ostensible performance of their duties. For the reasons stated we find defendant suffered prejudicial harm in the denial of his motion for suppression and the consequent admission in evidence against him of the incriminating papers and currency taken from Torrieri. Defendant has asserted other grounds of error which we do not believe would, alone, have warranted reversal of the conviction. Since the case is to be retried, however, we suggest that in confronting defendant on cross-examination with the record of his prior convictions as bearing on credibility there be no reference by the prosecutor to any "file in the bureau of the Department of Justice," see State v. Cooper, 10 N.J. 532, 556 (1952), nor any questioning concerning the defendant's conduct underlying any such conviction not contained in the judgment record thereof. Reversed and remanded for a new trial.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518723/	569 F. Supp. 73 (1983) AMERICAN SPRING WIRE CORP., et al., Plaintiffs, v. UNITED STATES, Defendant, and Companhia Siderurgica Belgo-Mineira, Intervenor. Court No. 82-11-01579. United States Court of International Trade. August 24, 1983. Eugene L. Stewart, Terence P. Stewart and Kathleen T. Weaver, Washington, D.C., for plaintiffs. J. Paul McGrath, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Washington, D.C. (Velta A. Melnbrencis, New York City, on brief), for defendant. Wald, Harkrader & Ross (Christopher Dunn and Arthur J. Lafave III, Washington, D.C., on briefs), for intervenor Companhia Siderurgica Belgo-Mineira. Opinion and Order MALETZ, Senior Judge: This action contests various aspects of a suspension agreement entered into between the Department of Commerce, International Trade Administration (ITA), and the government of Brazil pursuant to section 74 704 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1671c (Supp. IV 1980). Four months after this action was filed, the U.S. International Trade Commission (ITC) made a determination that no industry in the United States was either suffering or threatened with material injury as a consequence of the subsidies which were the raison d'etre of the suspension agreement. See 48 Fed.Reg. 12,143 (1983). By operation of law the suspension agreement became null and void ipso facto.[1]See S.Rep. No. 249, 96th Cong., 1st Sess. 54 (1979), reprinted in 1979 U.S.Code Cong. & Ad. News 381, 440 ("If the final determination by the ITC ... in a continued investigation is negative, then the agreement would be void ..."). Intervenor Companhia Siderurgica Belgo-Mineira, joined by the government, has now moved for a dismissal of plaintiffs' complaint based on mootness. For the reasons that follow, the court agrees that this action is moot. Accordingly, the motion to dismiss is granted. By way of background, on March 4, 1982 plaintiffs American Spring Wire Corp., Florida Wire & Cable Co. and Shinko Wire America, Inc. filed a petition with the ITA, pursuant to 19 U.S.C. § 1671a(b), alleging that subsidies were being provided to manufacturers, producers or exporters of prestressed concrete steel wire strand from Brazil, and that imports of this merchandise were a cause or threat of material injury to a domestic industry in the United States. On August 2, 1982, the ITA issued a preliminary affirmative subsidy determination. 47 Fed.Reg. 34,609. On October 15, 1982, the governments of Brazil and the United States signed a suspension agreement the subject of this action under which the countervailing duty investigation was suspended and suspension of liquidation of customs duties was terminated in return for Brazil's agreement to place an export tax on wire strand exported to the United States. It was agreed that the export tax would be equal to the amount of the net subsidy found by the ITA to exist for this product. 47 Fed.Reg. 47,048 (1982). On November 19, 1982, plaintiffs filed this action, contesting the legality of that agreement. Despite this suspension agreement, plaintiffs elected to press on with their administrative attack. To that end, pursuant to 19 U.S.C. § 1671c(g),[2] they requested a continuation of the countervailing duty investigation. Complying with this request the ITA issued a final affirmative determination on January 26, 1982. 48 Fed.Reg. 4,516. However, on March 23, 1983, the ITC made a final negative injury determination which, as previously indicated, rendered nugatory the suspension agreement. Intervenor thereupon filed its present motion which the government joined. All of the parties acknowledge the constitutional dimension of the mootness doctrine. See, e.g., Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3, 84 S. Ct. 391, 394 n. 3, 11 L. Ed. 2d 347 (1964). In order to satisfy the "case or controversy" clause of Article III there must exist "a present, live controversy ... to avoid advisory opinions on abstract propositions of law." Tennessee Gas Pipeline Co. v. FPC, 606 F.2d 1373, 1379 (D.C.Cir.1979) ("no jurisdiction over suits challenging administrative orders which are moot"). In the present case, there is no such controversy since the subject of the action the suspension agreement has expired by operation of law. If the court were to render an opinion on the legality of various aspects of the suspension agreement, it would be rendering an opinion that 75 is merely advisory. And it is well-nigh aphoristic that "federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them." North Carolina v. Rice, 404 U.S. 244, 246, 92 S. Ct. 402, 404, 30 L. Ed. 2d 413 (1971). Since the suspension agreement is no longer in effect, such an opinion would have no impact on the current interests of the parties to this litigation. In this sense, the controversy is not one "admitting of specific relief through a decree of a conclusive character, ..." Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 241, 57 S. Ct. 461, 464, 81 L. Ed. 617 (1937). It is true that in another action pending in this court, see American Spring Wire Corp. v. United States, Court No. 83-3-00455, plaintiffs have challenged the ITC's no-injury determination the event which terminated the suspension agreement. However, no disposition of that determination by this court could possibly breathe new life into the suspension agreement. The ITC's no-injury finding sounded the death knell of that agreement; this court lacks power to resurrect it under the circumstances presented here. Plaintiffs' contention that the suspension agreement would be revived should they successfully challenge the ITC's negative injury determination is pure surmise. Straying into a prediction of future events is no substitute for showing an actual controversy, or even one that is likely to recur. "[S]uch speculative contingencies afford no basis for our passing on the substantive issues [plaintiffs] would have [the court] decide." Hall v. Beals, 396 U.S. 45, 49, 90 S. Ct. 200, 202, 24 L. Ed. 2d 214 (1969). Plaintiffs argue that this action fits into that narrow exception carved out of the mootness doctrine an action "capable of repetition, yet evading review." See, e.g., Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1972); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S. Ct. 279, 283, 55 L. Ed. 310 (1911). Plaintiffs apparently contend that the nature of suspension agreements is such that their formal legal effect will be typically shortlived. The court finds this argument meritless. Suspension agreements, as clearly contemplated under the Trade Agreements Act of 1979, will generally be of long duration, unless pretermitted by a continued investigation in which either no subsidy or no injury is found to exist. See, e.g., 19 U.S.C. § 1671c(d)(1), which calls for effective monitoring of suspension agreements by the United States, and 19 U.S.C. § 1675, providing for administrative review of such agreements no sooner than two years after they are first published. An interested party who wishes to challenge such an agreement will thus rarely find itself faced with a situation where the agreement has evaded judicial review. If the procedures of the ITA at issue here remain unchanged, there is no reason to suppose that a subsequent case attacking those procedures will not come with relative speed to this court. In sum, the controversy among the parties has clearly ceased to be "definite and concrete" and no longer "touch[es] the legal relations of parties having adverse legal interests." Haworth, 300 U.S. at 240-41, 57 S.Ct. at 464. This case, therefore, in no way presents "the exceptional situation ... which might permit a departure from `[t]he usual rule in federal cases ... that an actual controversy must exist [at the judicial review stage], and not simply at the date the action is initiated.'" DeFunis v. Odegaard, 416 U.S. 312, 319, 94 S. Ct. 1704, 1707, 40 L. Ed. 2d 164 (1974), quoting Roe v. Wade, 410 U.S. at 125, 93 S.Ct. at 713 (emphasis added). Because the suspension agreement is null and void, the court concludes that it cannot, consistently with the limitations of Article III, consider the issues tendered by plaintiffs. Accordingly, the motion to dismiss plaintiffs' complaint is granted and the action is dismissed. NOTES [1] 19 U.S.C. § 1671c(f)(3)(A) provides in part: If ... the Commission continue[s] an investigation in which an agreement has been accepted ..., then (A) if the final determination by ... the Commission ... is negative, the agreement shall have no force or effect .... [2] That section provides in part: If the administering authority [the ITA], within 20 days after the date of publication of the notice of suspension of an investigation, receives a request for the continuation of the investigation from * * * * * * (2) an interested party ..., then the administering authority and the Commission shall continue the investigation.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518702/	569 F. Supp. 1452 (1983) Thomas T. WILLIAMS and Kempy Mitchell, Plaintiffs, v. Victor GARCIA, et al., Defendants. Civ. No. 83-0623. United States District Court, E.D. Michigan, S.D. August 24, 1983. Kenneth W. Morrison, Detroit, Mich., and Robert A. Peurach, Bloomfield Hills, Mich., for plaintiffs. Thomas D. Beeby, Detroit, Mich., for Sheriff Santos and Webb Co. Anthony C. McGettrick, Asst. City Atty., Laredo, Tex., and James C. Zeman, Detroit, Mich., for Garcia, Tatangelo, Police Dept. & City of Laredo. MEMORANDUM OPINION RALPH M. FREEMAN, Senior District Judge. The complaint filed in this case contains two counts. Jurisdiction is based on 42 U.S.C. §§ 1981, 1983, 1985(3), 1986, and the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. Plaintiffs' claim is based on the imprisonment of plaintiffs in Laredo, Texas by the City of Laredo Police Department. Plaintiffs' first count asserts that defendants, acting separately and in concert, deprived them of a battery of constitutionally protected rights. (Plaintiffs' Complaint ¶ 21). The second count asserts that the same defendants are liable for the same conduct on a variety of tort 1453 theories under Texas law. In lieu of answering the complaint, defendants Mario Santos, Jr., Webb County, Texas, Victor Garcia, Aldo Tatangelo, City of Laredo, Texas, and the Laredo Police Department have moved to dismiss the complaint pursuant to F.R.Civ.P. 12(b)(2) and (3) or, in the alternative, for change of venue to the Western District of Texas pursuant to either 28 U.S.C. § 1404(a) or 1406(a). There are four unnamed Texas defendants, Laredo Police Officers A and B, Laredo Police Detective John Doe, and Laredo Warrant Officer Richard Roe. The only other defendant is Joseph Moses, who is alleged to be a resident of Michigan. Based on the record in this case, Moses has not been served with the complaint. Argument was heard on August 3, 1983 at which time this matter was taken under advisement. 12(b)(2) Motion to Dismiss The Court will first review the Texas defendants'[1] motion to dismiss for lack of personal jurisdiction under F.R.Civ.P. 12(b)(2). Leroy v. Great W. United Corp., 443 U.S. 173, 180, 99 S. Ct. 2710, 2714-15, 61 L. Ed. 2d 464 (1979). Each party agrees that valid service depends upon the reach of Michigan's long-arm statute under F.R. Civ.P. 4(e). This Court must first determine whether the state statute authorizes jurisdiction over these defendants and, second, whether the jurisdictional reach of the statute is within the constitutional due process limits of the Fourteenth Amendment. When the state has permitted its courts to reach the constitutional limit, the two questions merge into one. See World-Wide Volkswagen v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980); International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945); National Can Corp. v. K Beverage Co., 674 F.2d 1134 (6th Cir.1982); Southern Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374 (6th Cir.1968). In the case at hand, plaintiffs contend that the Court has limited personal jurisdiction over the Texas defendants under M.C. L.A. § 600.705(2) and § 600.715(2). The relevant language of these sections, which apply to individuals and corporations, respectively, and which is identical, requires "[t]he doing or causing of any act to be done, or consequences to occur, in the state resulting in an action for tort." Plaintiffs all but acknowledge that all conduct which they allege violated their constitutional rights and all conduct which they allege was tortious occurred in Texas. The only nexus to Michigan is defendant Moses, who plaintiffs allege conspired with the Texas defendants resulting in the alleged injuries to plaintiffs. Plaintiffs allege the following facts in their complaint, which give rise to their cause of action. Defendant Garcia is the Chief of Police for the City of Laredo. Defendant Tatangelo is the Mayor of the City of Laredo. Defendant Mario Santos, Jr., is the Sheriff of Webb County. Plaintiffs' employer, Stephen Talley, entered into a lease agreement with defendant Moses for use of a tractor to haul freight. Moses supplied the tractor to Talley who then engaged plaintiffs to haul freight to Missouri. While in Missouri, plaintiffs obtained a one-way haul from Lebo, Kansas to Laredo, Texas. Subsequent to plaintiffs' departure from Detroit, a dispute arose between Moses and Talley with respect to the terms of the lease. At this point, Moses demanded payment or return of his tractor. When Talley refused both demands, plaintiffs allege that Moses set in motion the events which led to their arrest and incarceration in Laredo, Texas for unauthorized use of a motor vehicle under the Texas Penal Code. The alleged injurious conduct of the defendants is asserted to have begun with the arrest and continued throughout their incarceration. The plaintiffs have presented two theories on just how the Laredo Police Department was brought into this matter. In the complaint, at ¶ 5, plaintiffs allege that defendant Moses directly contacted the Laredo Police Department. In plaintiffs' response to the motions now before the Court, they allege that Moses 1454 first contacted the Detroit Police Department about the missing tractor and that it was the Detroit Police Department who then contacted the Laredo Police Department. When questioned about the discrepancy at the hearing, plaintiffs asserted that their investigation has led them to believe that Moses initially contacted the Detroit Police Department. Plaintiffs noted, however, that they need further time to discover the nature of Moses' contacts with both the Detroit Police Department and the Laredo Police Department. Plaintiffs allege that the Laredo Police Department obtained a warrant for their arrest based on the information transmitted by the Detroit Police Department. The plaintiffs were then arrested pursuant to the warrant. Plaintiffs describe the subsequent events as follows: After apprehending the plaintiffs, the Laredo Police Department contacted the Detroit Police Department, by telecommunication, to determine whether to extradite the plaintiffs for prosecution in the State of Michigan. The Detroit Police, pursuant thereto, contacted Moses for verification of the plaintiffs' identities and for a formal, sworn complaint. Moses, however, refused to swear to the formal complaint because his charges were unfounded. Faced with an inadequate record the Detroit Police Department sent another message to the Laredo Police Department directing that the plaintiffs be immediately released. However, in spite of that direction, and without charging plaintiffs with any violation of Texas law, the Laredo Police Department retained plaintiffs in jail for thirty-eight (38) more days. Plaintiffs understand that the Laredo Police Department did not release them because of further directions directly from Moses. It was during that false imprisonment period that plaintiffs were subjected to the repeated psychological and physical abuse alleged in the complaint which included, but was not limited to, racial slurring, inadequate physical protection, grossly substandard meals and general ill treatment, which resulted in the anxiety, humiliation and general suffering for which plaintiffs are suing herein. For purposes of the instant motion, therefore, the connection between the tortious course of conduct that began with Moses' fraudulent complaint filed in Detroit, and continued with the other malicious acts in Texas, turns upon the conspiracy between the Texas defendants and Moses to subject the plaintiffs to retributional abuse without regard to constitutional rights. (Plaintiffs' brief in response to Motion to Dismiss). Plaintiffs contend that, because very little discovery has been completed, they are not able to set forth the nature of defendant Moses' contacts with the Texas defendants. This is compounded by their inability to serve Moses with the complaint in this action. In Hadad v. Lewis, 382 F. Supp. 1365 (E.D.Mich.1974), M.C.L.A. § 600.705(2) was construed as bestowing upon Michigan courts the broadest grant of jurisdiction that would be consistent with due process, citing Sifers v. Horen, 385 Mich. 195, 188 N.W.2d 623 (1971). Section 600.715 has been construed as granting equally extensive jurisdiction. Microelectronic Sys. Corp. v. Bamberger's, 434 F. Supp. 168 (E.D.Mich. 1977). Thus, the sole inquiry for this Court is whether there are minimum contacts between the defendants and Michigan, keeping in mind that "limited jurisdiction ... exposes a nonresident to suit in Michigan only for a cause which arose out of the relationship serving as a basis for such jurisdiction." Sifers v. Horen, 385 Mich. at 199, 188 N.W.2d 623. It is clear that even a single act may provide the basis for longarm jurisdiction under the statute. Khalaf v. Bankers & Shippers Ins. Co., 404 Mich. 134, 273 N.W.2d 811 (1978); Sifers v. Horen, 385 Mich. 195, 188 N.W.2d 623 (1971). Considering the due process limitations on the exercise of jurisdiction based on a single act, the Sixth Circuit has developed three criteria for determining the outer limits of such jurisdiction: First, the defendant must purposely avail himself of the privilege of acting in the forum state. Second, the cause of action must arise from defendant's activities there. Finally, the acts of the defendant 1455 or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction reasonable. Southern Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374, 381 (6th Cir.1968). Michigan also requires a plaintiff to demonstrate that a non-resident defendant has purposefully availed himself of the privilege of conducting activities in Michigan before he can be subject to the jurisdiction of Michigan courts. Khalaf v. Bankers & Shippers Ins. Co., supra. Since there is no statutory procedure for resolving the issue of jurisdiction, the mode of its determination is left to the discretion of the trial court. Gibbs v. Buck, 307 U.S. 66, 59 S. Ct. 725, 83 L. Ed. 1111 (1939). Although the burden of establishing jurisdiction is on the plaintiff, the burden is ordinarily met by a prima facie showing that jurisdiction is confined by the state long-arm statute. See Weller v. Cromwell Oil Co., 504 F.2d 927 (6th Cir.1974); United States v. Montreal Trust Co., 358 F.2d 239 (2d Cir.), cert denied, 384 U.S. 919, 86 S. Ct. 1366, 16 L. Ed. 2d 440 (1966). The burden is relatively slight and the Court must consider the pleadings and affidavits in the light most favorable to plaintiff to determine whether plaintiff has demonstrated facts which would support a finding of jurisdiction. Welsh v. Gibbs, 631 F.2d 436 (6th Cir.1980), cert denied, 450 U.S. 981, 101 S. Ct. 1517, 67 L. Ed. 2d 816 (1981). However, plaintiffs may not rest on their complaint but must come forward with evidence, by affidavits or otherwise, to support jurisdiction. Amba Mktg. Sys. v. Jobar Int'l., Inc., 551 F.2d 784 (9th Cir.1977). Plaintiffs contend that the Texas defendants caused an act to be done or consequences to occur in Michigan resulting in an action for tort. M.C.L.A. §§ 660.705(2), 715(2). Plaintiffs rely on their theory of a conspiracy to demonstrate that the defendants caused an act to be done in Michigan. The theory advanced, while not clearly articulated, rests on the legal premise that the acts of a conspirator are imputed to all other co-conspirators. Thus, in the case at hand, plaintiffs contend that the acts of defendant Moses in Michigan should be imputed to the Texas defendants. Under this theory, according to plaintiffs, the Texas defendants are subject to the jurisdiction of this Court for having caused an act in Michigan. Plaintiffs have cited and relied on two cases that have adopted and applied such a theory. Dixon v. Mack, 507 F. Supp. 345 (S.D.N.Y.1980); Istituto Bancario Italiano v. Hunter Eng'g Co., 449 A.2d 210 (Del.1982). The Sixth Circuit has neither adopted nor rejected the conspiracy theory of in personam jurisdiction. Chrysler Corp. v. Fedders Corp., 643 F.2d 1229 (6th Cir.), cert denied, 454 U.S. 893, 102 S. Ct. 388, 70 L. Ed. 2d 207 (1981). In Chrysler, the court held that Chrysler's allegations of a conspiracy among the defendants were unsupported by any factual assertions. Therefore, the Court did not have to address the viability of the conspiracy theory in this Circuit. In the case at hand, plaintiffs' allegations are not supported by any affidavits; plaintiffs themselves have failed to file any affidavits. This case was filed February 22, 1983. Because the Texas defendants opted to file the motions now before the Court prior to filing an answer to the complaint, little or no discovery has taken place. Thus, the Court finds that it would be premature to dismiss the complaint against the Texas defendants due to plaintiffs' failure to factually support their assertions. The Court will, however, review the allegations under the analyses proposed in Dixon, supra, and Hunter, supra, to determine if there are minimum contacts, accepting the allegations of plaintiffs as established and accepting the viability of the conspiracy theory in this Circuit. In Dixon v. Mack, supra, plaintiff was abducted in New York City where he was a member of the Unification Church. The abduction was part of an effort to deprogram him. Plaintiff was eventually taken to Pennsylvania where he was treated by a psychiatrist. Plaintiff brought suit in New York against several individuals involved in the effort to deprogram him, including the Pennsylvania psychiatrist. The psychiatrist moved to quash service. Plaintiff asserted that the psychiatrist was amenable to service in New York 1456 as a member of the conspiracy to deprogram him. As such, under the conspiracy theory, the psychiatrist was liable for the conduct of the actors who committed the tortious act of allegedly abducting plaintiff in New York City. The court noted: It has been recognized that "under certain circumstances a person may be subjected to jurisdiction under CPLR § 302(a)(2) on the theory that his co-conspirator is carrying out activities in New York pursuant to the conspiracy." Socialist Workers Party v. Attorney General of the United States, 375 F. Supp. 318, 321 (S.D.N.Y.1974). To establish jurisdiction on this basis, plaintiff must make a prima facie factual showing of conspiracy. Merkel Associates, Inc. v. Bellofram Corp., 437 F. Supp. 612, 617 (W.D.N.Y. 1977). See also United States v. Montreal Trust Co., 358 F.2d 239, 242 & n. 4 (2d Cir.1966), cert. denied, 384 U.S. 919, 86 S. Ct. 1366, 16 L. Ed. 2d 440 (1966). He must also allege specific facts warranting the inference that the defendant was a member of the conspiracy. Louis Marx & Co. v. Fuji Seiko Co., 453 F. Supp. 385, 391-92 (S.D.N.Y.1978). "The plaintiff must come forward with some definite evidentiary facts to connect the defendant with transactions occurring in New York." Socialist Workers Party, 375 F.Supp. at 322. 507 F.Supp. at 348 (emphasis added). The New York court found that the act of allegedly abducting plaintiff in New York City could be imputed to the Pennsylvania psychiatrist. The alleged abduction was a substantial act in New York sufficient to satisfy the due process requirements of minimum contacts and therefore assert jurisdiction over the non-resident psychiatrist. Both the injury and the alleged tortious act occurred in New York. In Istituto Bancario Italiano v. Hunter Eng'g Co., supra, upon which plaintiff relies, the Delaware Supreme Court reviewed the pronouncements of various courts on the "conspiracy theory" of in personam jurisdiction. The court then developed a five prong test: We therefore hold that a conspirator who is absent from the forum state is subject to the jurisdiction of the court, assuming he is properly served under state law, if the plaintiff can make a factual showing that: (1) a conspiracy to defraud existed; (2) the defendant was a member of that conspiracy; (3) a substantial act or substantial effect in furtherance of the conspiracy occurred in the forum state; (4) the defendant knew or had reason to know of the act in the forum state or that acts outside the forum state would have an effect in the forum state; and (5) the act in, or effect on, the forum state was a direct and foreseeable result of the conduct in furtherance of the conspiracy. 449 A.2d at 225 (emphasis added). The significance of the third element cannot be understated. The element is firmly rooted in the minimum contacts requirement set forth by the Supreme Court in International Shoe. The Sixth Circuit has also stressed the significance of conduct within the forum state: "[T]he cause of action must arise from defendant's activities" in the forum state. The question before this Court is whether the alleged acts of defendant Moses in Michigan, when attributed to his alleged Texas co-conspirators, satisfy the due process requirement of minimum contacts with respect to the Texas defendants. The only acts alleged to have been committed by Moses in Michigan are his phone calls to the Detroit Police Department and/or the Laredo Police Department. All conduct which allegedly deprived plaintiffs of certain of their constitutional rights and which was allegedly tortious occurred in Texas. Plaintiffs would have this Court find that these phone calls initiated by Moses in Michigan are substantial acts in Michigan sufficient to assert jurisdiction over the Texas defendants when imputed to them pursuant to the conspiracy theory. The Court cannot agree with such a conclusion. The acts of defendant Moses are not sufficient enough for this Court to conclude that it would be reasonable to assert jurisdiction over the Texas defendants under the conspiracy theory. In Dixon, the tortious act and injury occurred in New York. Thus, once the New York 1457 court found that plaintiffs had established a prima facie case of a conspiracy which included the Pennsylvania psychiatrist, the court could conclude that there were sufficient contacts with New York to assert in personam jurisdiction over the psychiatrist. Indeed, the conduct occurring in New York was significant. In Hunter, the Delaware Supreme Court held that before a conspirator absent from Delaware can be called to answer in Delaware, the plaintiff must make a showing that a substantial act or effect in furtherance of the conspiracy occurred in Delaware. In the case at hand, the only acts taking place in Michigan that plaintiffs can hope to establish are phone conversations between the defendant Moses and the Laredo Police Department. The facts of this case, viewed by the Court as if established, simply do not measure up to the facts in Dixon or the test proposed in Hunter. Further, the actions of defendant Moses, if imputed to the Texas defendants, do not satisfy the Sixth Circuit's three prong test in Southern Machine, supra. Concededly, the first prong is inapplicable to the conspiracy theory of in personam jurisdiction.[2] But with respect to the second prong, the plaintiffs could not establish that the cause of action arises from the Texas defendants' activities in Michigan. The cause of action is based solely on the actions of the Texas defendants in Texas. The injuries complained of, the effects of those actions, were sustained solely in Texas. Finally, this Court cannot conclude that plaintiffs have satisfied the third prong of the test. The acts of defendant Moses, if imputed to the Texas defendants, are not a substantial enough connection with Michigan to make the exercise of jurisdiction reasonable. Therefore, the Court concludes that the Texas defendants lack the requisite minimum contacts with Michigan necessary for this Court to assert in personam jurisdiction over them. Thus, the Court need not pass on the viability of the conspiracy theory of in personam jurisdiction, having found that plaintiffs could not satisfy the requisite elements of the theory if all their factual allegations were accepted as having been established. The only other possible nexus of the Texas defendants with Michigan is the second half of M.C.L.A. §§ 600.705(2), .715(2), tortious conduct causing consequences to occur in Michigan. In Storie v. Beech Aircraft Corp., 417 F. Supp. 141 (E.D.Mich.1976), Judge Kennedy was called on to review the nature of conduct causing consequences to occur in Michigan. The Court concludes that when the Michigan statute speaks of causing consequences to occur within the state, it applies to situations in which an act or conduct of the defendant outside of Michigan leads to an event in Michigan which gives rise to a tort claim. In the context of personal injury cases, that event occurs when the injury results, and in this case that consequence occurred in Ohio at the time of the airplane crash. Id. at 145. In the case at hand the injuries were sustained at the time of the arrest and throughout incarceration. As such, the consequences did not occur in Michigan. Further, plaintiffs cannot bootstrap jurisdiction under this theory to their conspiracy theory. The injuries were simply not suffered in Michigan. Thus, plaintiffs have failed to establish the relationship necessary under MCLA §§ 600.705(2), .715(2) for this Court to require the named Texas defendants to defend themselves in Michigan. This is also true of the four unnamed individuals who are members of the Laredo Police Department. While their identities are not yet known to the plaintiffs, their actions, and the consequences of those actions, occurred in Laredo, Texas. The only defendant possibly subject to the jurisdiction of this Court is Joseph Moses. Therefore, the 12(b)(2) motion to dismiss of the six named Texas defendants will be granted. 1458 12(b)(3) Motion to Dismiss Alternatively, the Texas defendants have moved for dismissal pursuant to F.R.Civ.P. 12(b)(3), improper venue. Under 28 U.S.C. § 1391(b), "[a] civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law." Jurisdiction in this case is founded on 28 U.S.C. § 1331, federal question jurisdiction. Therefore, venue is proper only where all defendants reside or where the claim arose. Plaintiffs concede, and it is beyond question, that there is no district wherein all defendants reside. Thus, this action can proceed only in the district where the claim arose. In Lamont v. Haig, 590 F.2d 1124 (D.C. Cir.1978), the court reviewed the legislative history surrounding section 1391(b). The legislative history of Section 1391(b), by its very generality, is helpful in the resolution of the problem. The portion of Section 1391(b) extending venue to a district "in which the claim arose" was added by amendment in 1966, and the resulting "enlargement of venue" was intended merely to "facilitate the disposition of ... claims by providing, in appropriate cases, a more convenient forum to the litigants and the witnesses involved." The legislative concern was pragmatic: Since the place where the claim arose is the situs of events important to the case, Congress undertook "to facilitate the administration of justice" by permitting suit in a district where the litigation might more handily progress. This practical orientation of Section 1391(b), then, counsels against adherence to mechanical standards in its application. Rather, where "the claim arose" should in our view be ascertained by advertence to events having operative significance in the case, and a commonsense appraisal of the implications of those events for accessibility to witnesses and records. Id. at 1133-34 (footnotes omitted). Earlier in the opinion, the court noted that "resort to familiar common law tort theories might furnish a reasonable ground for selection of a particular district in uncomplicated tort or contract actions." Id. at 1133. Plaintiffs cited Maney v. Ratcliff, 399 F. Supp. 760 (E.D.Wis.1975) in their brief in opposition to the Texas defendants' 12(b)(3) motion to dismiss. This Court finds the Maney court's analysis quite appropriate. Unfortunately for the plaintiffs, the analysis requires dismissal. Section 1983 actions which contain allegations of constitutional deprivations caused by unlawful arrests and seizures are analogous to tort actions for false arrest and imprisonment. See, Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). Since § 1983 should be read against a background of tort law liability, Pierson v. Ray, 386 U.S. 547, 556-557, 87 S. Ct. 1213 [1218-1219], 18 L. Ed. 2d 288 (1967); Monroe v. Pape, supra, 365 U.S. at 167, 81 S. Ct. 473 [at 484] law governing where tort law claims arise is highly relevant for determining where claims under § 1983 should be ruled to have arisen. The traditional rule is that the claim or cause of action arises where the injury occurs, since until there is an injury an essential element of the cause of action is missing. See, Miller v. Cousins Properties, Inc., 378 F. Supp. 711 (D.Vt. 1974); Philadelphia Housing Authority v. American Radiator & Standard Sanitary Corp., 291 F. Supp. 252, 260 (E.D.Pa.1968); Rosen v. Savant Instruments, Inc., 264 F. Supp. 232 (E.D.N.Y.1967). Id. at 766-67. The cause of action in the instant case sounds principally in false arrest and imprisonment. Each of the other claims arises incidentally as a result of the arrest and confinement of the plaintiffs in Laredo, Texas. Under the Maney analysis, the injuries suffered by plaintiffs were sustained solely in Texas. Therefore, the cause of action arose in the Southern District of Texas, which encompasses the City of Laredo. This finding is not altered under the analysis proposed in Lamont. The "events having operative significance in the case" occurred in the City of Laredo. The alleged *1459 acts of defendant Moses in Michigan, viewed as if established, simply do not represent a substantial portion of the acts giving rise to the plaintiffs' cause of action. Thus, the cause of action arose in the Southern District of Texas and, accordingly, venue is proper in that district. Conversely, venue in the Eastern District of Michigan is improper. Summary For the reasons stated above, this action will be dismissed with respect to the six named Texas defendants. The Court finds that it lacks in personam jurisdiction over the Texas defendants and thus dismissal is required under F.R.Civ.P. 12(b)(2). Alternatively, venue in the Eastern District of Michigan is not authorized under 28 U.S.C. § 1391(b) and thus dismissal under Rule 12(b)(3) is also required. In light of the Court's disposition of the motions to dismiss, it is not necessary to address the Texas defendants' motion to transfer venue to the Southern District of Texas. An appropriate order shall be submitted. NOTES [1] The phrase "Texas defendants" will be used as a shorthand expression to refer to the six Texas defendants who have filed the motions now before the Court. [2] Proof of the absent defendant's membership in the conspiracy could be substituted for the first prong.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518688/	(2008) Lou Garden PRICE, Sr., Plaintiff, v. Carol KOZAK, Nurse Kira Hargan, Warden Tom Carroll, Correctional Medical Services, Mark Forbes, Robert Durnan, Betty Burris, and Chris Malaney, Defendants. Civ. No. 05-871-SLR. United States District Court, D. Delaware. July 28, 2008. MEMORANDUM OPINION SUE L. ROBINSON, District Judge. I. INTRODUCTION Plaintiff Lou Garden Price ("plaintiff"), an inmate at the James T. Vaughn Correctional Center, formerly known as the Delaware Correctional Center ("DCC"), filed this civil rights complaint pursuant to 42 U.S.C. § 1983. Presently before the court are motions for summary judgment filed by State defendants Tom Carroll ("Carroll"), Betty Burris ("Burris"), Raymon Taylor ("R.Taylor")[1], Mark Forbes ("Forbes"), and Robert Durnan ("Durnan") (collectively, "State defendants") and defendant Correctional Medical Services, Inc. ("CMS") with supporting memoranda and plaintiffs response thereto. (D.I.117, 121) Also before the court is plaintiffs motion for extension of time to file a response to the motions. (D.I.125) For the reasons set forth below, the court will grant in part and deny in part the motions for summary judgment and will deny as moot plaintiffs motion for extension of time. II. BACKGROUND Plaintiff filed his original complaint on December 15, 2005, followed by amended complaints on February 6, 2006 and April 12, 2006, respectively. (D.I.2, 11, 13) Plaintiff has clarified the names of defendants through various filings. (D.I.62, 105) On August 25, 2005, and while in the custody of the Pennsylvania Department of Correction ("PDOC"), plaintiff underwent carpel tunnel release surgery.[2] On September 21, 2005, plaintiff was transported from the PDOC to the DCC to serve sentences for crimes he had committed in Delaware. Lieutenant Taylor, ultimately identified as Scott Taylor ("S.Taylor"), and Delaware detectives Forbes and Durnan transported plaintiff to the DCC. Plaintiff alleges that he was handcuffed too tightly during the three hour transfer to the DCC and this caused him extreme pain and duress. Plaintiff alleges that upon arrival at DCC he sought, and was refused, medical treatment from nurses Carol Kozak ("Kozak") and Kira Hargan ("Hargan").[3] He alleges that Chris Malaney ("Malaney"), medical administrator, as well as Burris, operations manager at DCC, failed to provide plaintiff with an immediate examination on September 21, 2005, failed to provide physical therapy, and failed to provide post-operative follow-up.[4] Additionally, CMS refused to provide plaintiff treatment from September 21, 2005 until October 5, 2005, when he "flagged down" medical personnel who prescribed narcotics and a right hand splint. In January 2006, plaintiff was taken to an outside specialist who performed an EMG that revealed permanent damage to plaintiffs right hand.[5] Plaintiff complains of pain shooting through his hand, fingers, wrist, arm, and neck. According to plaintiff, Kozak justified the lack of immediate medical care because she was following the Medical Services and Sick Call Policy ("sick call policy") found at part VIII(A)-(D) of the Inmate Housing Rules for Medium High Security ("MHU housing rules"). Plaintiff contends that the MHU housing rules, that include the sick-call policy, constitutes a CMS policy that amounts to cruel and unusual punishment in violation of the Eighth Amendment and a custom of deliberate indifference to serious medical needs. State defendants move for summary judgment on the bases that they are entitled to Eleventh Amendment immunity in their official capacities; plaintiff failed to exhaust his available administrative remedies pursuant to 42 U.S.C. § 1997e; a § 1983 action cannot be maintained against Carroll and Burris under a theory of respondeat superior; Taylor, Carroll, and Burris had no personal involvement in the alleged incidents; there are no genuine issues of material facts as to Forbes and Durnan's alleged excessive force or failure to protect; plaintiff cannot establish a causal connection between the use of handcuffs and his alleged hand damage; and State defendants are entitled to qualified immunity. CMS moves for summary judgment on the bases that its policies did not cause the constitutional violation at issue; plaintiff cannot demonstrate conduct of deliberate indifference to serious medical needs; plaintiffs state law claims fail; and plaintiff has failed to exhaust his administrative remedies. Plaintiff asks the court to deny the motions on the bases that CMS has a policy of denying medical treatment, he has established CMS' deliberate indifference, and he previously demonstrated exhaustion. III. STANDARD OF REVIEW A court shall grant summary judgment only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of proving that no genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). When determining whether a genuine issue of material fact exists, the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir.2007). "Facts that could alter the outcome are `material,' and disputes are `genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300, 302 n. 1 (3d Cir.1995) (internal citations omitted). If the moving party has demonstrated an absence of material fact, the nonmoving party then "must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S. Ct. 1348 (quoting Fed.R.Civ.P. 56(e)). However, a party opposing summary judgment "must present more than just `bare assertions, conclusory allegations or suspicions' to show the existence of a genuine issue." Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). Indeed, to survive a motion for summary judgment, plaintiff cannot rely merely on the unsupported allegations of the complaint, and must present more than the "mere existence of a scintilla of evidence" in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). IV. DISCUSSION A. Eleventh Amendment Immunity State defendants move for summary judgment from liability in their official capacities pursuant to the Eleventh Amendment. The Eleventh Amendment shields states from suits by individuals absent their consent. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996). The Eleventh Amendment, however, permits suits for prospective injunctive relief against state officials acting in violation of federal law. Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908). "This standard allows courts to order prospective relief, as well as measures ancillary to appropriate prospective relief." Frew v. Hawkins, 540 U.S. 431, 437, 124 S. Ct. 899, 157 L. Ed. 2d 855 (2004) (internal citations omitted). "Federal courts may not award retrospective relief, for instance money damages or its equivalent, if the State invokes its immunity." Id. (citations omitted). Accordingly, the court will grant the motion for summary judgment to the extent that plaintiff seeks monetary damages from State defendants in their official capacity. B. Exhaustion All defendants argue that summary judgment is appropriate because plaintiff failed to exhaust his administrative remedies as is required by the Prison Litigation Reform Act ("PLRA"). The PLRA provides that "[n]o action shall be brought with respect to prison conditions under section 1983 or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see Porter v. Nussle, 534 U.S. 516, 532, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002) ("[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong."). Because an inmate's failure to exhaust under PLRA is an affirmative defense, the inmate is not required to specially plead or demonstrate exhaustion in his complaint. Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007). Failure to exhaust administrative remedies must be pled and proved by the defendant. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir.2002). Under § 1997e(a), "an inmate must exhaust [administrative remedies] irrespective of the forms of relief sought and offered through administrative avenues." Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S. Ct. 1819, 149 L. Ed. 2d 958 (2001). Under Woodford v. Ngo, 548 U.S. 81, 88, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006), exhaustion means proper exhaustion, that is, "a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court." Id. at 2384. CMS makes an identical argument for exhaustion in its current motion for summary judgment as it did in its previously filed motion to dismiss. In denying dismissal on the basis of failure to exhaust administrative remedies, the court was "unpersuaded by CMS's assertion that plaintiff did not sufficiently exhaust internal administrative remedies before bringing suit." (D.I.66) The court noted that plaintiff filed separate grievance forms with three different parties and this convinced it that plaintiff had either exhausted administrative remedies or done so to the best of his ability. (Id.) CMS has not presented any additional evidence in support of its motion for summary judgment. Therefore, the court will deny CMS' motion for summary judgment on the issue of exhaustion. Plaintiff submitted two grievances. Plaintiff filed his first grievance on September 27, 2005. (D.I.2, ex.) Inexplicably, it was denied as exceeding the filing period of seven days from the date of the occurrence, even though it is evident that it was filed within six days. Plaintiff filed a second grievance on September 28, 2005 and, it too, was denied as untimely, even though it was not. (D.I.118, ex. H) The record reflects that plaintiff wrote a letter to the Bureau Chief and explained that he was told that there was no official appeal form for grievances. (D.I.2, ex.) Plaintiff also wrote to numerous other prison officials, but received no response. In reviewing the documents of record, the court finds that plaintiff had either exhausted administrative remedies or did so to the best of his ability. Accordingly, the court will deny State defendants' motion for summary judgment on the issue of exhaustion. C. Respondeat Superior Defendants Carroll and Burris argue that they are entitled to summary judgment because they were not personally involved in the transport of plaintiff to the DCC or in the administration of medical care and treatment to plaintiff after he arrived at the DCC. Plaintiff did not address the respondeat superior issue in his response to the State defendants' motion. Liability in a § 1983 action cannot be predicated solely on the operation of respondeat superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations omitted). However, a plaintiff may set forth a claim for supervisory liability under § 1983 if he "(1) identif[ies] the specific supervisory practice or procedure that the supervisor failed to employ, and show[s] that (2) the existing custom and practice without the identified, absent custom or procedure created an unreasonable risk of the ultimate injury, (3) the supervisor was aware that this unreasonable risk existed, (4) the supervisor was indifferent to the risk; and (5) the underling's violation resulted from the supervisor's failure to employ that supervisory practice or procedure." Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001) (citing Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir.1989)). It is not enough for a plaintiff to argue that the alleged injury would not have occurred if the supervisor had "done more." Id. He must identify specific acts or omissions of the supervisor that evidence deliberate indifference and establish a link between the act or omission and the ultimate injury. Id. Plaintiff testified that he named former Warden Carroll as a defendant because he is the warden, he wrote a complaint to him, and medical grievances go to his office. (D.I. 124 at 17) He named Burris as a defendant because she oversees the correctional staff and grievances go through her. (Id. at 21-22) It is apparent from plaintiffs testimony that Burris and Carroll are named as defendants solely based upon their supervisory positions. The record does not support any other conclusion. Therefore, the court will grant State defendants Burris and Carroll summary judgment on the issue of respondeat superior.[6] D. Eighth Amendment Claims 1. Excessive Force and Failure to Protect State defendants Durnan and Forbes argue they are entitled to summary judgment as plaintiff cannot prove they intentionally subjected him to the unnecessary and wanton infliction of pain or that they failed to protect him. Plaintiff did not address either issue in his response to the State defendants' motion. a. Relevant Facts Plaintiff was transported to the DCC approximately three weeks after his carpel tunnel surgery. He dreaded the transport because he knew he would be handcuffed. (D.I. 124 at 83) Medical records indicate that plaintiff was examined on September 14, 2005, that he had a little discomfort in his thumb, but for the most part the tingling had subsided. (D.I.120, ex. B) On the same day, plaintiff was released to resume full activities and see his physician as needed. (Id.) Plaintiff did not discuss his handcuffing concerns with his physician. (D.I. 124 at 73) Transfer information recommended tight security as plaintiff is serving two life sentences. (D.I.120, ex. D) S. Taylor, Durnan, and Forbes were the transporting officers and present at the time of transfer. Plaintiff testified that a PDOC officer told defendants that plaintiff was wearing a brace because he had surgery. (D.I. 124 at 97-98) He did not recall the PDOC officer stating that plaintiff should not be cuffed or restrained. (Id. at 99) Plaintiff told the three defendants about his surgery, that he was still experiencing discomfort, and that the stun belt was sufficient. (Id. at 80) He was told defendants had no choice about the cuffs because he was being transported to the DCC. (Id. at 81) Plaintiffs brace was removed in preparation for his transport to the DCC. (D.I. 124 at 81) The cuffs were tight and covered with a black box. (Id.) Plaintiff believes that Durnan helped S. Taylor, but it was S. Taylor who placed the stun belt and handcuffs on plaintiff. (D.I. 124 at 78-79) After he was handcuffed, a nurse handed the officers plaintiffs medical file and medication. (Id. at 90) Plaintiff saw the nurse, but he did not complain that the handcuffs were too tight or that he was in pain. (Id.) During the three hour trip to the DCC plaintiff complained, maybe a dozen times, that the cuffs were too tight, but was told that he would have to "bear it." (Id. at 91) The cuffs were never checked. (Id.) Plaintiff had been cuffed before during a previous transfer and he testified that the same restraints were used; that it was only different because he had recently had surgery. (Id. at 84) He believed that other methods of restraint should have been used. (Id. at 87) The cuffs were removed as soon as plaintiff arrived at the receiving room at the DCC. (D.I.102) He asked for medical attention and approximately one-half hour later was seen by intake nurse Kozak. (Id. at 102-03) Plaintiff testified that his right wrist/hand was "kind of like swollen", his hand was blue, there were deep wedges inside his right wrist, his hand was throbbing, and he was in real pain. (Id. at 103-104) Plaintiff's September 27, 2005 grievance states that the transporting officers were aware of the surgery yet kept him handcuffed very tightly for three hours and since that time the pain in his right hand "has been unbearable to the point of not being able to use it, it is numb and the thumb keeps giving out." (D.I.2, ex.) b. Excessive Force When analyzing an excessive force claim under the Eighth Amendment, the court must determine "whether the force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Whitley v. Albers, 475 U.S. 312, 320-21, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1986) (citations omitted). Use of force is actionable under § 1983 when it exceeds "that which is reasonable and necessary under the circumstances." Davidson v. O'Lone, 752 F.2d 817, 827 (3d Cir.1984). The court must determine whether the force was applied in good faith by weighing the following factors: (1) the need for the application of force, (2) the relationship between the need and the amount of force that was used, (3) the extent of the injury inflicted, (4) the threat reasonably perceived by the responsible officials, and (5) the efforts made to temper the severity of a forceful response. Davis v. Carroll, 390 F. Supp. 2d 415, 419 (D.Del.2005) (citing Hudson v. McMillian, 503 U.S. 1, 7, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992)). It cannot be said that Forbes and Durnan used excessive force. Neither Forbes nor Durnan placed plaintiff in handcuffs. For this reason alone, they are entitled to summary judgment as to the excessive force claim. c. Failure to Protect To prevail on an Eighth Amendment failure to protect claim, plaintiff is required to show that (1) he is incarcerated under conditions posing a substantial risk of serious harm (the objective element), and (2) prison officials acted with deliberate indifference, i.e., that prison officials knew of and disregarded an excessive risk to inmate health or safety (the subjective element). See Farmer v. Brennan, 511 U.S. 825, 833-34, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994); see also Griffin v. DeRosa, 153 Fed.Appx. 851 (3d Cir.2005). To establish deliberate indifference, a plaintiff must show that the individual was subjectively aware of the risk of harm to the plaintiff's health or safety, and disregarded it. See id. at 837, 114 S. Ct. 1970; Natale v. Camden County Corr. Facility, 318 F.3d 575, 582 (3d Cir.2003). "The knowledge element of deliberate indifference is subjective, not objective knowledge, meaning that the official must actually be aware of the existence of the excessive risk; it is not sufficient that the official should have been aware." Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir.2001). Knowledge may be shown where the official has actual notice of the risk, Nami v. Fauver, 82 F.3d 63, 67-68 (3d Cir.1996), or where the risk was "longstanding, pervasive, well-documented, or expressly rioted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus must have known about it." Farmer, 511 U.S. at 842, 114 S. Ct. 1970. With regard to the failure to protect issue, Forbes and Durnan argue that plaintiff cannot prove that the use of handcuffs posed a substantial risk of serious harm. The record reflects that defendants were aware that plaintiff had surgery, that he complained over a dozen times during the three hour drive that S. Taylor handcuffed him too tightly, but not once were the cuffs checked. Construing the facts in the light most favorable to plaintiff as the court must, a reasonable person could find that recent surgery coupled with tight handcuffs could pose a substantial risk of serious harm. Nonetheless, Forbes and Durnan argue that plaintiff cannot show that they had the requisite culpable state of mind for a failure to protect claim. The record reflects that when plaintiff complained about the tight cuffs, defendants responded they had no choice because he was being transported to the DCC. Indeed, the PDOC recommended tight security during the transfer in light of plaintiffs two life sentences. Plaintiffs response fails to address the failure to protect issue, and he presented no evidence in his favor to rebut a finding that defendants' actions were taken, not to harm plaintiff but, rather, to transport plaintiff to the DCC in a manner for the safety of plaintiff, prison employees, and the public. Plaintiff failed to make a sufficient showing on an essential element of the failure to protect issue and, therefore, the court will grant Forbes and Durnan's motion for summary judgment on this issue. 2. Medical Needs CMS argues that its policies did not cause the constitutional violation at issue and, further, that there is no conduct demonstrating deliberate indifference to plaintiffs serious medical needs. State defendants argue that they afforded plaintiff access to medical care and, therefore, they are entitled to summary judgment. Plaintiff relies upon the MHU housing rules, the memorandum of agreement between the United States Department of Justice ("DOJ") and the State of Delaware, and a letter to Delaware governor Ruth Ann Minner regarding the DOJ's investigation to support his position that CMS has a known pattern of "incorrigible, inhumane medical care."[7] (D.I.129) a. Relevant Facts Plaintiff's handcuffs were removed upon his arrival at DCC receiving. (D.I. 124 at 102) He asked to see a doctor and was told by a sergeant that medical would soon be there. (Id.) Plaintiff was examined by nurse Kozak within thirty minutes of his arrival. (Id. at 102-103) He testified that he noticed "ligatures" and marks on his wrists and alerted her to the marks on his wrist. (Id. at 104). The intake sheet notes that plaintiff did not need housing in the infirmary for a pre-booking injury and plaintiff signed the sheet confirming the same. (D.I.120, ex. E) The physician box is checked. (Id.) Plaintiff requested pain medication and was told by Kozak, "no," that he would have to be seen by a doctor before she could give him the medication, and he would have to submit a sick call slip. (Id. at 105, 223) Plaintiff testified that he was in obvious pain, but Kozak would not give him medication. (Id. at 224) Plaintiff testified that he submitted a sick call slip on September 21, 2005, but he does not have documentation of the slip. (Id. at 192) This sick call slip referred to his pain and that plaintiff needed to see a doctor. (Id. at 194) He was not seen on September 22, 2005, and put in another sick call slip but, again, does not have documentation of it. (Id.) As soon as plaintiff was housed in Building 21, he submitted a sick call slip. (Id. at 108-109). The sick call slip, dated September 25, 2005, states, "pain from carpal tunnel surgery, (need brace from my property). need treatment for toenail fungus infection. prescription for migraines. bottom bunk status until pain heals in hand (cervical neck pain is cured)." (D.I.123, ex. B) The slip makes no mention that plaintiff is not receiving his pain medication. (D.I. 124 at 196) Plaintiff testified that he received his blood pressure medication in receiving and that he probably received some pain medication within two days, but that doses were erratic. (D.I. 124 at 110, 178-179). For example, three days would go by without receiving pain medication. (Id. at 184) Plaintiff felt that Kozak and Hogan were punishing him for consistently demanding treatment. (Id. at 183.) The actions of Kozak and Hogan occurred sometime between September 21 to October 5, 2005. (Id. at 239) From the prison medication records it appears that plaintiff received Zantac and Motrin on September 21, 2005, and that plaintiff continued to receive all medication including Tenormin, Zantac, Motrin, Seroquel, and Sinequan on a fairly regular basis in September 2005 and October 2005. (D.I.123, ex. C) Plaintiff submitted another sick call slip on September 29, 2005. (D.I.112) The top of the slip states "have not seen by doctor yet" and the body of the slip states, "post operation pain in right hand (aggravated from handcuffs during transfer); diagnosed w/cervical neck arthritis painneed bottom bunk status paper; migraine headache treatment; fungus under toenails spreading/need treatment; herpes outbreak prevention/treatment needed; carpal tunnel follow thru treatment needed." (Id.) Plaintiff complained to nurse practitioner Sheryl Ott ("Ott") that he was not receiving his pain medication and on October 5, 2005, she conducted a quick examination, questioned plaintiff, and plaintiff began receiving his pain medication. (Id. at 185, 186) Ott gave him "everything", including his brace which had been confiscated. (Id.) Plaintiff filed a medical grievance on October 11, 2005, complaining that his previously submitted sick call slips were being ignored. (D.I.2, ex.) Plaintiff wrote to Ott on October 25, 2005, complaining that he was constantly denied medication and medical treatment. (D.I.2, ex). He complained that he had suffered and been denied treatment for thirty-three days. (Id.) Plaintiff was seen on October 26, 2005. (D.I.112) Physician order sheets reflect that plaintiff received medical treatment on October 26, November 4, November 11, November 25, and November 30, 2005. (D.I.73) An EMG was performed on January 4, 2006. (D.I.73) The EMG results concluded "bilateral median neuropathy at the wrist, electrophysiologically moderate, no electrophysiologic evidence of a right cervical radiculopathy." (Id.) Dr. Ott explained the results to plaintiff and told him that he had permanent damage in his wrist. (D.I. 124 at 128-129) No nurse or doctor told plaintiff that the handcuffs caused the neuropathy, but plaintiff believes they did. (D.I. 124 at 131, 134) Additionally, in 2006, plaintiff received treatment on January 10 and 25, February 23, March 14, May 16, June 14, June 27 and 28. (Id.) The MHU housing rules for DCC, approved by the warden, set forth the procedure for medical services and sick call. (D.I.88, § VIII) The sick call police, § VIM is, states that sick call slips shall be placed in the secured sick call box, which will be emptied daily by the medical services provider. (Id.) Sick call normally takes place Monday through Friday, including holidays, but inmates with medical emergencies are to immediately notify the housing unit staff. (Id.) Prescribed medication is dispensed at designated locations by medical staff. (Id.) CMS' policy and procedures manual for the DCC contains a plan to provide 24-hour emergency medical, mental health and dental care to inmates. (D.I.116) Emergency care is defined as "care for an acute illness or unexpected health need that cannot be deferred until the next scheduled sick call or clinic". (Id.) It is plaintiff's understanding that the MHU housing rules for medical care are also CMS' policies, based upon the § VIII's title "Medical Services". (D.I. 124 at 163-164) Plaintiff testified that "medical services" stands for "MS"; "it just takes out the C." (Id. at 164) Plaintiff testified that when he first arrived at the DCC he told the sergeant and Kozak that he was in pain and that she had his medication, but she refused to dispense it. (Id. at 167) He infers that the situation was a medical emergency and did not require a sick call slip, and testified that the inmates are not told what a medical emergency is. (Id. at 167-168) He was told in medical that a medical emergency is "if you're bleeding, if you're having breathing problems, or a heart attack." (Id. at 169) Plaintiff also testified that he had sick call slips in for forty days that had not been answered. (Id. at 168) b. Deliberate Indifference State defendants argue that plaintiff never states that the transporting officers denied him access to medical care and, further, that plaintiff received medical attention upon his arrival at DCC. CMS argues that the MHU housing policies or anything therein were the policy or procedures enacted by CMS to address emergency sick call rights. Additionally, it argues that plaintiff has no evidence that relevant CMS policy caused the alleged constitutional violations and, therefore, it cannot be held liable as a matter of law. Plaintiff argues that the MHU housing policies became CMS' custom and policy when it contracted with the Delaware Department of Correction to provide medical services. Plaintiff argues that, as a prisoner, he is bound or forced to follow prison rules. He contends that when he requested medication and medical treatment on September 21, 2005, Kozak referred to the MHU housing policies for submitting a sick call slip, not to CMS' policies, to deny him prompt medical care and medication. Plaintiff argues that the policy or custom of CMS employees amounted to denial and delay of prompt medical treatment. (D.I. 129) Plaintiffs response to the motions for summary judgment did not address the medical needs issue as to defendants Forbes and Durnan. The Eighth Amendment proscription against cruel and unusual punishment requires that prison officials provide inmates with adequate medical care. Estelle v. Gamble, 429 U.S. 97, 103-105, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). However, in order to set forth a cognizable claim, an inmate must prove (1) a serious medical need and (2) acts or omissions by prison officials that indicate deliberate indifference to that need. Estelle v. Gamble, 429 U.S. at 104, 97 S. Ct. 285; Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.1999). A prison official is deliberately indifferent if he knows that a prisoner faces a substantial risk of serious harm and fails to take reasonable steps to avoid the harm. Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). A prison official may manifest deliberate indifference by "intentionally denying or delaying access to medical care." Estelle v. Gamble, 429 U.S. at 104-05, 97 S. Ct. 285. "[A] prisoner has no right to choose a specific form of medical treatment," so long as the treatment provided is reasonable. Harrison v. Barkley, 219 F.3d 132, 138-140 (2d Cir.2000). An inmate's claims against members of a prison medical department are not viable under § 1983 where the inmate receives continuing care, but believes that more should be done by way of diagnosis and treatment and maintains that options available to medical personnel were not pursued on the inmate's behalf. Estelle v. Gamble, 429 U.S. 97, 107, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). Moreover, allegations of medical malpractice are not sufficient to establish a Constitutional violation. White v. Napoleon, 897 F.2d 103, 108-09 (3d Cir.1990) (citations omitted): see also Daniels v. Williams, 474 U.S. 327, 332-34, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986) (negligence is not compensable as a Constitutional deprivation). Finally, "mere disagreement as to the proper medical treatment" is insufficient to state a constitutional violation. See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir.2004) (citations omitted). When a plaintiff relies on the theory of respondeat superior to hold a corporation liable, he must allege a policy or custom that demonstrates such deliberate indifference. Sample v. Diecks, 885 F.2d 1099, 1110 (3d Cir.1989); Miller v. Correctional Med. Sys., Inc., 802 F. Supp. 1126, 1132 (D.Del.1992). In order to establish that CMS is directly liable for the alleged constitutional violations, plaintiff "must provide evidence that there was a relevant [CMS] policy or custom, and that the policy caused the constitutional violation[s] [plaintiff] allege[s]." Natale v. Camden County Corr. Facility, 318 F.3d 575, 584 (3d Cir.2003) (because respondeat superior or vicarious liability cannot be a basis for liability under 42 U.S.C. § 1983, a corporation under contract with the state cannot be held liable for the acts of its employees and agents under those theories). Assuming the acts of a CMS employee have violated a person's constitutional rights, those acts may be deemed the result of a policy or custom of the entity for whom the employee works, thereby rendering the entity liable under § 1983, where the inadequacy of existing practice is so likely to result in the violation of constitutional rights that the policymaker can reasonably be said to have been deliberately indifferent to the need. See Natale, 318 F.3d at 584 (citations omitted). "`Policy is made when a decisionmaker possess[ing] final authority to establish ... policy with respect to the action issues an official proclamation, policy or edict.'" Miller v. Corr. Med. Sys., Inc., 802 F. Supp. 1126, 1132 (D.Del.1992) (alteration in original) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). "Custom, on the other hand, can be proven by showing that a given course of conduct, although not specifically endorsed or authorized by law, is so well-settled and permanent as virtually to constitute law." Id. (citing Andrews, 895 F.2d at 1480; Fletcher v. O'Donnell, 867 F.2d 791, 793-94 (3d Cir.1989)). The medical records indicate that plaintiff was released from medical care by his Pennsylvania physician following his carpel tunnel surgery. Upon his arrival at the DCC he was examined within thirty minutes, complained of pain, but was told he was required to submit a sick call slip in order to see a physician. According to his own testimony, within two days, plaintiff received pain medication as well as all other prescribed medications, and within two weeks was examined by a nurse practitioner. He was examined by a physician approximately five weeks after his arrival at the DCC. While plaintiff may have believed his medical complaints amounted to an emergency, the court cannot say that they met the definition for emergency care as outlined in CMS policies. Even construing the facts in the light most favorable to plaintiff, the evidence shows that in light of his recent surgery and complaints of pain, at most, CMS may have been negligent in not dispensing medication and having him examined sooner than it did. Negligence, however, if it exists and is proven, does not rise to the level of a constitutional violation. See Estelle, 429 U.S. at 107, 97 S. Ct. 285; Rouse, 182 F.3d at 197. Plaintiff has failed to make a sufficient showing as to necessary elements of his constitutional claims for deliberate indifference to a serious medical need. Accordingly, the court will grant State defendants' and CMS' motion for summary judgment as to this issue.[8] E. State Law Claims CMS moves for summary judgment to the extent that plaintiff attempts to allege a state claim for medical malpractice. In Delaware, medical malpractice is governed by the Delaware Health Care Negligence Insurance and Litigation Act. 18 Del. C. § 6801(7). When a party alleges medical negligence, Delaware law requires the party to produce expert medical testimony detailing: "(1) the applicable standard of care, (2) the alleged deviation from that standard, and (3) the causal link between the deviation and the alleged injury." Bonesmo v. Nemours Found., 253 F. Supp. 2d 801, 804 (D.Del.2003) (quoting Green v. Weiner, 766 A.2d 492, 494-95 (Del.2001)) (internal quotations omitted); 18 Del. C. § 6853. Plaintiff did not submit expert testimony to support a medical negligence claim. Accordingly, the court will grant CMS' motion for summary judgment to the extent that plaintiff alleges a medical negligence claim under Delaware law. V. CONCLUSION Based upon the foregoing analysis, the court will deny the motions for summary judgment as to the exhaustion issue and grant them in all other respects. The court will deny as moot plaintiffs motion for extension of time. An appropriate order will issue. ORDER At Wilmington this 28th day of July 2008, for the reasons set forth in the memorandum opinion issued this date; IT IS HEREBY ORDERED that: 1. State defendants' motion for summary judgment is denied as to the exhaustion issue and granted in all other respects. (D.I.117) 2. Correctional Medical Services, Inc.'s motion for summary judgment is denied as to the exhaustion issue and granted in all other respects. (D.I.121) 3. Plaintiffs motion for extension of time to file response to motions for summary judgment is denied as moot. (D.I. 125) 4. At the close of the case the clerk of the court is directed to enter judgment in favor of defendants Tom Carroll, Correctional Medical Services, Mark Forbes, Robert Durnan, and Betty Burris, and against plaintiff. NOTES [1] The original complaint named Lieutenant Taylor as a defendant, and service was improperly accepted by R. Taylor. Subsequent to the State defendants filing their motion for summary judgment, the court granted a motion to amend the complaint on January 8, 2008, which corrected the name of Lt. Taylor to Scott Taylor ("S.Taylor"). (D.I.133) The order notes that R. Taylor is not a party to the case. S. Taylor was recently dismissed from the case when plaintiff failed to timely submit a USM-285 form. (D.I.135) Plaintiff recently submitted a USM-285 form to effect service upon S. Taylor. (D.I.136) The court recently reinstated S. Taylor as a defendant in a separate order. [2] Carpal tunnel syndrome is defined as chronic pain and paresthesia in the hand in the area of distribution of the median nerve, caused by compression of the median nerve by fibers of the flexor retinaculum and associated with repetitive motion. Stedman's Medical Dictionary 130 (2d ed.2004). [3] To date, service has not been effected upon Kozak and Hargan. [4] To date, service has not been effected upon Malaney. [5] Electromyogram. Stedman's Medical Dictionary 258 (2d ed.2004). [6] The court will not address State defendants R. Taylor, Carroll, and Burris' motion for summary judgment on the issue of personal involvement inasmuch as R. Taylor is not a defendant in this action and the court will grant Carroll and Burris summary judgment as there is no supervisory liability under § 1983. Moreover, participation in the after-the-fact review of a grievance is not enough to establish personal involvement. See, e.g., Brooks v. Beard, 167 Fed.Appx. 923, 925 (3d Cir.2006) (allegations that prison officials and administrators responded inappropriately to inmate's later-filed grievances do not establish the involvement of those officials and administrators in the underlying deprivation). See also Cole v. Sobina, Civ. No. 04-99J, 2007 WL 4460617 (W.D.Pa.2007); Ramos v. Pennsylvania Dep't of Corr., Civ. No. 06-1444, 2006 WL 2129148 (M.D.Pa.2006) and Jefferson v. Wolfe, Civ. No. 04-444 ERIE, 2006 WL 1947721 (W.D.Pa.2006). Cf. Wilson v. Horn, 971 F. Supp. 943, 947 (E.D.Pa.1997), affd, 142 F.3d 430 (3d Cir.1998) (prison officials' failure to respond to inmate's grievance does not state a constitutional claim). [7] The Civil Rights Division of the DOJ conducted an investigation of five Delaware prison facilities pursuant to the Civil Rights of Institutionalized Persons Act, which authorizes the federal government to identify and root out systemic abuses. The investigation found substantial civil rights violations at four of the five facilities: Delores J. Baylor Women's Correctional Institution, Howard R. Young Correctional Institution, DCC, and Sussex Correctional Institution. The investigation resulted in the entry of a memorandum of agreement on December 29, 2006, between the DOJ and the State of Delaware regarding the four institutions. Paragraph I.F. of the agreement provides that it may not be used as evidence of liability in any other legal proceeding. [8] The court will not address the other issues raised in State defendants' motion for summary judgment.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518728/	953 S.W.2d 596 (1997) 59 Ark.App. 108 Karen (Benson) TURNER, Appellant, v. Paul BENSON, Appellee. No. CA 97-359. Court of Appeals of Arkansas, Division III. October 15, 1997. 597 Judson C. Kidd, Little Rock, for Appellant. Rita B. Atkinson, Richard W. Atkinson, Conway, for Appellee. CRABTREE, Judge. The parties in this case were divorced in May of 1992 and custody of their two minor children, Christal and Ben, was awarded to appellant, Karen Turner. Since their divorce, both appellant and appellee have remarried, and Christal has reached majority. In November of 1995, appellee sought custody of Ben, who was 13 years old at the time. After a hearing on August 1, 1996, the chancellor awarded custody to appellee. Appellant contends that the order changing custody was clearly against the preponderance of the evidence. We disagree and affirm. In deciding whether a change of custody is warranted, a chancellor must first determine whether there has been a material change in the circumstances of the parties since the most recent custody decree. Schwarz v. Moody, 55 Ark.App. 6, 928 S.W.2d 800 (1996). If a material change has occurred, the chancellor determines custodial placement with the primary consideration being the best interest of the child. Riley v. Riley, 45 Ark.App. 165, 873 S.W.2d 564 (1994). Although chancery cases are reviewed de novo on appeal, we will not disturb a chancellor's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Stone v. Steed, 54 Ark.App. 11, 923 S.W.2d 282 (1996). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996). Since the question turns largely upon the credibility and demeanor of witnesses, this court defers to the superior position of the chancellor to make such determinations. Schwarz, supra. The deference to be accorded to the chancellor is even greater in cases involving child custody. In those cases a heavier burden is placed on the chancellor to utilize to the fullest extent all of his powers of perception in evaluating the witnesses, their testimony, and the child's best interest. We have often stated that we know of no cases in which the superior position, ability, and opportunity of the chancellor to observe the parties carry as great a weight as those involving child custody. (Citations omitted.) Milum v. Milum, 49 Ark.App. 3, 5, 894 S.W.2d 611, 612 (1995); see Fitzpatrick v. Fitzpatrick, 29 Ark.App. 38, 776 S.W.2d 836 (1989). In his petition, appellee alleged that appellant had begun using her husband's surname (Turner) as Ben's surname, that she had consistently interfered with appellee's visitation schedule, and that she had made derogatory statements about appellee in Ben's presence. Appellee pointed to the chancellor's prior admonishments that Christal and Ben needed healthy relationships with both parents and argued that the above actions harmed his relationship with Ben. Several witnesses testified on behalf of both parties at the hearing. Appellee and others testified to the good relationship he had with Ben and the animosity that Christal had developed toward him. Dr. DeYoub, a court appointed psychologist, evaluated the parties and the children, and his reports 598 were admitted into evidence. Of critical importance were his remarks regarding the relationship between appellee and Christal: She did not make a single statement about Mr. Benson. I found the interview with her to be quite chilling. She rejects her father without the slightest display of emotion. . . . . What happened to Christal is a serious matter, because that relationship is gone with her dad and time and maturity will only determine if she will ever change. The threat that Ben will do the same is a real one. Dr. DeYoub indicated that a change of custody was a viable option, and that the court could do so immediately or wait to determine whether matters were otherwise resolved. Dr. DeYoub's report stated that if the problems persisted, appellee should gain custody of Ben. He also opined that if custody were changed immediately, Ben's relationship with appellant would remain strong, and his relationship with appellee would strengthen. Dr. Tanner, a counselor hired by appellant, testified that Ben had a strained relationship with and feared appellee. Dr. Tanner recommended that custody remain unchanged. Although appellant raises only one point on appeal, five points of argument are made thereunder. Two of these arguments are challenges to the chancellor's consideration of the evidence. First, appellant contends that the change of custody was not warranted in light of appellee's testimony that he and Ben enjoyed a good relationship. Second, appellant argues that Dr. DeYoub, the attorney ad litem, and Dr. Tanner unanimously recommended that Ben stay with appellant. This particular statement is not completely accurate. As stated, Dr. DeYoub's opinion was that a change of custody was an option. The ad litem did not testify at trial, but did submit a letter in support of appellant's motion to reconsider. However, no hearing was held on the motion. Only Dr. Tanner, who, as the chancellor recognized, was hired by appellant, recommended that custody not be disturbed. The chancellor was in a superior position to judge the credibility and demeanor of the many witnesses at the hearing, and in doing so she utilized to the fullest extent all of her powers of perception in evaluating the witnesses, their testimony, and the child's best interest, Milum, supra, and we cannot say that her findings were erroneous. Appellant also contends that Dr. DeYoub's report clearly reflected a desire on Ben's part to live with appellant, and that the chancellor erred in not considering this preference. While the preference of the child is a factor to be considered when making a custody determination, Anderson v. Anderson, 18 Ark.App. 284, 715 S.W.2d 218 (1986), the chancellor has the discretion to decline to give weight to the child's preference, and it is not binding upon the court. Malone v. Malone, 4 Ark.App. 366, 631 S.W.2d 318 (1982). We cannot say that the chancellor abused that discretion in the present case. Appellant's fourth contention is that the chancellor erred in changing custody when the evidence showed that the good relationship between Ben and appellee had not been adversely affected. The chancellor stated that her concerns stemmed from appellee's poor relationship with Christal and the fear that Ben's relationship with appellee would suffer the same fate if custody were not changed. Appellant was admonished three years prior to the custody hearing that she was alienating Ben from appellee. An award of custody to one parent does not lessen the noncustodial parent's responsibility to the child, nor does it affect his right as a parent to provide guidance and to participate in decisions affecting the welfare of the children. Clark v. Reiss, 38 Ark.App. 150, 831 S.W.2d 622 (1992); see Provin v. Provin, 264 Ark. 551, 572 S.W.2d 853 (1978). Whether one parent is alienating a child from the other is an important factor to be considered in change of custody cases, for, just as the chancellor noted below, a caring relationship with both parents is essential to a healthy upbringing. The testimony of several witnesses left the chancellor with the clear impression that Ben was happy during visitation *599 with appellee, but was uncomfortable in expressing his enjoyment when he returned to appellant. Former spouses are often hostile to one another, and it is unfortunate when their children are forced to bear the brunt of this bitterness. This type of alienation, knowingly or otherwise, can hardly be said to be in the best interest of the child. Riley, supra. Lastly, appellant argues that since there was evidence of a good relationship between Ben and appellee, the chancellor must have changed custody solely to punish appellant. Appellant points only to statements made by the court regarding the inappropriateness of allowing Ben to choose which name he should use at such a young age. It is important to note that while the chancellor did have a strong opinion as to the way appellant dealt with the situation, her statements, as abstracted by the parties, were well intentioned and warranted. No evidence of punishment was presented. The chancellor made a difficult decision based on extensive and varied testimony. Because she was in a better position to determine the credibility of witnesses and the best interests of the child, and because her findings are supported by the evidence, we affirm. ROBBINS, C.J., and MEADS, J., agree.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518762/	953 S.W.2d 819 (1997) Stephen Joseph VISOSKY, Appellant, v. The STATE of Texas, Appellee. No. 13-96-380-CR. Court of Appeals of Texas, Corpus Christi. August 21, 1997. 820 Bill Ewert, Jr., Kingsville, for Appellant. Roy C. Turcotte, Sarita, for State. Before SEERDEN, C.J., and CHAVEZ and RODRIGUEZ, JJ. OPINION RODRIGUEZ, Justice. A jury found appellant, Steven Joseph Visosky, guilty of criminal trespass.[1] During the punishment stage of the trial, the trial court accepted an agreement between the State and appellant that appellant be placed on deferred adjudication.[2] Appellant raises three points of error claiming the order of deferred adjudication is void because he never pled guilty; the court erred in the admission of evidence; and that the evidence is legally insufficient to support his conviction. Citing McFarland v. State, 727 S.W.2d 43 (Tex.App.San Antonio 1987, no writ), the State contends this Court does not have jurisdiction over this appeal because the purported judgment does not adjudicate appellant's guilt, and no appeal lies from an order of deferred adjudication. This issue was decided adversely to the State in Watson v. State, 924 S.W.2d 711, 714 (Tex.Crim.App.1996). As here, the State in Watson argued that the appellate court should dismiss the appeal for want of jurisdiction. The Watson court relied on its previous decision in Dillehey v. State, 815 S.W.2d 623 (Tex.Crim.App.1991), and held that the effect of article 42.12 is to make deferred adjudication orders appealable even though guilt has not been adjudicated. However, appeals deriving from article 42.12 are restricted by rule 40(b)(1) of the rules of appellate procedure. Watson, 924 S.W.2d at 713; Dillehey v. State, 815 S.W.2d at 626. Rule 40(b)(1) provides that any defendant who has been convicted on his plea of guilty or nolo contendere and whose punishment has been assessed by the trial judge in accordance with a recommendation of the prosecuting attorney may only complain on appeal of those matters allowed by the trial judge or raised by written motion filed and ruled upon prior to trial. TEX.R.APP. P. 40(b)(1) (emphasis added). In the present case, rule 40(b)(1) does not restrict appellant's ability to present this appeal because he never pled guilty or nolo contendere. The State's claim that we have no jurisdiction is overruled. In his first point of error, appellant asserts the judgment of the trial court granting deferred adjudication was void ab initio. The Austin Court of Appeals recently addressed this issue in Rodriguez v. State, 939 S.W.2d 211 (Tex.App.Austin 1997, no pet.). Rodriguez is directly on point. In that case, the defendant pled not guilty to the offense of indecency with a child by exposure. The jury found him guilty and thereafter, the trial court deferred adjudication and placed him on community supervision. Rodriguez, 939 S.W.2d at 213. The Austin Court of Appeals addressed as unassigned error, the authority of the trial court to defer adjudication of guilt after the jury's verdict. In a well reasoned opinion, the court concluded the trial court erred in entering an order placing the defendant on deferred adjudication. Rodriguez, 939 S.W.2d at 221. We agree with this decision and apply it here. The deferred adjudication statute provides that "the judge may, after receiving a plea of guilty or plea of nolo contendere," grant a defendant deferred adjudication. TEX. 821 CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (Vernon Supp.1997) (emphasis added). The option of deferred adjudication by its very terms is limited to those defendants who actually plead guilty or nolo contendere before the court after waiving a jury trial. Rodriguez, 939 S.W.2d at 221; Reed v. State, 644 S.W.2d 479, 483 (Tex.Crim.App.1983). Appellant here did not plead guilty or nolo contendere. Moreover, appellant had a trial, and was found guilty. The very essence of deferred adjudication is that a defendant is not found guilty and is not convicted of any offense. Rodriguez, 939 S.W.2d at 221 (citing McNew v. State, 608 S.W.2d 166, 172 (Tex.Crim.App.1978)). There is a technical, but important distinction between sections 3(a) and 5(a) of article 42.12. Section 3(a) is titled, "Judge Ordered Community Supervision," and provides that the trial court, "after conviction or a plea of guilty or nolo contendere, may suspend the imposition of the sentence and place the defendant on community supervision ..." TEX.CODE CRIM. PROC. ANN. art. 42.12, § 3(a) (Vernon Supp.1997) (emphasis added). On the other hand, § 5(a), titled "Deferred Adjudication; Community Supervision," provides that the court may "defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision." Tex.Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp.1997) (emphasis added). The phrase "without entering an adjudication of guilt" is omitted from § 3(a), just as the phrase "after conviction" is not contained in § 5(a). Thus, while § 3(a) permits the court to place a defendant on community supervision and may do so after the defendant has been convicted or enters a plea, a plain reading of § 5(a) indicates the legislature did not intend for a defendant to be eligible for deferred adjudication if he (1) has been convicted or (2) did not plea guilty or nolo contendere. In the present case, appellant was convicted on his plea of not guilty and he never subsequently pled guilty or nolo contendere. The jury's verdict was not set aside, nor was appellant's plea of not guilty withdrawn. Accordingly, the trial court was not authorized to place appellant on deferred adjudication. If a punishment is not authorized by law, the portion of the sentence imposing that punishment is void. Heath v. State, 817 S.W.2d 335, 336 (Tex.Crim.App. 1991); Ex parte Johnson, 697 S.W.2d 605, 606-607 (Tex.Crim.App.1985). Point of error number one is sustained. Generally, an error in assessing community supervision or deferred adjudication would require us to reverse and remand with orders that the trial court withdraw appellant's plea and that appellant replead to the indictment. Heath, 817 S.W.2d at 337. However, we will not do so in this case due to our disposition of point of error number three. Appellant was indicted for trespassing on Kenedy Memorial Foundation property which is located within the Kenedy Ranch. In his third point of error, appellant claims the evidence is legally insufficient to prove he entered upon property of the Kenedy Memorial Foundation. When we review a legal sufficiency of the evidence point of error, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Patrick v. State, 906 S.W.2d 481, 486 (Tex.Crim.App.1995). The standard is the same for both direct and circumstantial evidence cases. Earhart v. State, 823 S.W.2d 607, 616 (Tex.Crim.App.1991). We measure the legal sufficiency of the evidence against the indictment as incorporated into the jury charge. Fisher v. State, 887 S.W.2d 49, 55 (Tex.Crim.App.1994); Benson v. State, 661 S.W.2d 708, 715 (Tex.Crim.App.1982) (opinion on rehearing), cert. denied, 467 U.S. 1219, 104 S. Ct. 2667, 81 L. Ed. 2d 372 (1984). The State's only evidence regarding entry onto the Foundation's property was the testimony of Officer Michael Davis Fain, who has been with the Texas Parks and Wildlife Department for just under eighteen years. Officer Fain has lived in Sarita, Kenedy County, Texas for fourteen years and has *822 extensive knowledge of the ranches and boundaries in Kenedy County. A map of a portion of the Kenedy Ranch was introduced into evidence. Officer Fain testified he could "tell by looking at the map that that's the approximate location of where the apprehension and violation occurred." However, the map failed to indicate where the Kenedy Memorial Foundation property was located. Furthermore, Fain failed to specifically state that appellant entered upon Kenedy Memorial Foundation property. An officer's testimony cannot establish as a matter of law that a defendant committed trespass where the record does not indicate the defendant was on a portion of private property from which he rightly could be excluded. State v. Jackson, 849 S.W.2d 444, 446 (Tex.App.San Antonio 1993, no pet.). While it is true the Kenedy Memorial Foundation is located on the Kenedy Ranch, and Officer Fain testified he told appellant he was inside the Kenedy Ranch, Officer Fain never testified that appellant trespassed in the Kenedy Memorial Foundation portion of the Kenedy Ranch. Because the State failed to adduce any evidence appellant trespassed on Kenedy Memorial Foundation property, we sustain point of error three. Our disposition of appellant's third point of error makes it unnecessary for us to address point of error two. TEX. R. APP. P. 90(a). The judgment of the trial court is REVERSED and a judgment of acquittal entered. NOTES [1] TEX. PENAL CODE ANN. § 30.05 (Vernon 1994). [2] The propriety of this action is the subject of appellant's first point of error.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518768/	240 Md. 289 (1965) 214 A.2d 168 KEYWORTH v. ISRAELSON ET AL. [No. 404, September Term, 1964.] Court of Appeals of Maryland. Decided November 8, 1965. The cause was argued before PRESCOTT, C.J., and HORNEY, MARBURY, OPPENHEIMER and BARNES, JJ. Paul Berman, with whom was Bayard Z. Hochberg on the brief, for the appellant. J. Cookman Boyd, Jr., with whom was Walter S. Levin on the brief, for Max R. Israelson and Stafford H. Plimack, two of the appellees. Delverne A. Dressel, with whom was Emanuel H. Horn on the brief, for Industrial Sales Co., Inc., the other appellee. 293 OPPENHEIMER, J., delivered the opinion of the Court. This appeal involves the rights of attorneys and client in a settlement fund under a fee agreement and the right of a creditor of the client to an equitable lien against the fund. The client, Charles E. Keyworth (Keyworth) has appealed from an order of the Circuit Court No. 2 of Baltimore City directing that one-third of the fund (after expenses and costs) be paid to the attorneys, Max R. Israelson (Israelson) and Stafford H. Plimack (Plimack) and from a decree of that court ordering the amount advanced to Keyworth by his employer, Industrial Sales Co., Inc. (the Employer) retained from the proceeds of the fund pending the final determination of a law suit between the Employer and Keyworth. On September 29, 1959, Keyworth, while in the employ of the Employer, sustained serious injuries when an automobile which he was operating in the course and scope of his employment was struck by a truck operated by Stephen Brown while on business of Brown's employer, Fleet Transfer Company. Some three days after the collision, Plimack who, it is claimed, was the attorney for the Employer, came to see Keyworth and was employed by him, under circumstances to which reference will be made hereafter. Keyworth and his wife signed an agreement under which Plimack undertook to represent the Keyworths in connection with their claim against Brown and Fleet Transfer Company. This agreement provided for a fee to Plimack of twenty-five per cent of any amount received, if the case were to be settled out of court, and one-third of any recovery in litigation. On October 10, 1959, Keyworth executed a claim for compensation, which was filed for him by Plimack with the Maryland Workmen's Compensation Commission on October 16, 1959. On November 9, 1959, the Commission ordered that Keyworth receive temporary total disability benefits of $40 a week, which he received from the date of the injury through June 19, 1960. He also received temporary partial disability benefits from June 20, 1961 through September 24, 1961, and medical and hospital expenses under the Employer's compensation insurance. The temporary total and temporary partial disability benefits amounted to $3201.43, and the 294 medical and hospital expenses totaled $1030. While Plimack had requested a hearing on behalf of Keyworth to determine the nature and extent of permanent disability, no hearing was held on this issue until April 21, 1964, after Keyworth's present counsel had entered the case and Plimack's name, at Keyworth's request, had been removed as Keyworth's attorney from the compensation proceedings. On April 27, 1964, the Commission found that Keyworth had sustained a permanent partial disability under "Other Cases" amounting to fifty per cent industrial loss of the use of his body and ordered compensation at the rate of $25 a week beginning September 25, 1960, not to exceed the sum of $6250. The Employer and its insurer, in another case, have appealed this order of the Commission. On March 8, 1960, Plimack filed suit on behalf of Keyworth against Brown and Fleet Transfer Company as third-party tortfeasors. On May 28, 1962, on Plimack's recommendation, Keyworth agreed to employ both Plimack and Israelson as his attorneys to try this case. This agreement expressly provided that it superseded the original fee agreement between Keyworth and Plimack. Under the 1962 agreement, Keyworth authorized Plimack and Israelson to carry on the suit or compromise it and agreed to pay them one-third of the amount recovered; he also authorized the attorneys to pay the necessary medical and hospital and other expenses out of his share of any recovery. The trial of the third-party case concluded on December 3, 1962 and resulted in a jury verdict in Keyworth's favor for $15,000, an amount which was disappointingly low to Keyworth and his attorneys. It is agreed that the main reason for what is claimed to be the relatively small judgment was that the defendants produced and showed motion picture films depicting Keyworth's movements prior to the trial, which contradicted Keyworth's claims of disability resulting from the collision. An appeal was immediately discussed, a motion for a new trial was made and denied, and Israelson ordered the transcript written up. In February, 1963, Keyworth raised and gave to Israelson the necessary monies to perfect the appeal. Israelson was pessimistic as to the chances on appeal. Keyworth was convinced there was something wrong with the films. Israelson obtained an offer of an additional $1600 to settle the 295 appeal. Israelson contends, and Keyworth denies, that Keyworth authorized the dismissal of the appeal in view of the offer totalling $16,600. Keyworth refused to sign the settlement papers and Israelson filed an order with the court clerk to have the judgment entered to his and Plimack's use to the extent of the agreed fee, in accordance with the express authorization contained in the fee agreement of May 28, 1962, and a judgment was entered to their use to the extent of their one-third attorney's fees. Thereafter, Israelson and Plimack petitioned for the appointment of a trustee to execute settlement papers and to hold and disburse the funds and, after an answer had been filed by Keyworth, the case was transferred by consent to the Circuit Court No. 2 of Baltimore City and an order signed appointing the clerk of that court trustee to hold the settlement fund subject to further order. On December 31, 1959, the Employer and Keyworth entered into an agreement which recited that while Keyworth was then receiving $40 a week under the Commission's order of November 9, 1959 as compensation for temporary total disability, he had been earning approximately $100 a week take-home pay and wished to receive weekly advances from the Employer in the amount of $100. The agreement, which was prepared by Plimack, provided that the Employer would pay Keyworth $100 a week from the time of the accident until he returned to work on a full-time basis; that Keyworth would maintain his suit against Brown and the Fleet Transfer Company through his attorney, Plimack, and that, upon the successful conclusion of the case, he authorized Plimack to issue a check to the Employer for the amount to be advanced by the Employer, excluding any bonuses or presents. The Employer made advances to Keyworth under this agreement in the total amount of $7200. After the court below had appointed the clerk as trustee of the sum of $16,600, the Employer filed a petition in the proceedings alleging that the sum on deposit was subject to an assignment-lien in its favor in the amount of $7200 under its agreement with Keyworth and asking that the court order payment of this sum to the Employer out of the fund. Keyworth answered this petition denying that the Employer was entitled to the relief 296 it prayed; the Employer thereupon filed a petition to intervene and was authorized to do so on September 23, 1964. On September 11, 1964, the date the Employer filed its petition to intervene in the proceedings in the Circuit Court No. 2, it filed a lawsuit against Keyworth in the Baltimore City Court for the sum of $7200 under its agreement, asking for summary judgment. After the taking of testimony and the filing of an opinion, Judge Harris, in the court below, entered an order, on October 14, 1964, awarding to Israelson and Plimack a one-third fee of the $16,600, less the cost of the transcript and the cost of the appeal, in the net amount of $5292.12. The order also awarded to the Employer's compensation carrier the sum of $2697.41, representing its lien of $4231.43 less its proportionate share of approximately twenty-five per cent chargeable under Code (1957), Article 101, Section 58, and ordered $7200 held in escrow pending the outcome of the civil action brought by the Employer against Keyworth in the Baltimore City Court. The order awarded Keyworth $723.65 as reimbursement for costs advanced and provided that the balance of the fund, $668.82, be held in escrow pending the outcome of the compensation appeal with respect to the award of permanent partial disability. Judge Harris had also provided for the retention of the sum of $7200 pending the final determination of the suit of the Employer against Keyworth in his decree dated October 9, 1964. Keyworth's first contention is, that the lower court erred in awarding any counsel fee to Plimack and Israelson because they had dismissed the appeal in the third-party case without Keyworth's consent. He contends, second, that, in any event, the fee should be substantially reduced because Keyworth's compensation remedies had not been prosecuted to conclusion before the third-party action was tried and that, if he had received his award for permanent partial disability before the trial, there would have been a substantial benefit to him as to the amount of fees to be charged against him out of the fund. Third, Keyworth contends that the lower court erred in retaining the $7200 from the proceeds of recovery pending final determination of the law action brought by the Employer against Keyworth, because there was no equitable lien. 297 I In this appeal from the order of the Chancellor, Keyworth first contends that Plimack and Israelson should have been allowed no counsel fee whatsoever because they dismissed the appeal from the judgment in the third-party case against Brown and Fleet Transfer Company contrary to Keyworth's express instructions. Keyworth recognizes that the issue here involved is entirely one of fact. He recognizes, further, the purport of Maryland Rule 886 a. that when an action has been tried by a lower court without a jury, the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses. Keyworth argues, however, that on the issue here involved, in the light of the testimony, the finding of the lower court was clearly erroneous. To support his contention, Keyworth relies on various aspects of the testimony. He points to the undisputed fact that, despite Israelson's feeling that the appeal was weak, he, Keyworth, wrote a formal letter to Israelson on July 1, 1963 stating that "[a]fter serious deliberation, I insist that you continue with the appeal." Despite this letter, Israelson testified that his alleged authority from Keyworth to dismiss the appeal was given in a telephone conversation in the first week of September and that he, Israelson, had no written memorandum in his file to indicate when the final authorization was given and did not confirm the alleged conversation by letter. Keyworth had consulted a film expert, in an endeavor to show distortion in the moving pictures which proved so disastrous at the trial to Keyworth's claim of disability, and had received a written report from the expert as late as August 23, 1963 which confirmed his suspicions about the film. Keyworth stresses some inconsistencies in the testimony of Israelson as to the extent and manner in which Israelson consulted Melvin Sykes, a highly respected member of the bar who does much appellate work, as to the chances on appeal and Sykes' own recollection of what transpired. To rebut Israelson's testimony that he was always faced with the spectre of a new trial in which Keyworth might get less, Keyworth points to the fact that, as a result of the order of the lower court, without a new trial, he will get nothing 298 in any event. Keyworth refers to other phases of the testimony to support his contention that the dismissal of the appeal by Israelson was clearly unauthorized, was an act of bad faith in the performance of his professional duties to his personal advantage to save the necessity of further endeavor and that, therefore, neither Israelson nor Plimack is entitled to any compensation for their services. In his opinion, Judge Harris reviewed and analyzed the conflicting testimony as to whether or not Keyworth had authorized the dismissal of the appeal. He referred to Keyworth's testimony that, after Israelson had told him in June, 1963 that the chances of success on the appeal, in his opinion, were slight, he, Keyworth, talked to a number of "influential people" concerning the appeal, but, when pressed on recross-examination as to the identity of the persons to whom he had talked, his testimony was extremely vague and, to Judge Harris, unconvincing. The judge was impressed by the fact that if Keyworth was unable to recall the identity of any of the "influential people" with whom he discussed his case during the summer of 1963 (apart from his present counsel), it is probable that he could not accurately recall the details of his telephone conversation with Israelson in September, 1963. The judge had examined the transcript of the trial in the third-party case and referred to the fact that Israelson is "an experienced, skilled, and reputable trial attorney of known ability in personal injury negligence cases" and found that an examination of the transcript and the actions taken by Israelson following the trial showed no evidence of any malpractice on his part. As to Israelson's consultation with Sykes and Israelson's alleged failure to show Sykes a part of the transcript containing alleged erroneous trial rulings in the refusal to allow Keyworth to testify in rebuttal on the motion pictures, Judge Harris pointed out that Israelson was under no obligation to consult Sykes in the first place and that, at the most, it is debatable as to whether Israelson should have shown Sykes the portion of the transcript which Keyworth contends was important. Sykes had testified he could not give any advice as to the merit of the appeal without some prior legal research. Judge Harris stressed the fact that Israelson, in good faith, did seek to obtain "an 299 objective, expert appraisal of the chances of the appeal's success, when he was under no duty to do so." We have examined the entire record extract in the light of Keyworth's contentions. In our opinion, the findings of Judge Harris that Israelson had properly performed his professional duties in the conduct of the trial and thereafter and that Keyworth had expressly authorized Israelson to dismiss the appeal are not clearly erroneous and, therefore, will not be set aside. II Keyworth contends that even if this Court finds, as it has, that the lower court was not clearly in error in holding that Keyworth authorized the dismissal of the appeal, nevertheless the amount of the fee allowed to Plimack and Israelson should be reduced because of their alleged failure to prosecute Keyworth's compensation remedies to a conclusion before trying the third-party action against Brown and Fleet Transfer Company. Keyworth argues that, if Plimack or Israelson had caused Keyworth's claim to compensation for permanent partial disability to be heard before the Workmen's Compensation Commission and an award made before the trying of the third-party action, then the resulting fees to Israelson and Plimack would have been less and the benefit to Keyworth substantially greater. This contention is based upon an alleged conflict of interest as well as failure to perform professional duties. Keyworth testified in the proceedings below, without contradiction, that after his accident he employed Plimack as his attorney because of the insistence of the Employer. He stated that he talked with Mr. Louis Schloss, the president of the Employer, on the telephone after the accident and it was agreed that Keyworth needed an attorney and Schloss said he would send his attorney down. Judge Harris accepted as a fact that Keyworth employed Plimack on the insistence of the Employer. Keyworth testified that when Plimack came to see him at his home, about three days after the accident, Plimack said that "he would take care of the compensation bit." In fact, on October 10, 1959, about two weeks after the accident, Keyworth executed a claim for compensation, which was filed by Plimack as Keyworth's attorney, with the Maryland Workmen's 300 Compensation Commission on October 16, 1959. Plimack immediately requested a hearing before the Commission on behalf of Keyworth to determine the nature and extent of permanent disability. The order of the Commission for the payment of temporary total disability to Keyworth at $40 a week was passed on November 9, 1959; Plimack did not press any claim for counsel fee for the securing of this order or the payment of medical expenses. The Commission advised Plimack on May 14, 1962 that Keyworth's case was set for hearing on the nature and extent of permanent disability on May 25th but the file of the Commission, which was made part of the record below, shows that the hearing was postponed and the file was noted on May 24, 1962 "Do not reset until requested." The hearing on the claim for permanent partial disability was not held until April 21, 1964 when Keyworth was represented by his present counsel; as a result of this hearing, Keyworth received a total of $6250 additional compensation. At the hearing before Judge Harris, counsel for Keyworth made the following proffer in connection with this phase of the case: "I want to show that Mr. Keyworth employed Mr. Plimack at the insistence of his employer, that was obvious conflict of interest. Mr. Plimack was the employer's lawyer and representing Mr. Keyworth. Now, he did file a claim for compensation and was paid some compensation for some period. The conflict was very apparent because rather than permit Mr. Keyworth to get his compensation, all the compensation to which he was entitled, which might have increased his employer's insurance premium because of the loss ratio, Mr. Plimack elected on his own to file suit on behalf of Mr. Keyworth. And although the records will show, the records of the commission will show the case was set for a hearing on numerous occasions to determine the nature and extent of Mr. Keyworth's injury whereby he would get an award for permanent partial, the obtaining of which would cost him a whole lot less in counsel fees than it would 301 be by obtaining it in the third party suit, Mr. Plimack misrepresented this man in so doing, that is in continuing those hearings and not pursuing the hearings before the commission, and letting it go to trial against the third party proceeding." The trial judge did not permit Keyworth to offer testimony pursuant to the proffer because it related largely to conversations between Keyworth and Plimack out of the hearing of Israelson and prior to the time that Israelson had been employed by Keyworth. Under the provisions of Code (1964 Repl. Vol.) Article 101, Section 58, when there is an injury for which compensation is payable under the Article, caused by circumstances creating a legal liability in a third person, and there is a recovery against the third person, the employer and his insurance company have a right to be reimbursed for compensation paid or awarded and for any amounts paid for medical services, except court costs and counsel fees. Court costs and counsel fees are to be paid by the injured employee and his employer and the compensation insurance carrier in the proportion that the amount received by each shall bear to the whole amount paid in settlement or satisfaction of any judgment obtained in the case. Keyworth contends that, if his award for compensation for permanent partial disability had been made prior to the third-party litigation, the compensation insurer would have been chargeable with a larger share of Plimack's and Israelson's counsel fees and the court costs. The compensation insurer would have had to pay counsel fees and costs to cover its share of the supplemental award of April 27, 1964 which it would have received in subrogation against the money recovered from the third parties, in the same manner in which the Chancellor reduced the compensation insurer's reimbursement from the third-party settlement for its payments under the original award of November 9, 1959. Keyworth's net recovery, then, would have been increased by the additional amount that the compensation insurer would have contributed to the counsel fees and court costs. Keyworth requests that the Plimack-Israelson fee be reduced by such amount as the compensation insurer would have 302 contributed and Keyworth's share of the fund be increased pro tanto. Plimack and Israelson deny that there was any conflict of interest in their representation and contend that the agreement between them and Keyworth of May 28, 1962 takes the place of any prior agreement, is unambiguous and supports the distribution of the fund ordered by the court below. In our opinion, however, the matter is not so clear, particularly in view of the high fiduciary duties imposed upon attorneys in their relationship to their clients. Canon 6 of the Canons of Professional and Judicial Ethics of the American Bar Association (1957), which is also Canon 6 of the Canons adopted by the Maryland State Bar Association, sets forth the fundamental concept that: It is the duty of a lawyer at the time of retainer to disclose to the client all the circumstances of his relations to the parties, and any interest in or connection with the controversy, which might influence the client in the selection of counsel. It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts * * " In the early case of Zimmerman v. Bitner, 79 Md. 115, 126 (1894), this Court said: "The broad principle, says Vice-Chancellor Wood, on which the court acts in cases of this description, is that wherever there exists such a confidence, of whatever character that confidence may be, as enables the person in whom confidence or trust is reposed, to exert influence over the person trusting, the court will not allow any transaction between the parties to stand, unless there has been the fullest and fairest explanation and communication of every particular resting in the breast of the one who seeks to establish a contract with the person so trusting him. Tate v. Williamson, L.R. 1 Eq. 528." It is also true, however, that even when a transaction between 303 an attorney and his client is questioned, if the attorney can show that the client entered into the relationship voluntarily, deliberately and advisedly, knowing its nature and effect, and that there was no concealment of any kind or undue means used to obtain the client's consent, the transaction will be sustained. McLean v. Maloy, 136 Md. 467, 513, 111 A. 91 (1920). See also Silverman v. Kogok, 239 Md. 71, 76, 210 A.2d 375 (1965). In the hearing below, Keyworth testified that he was not at all familiar with proceedings before the Workmen's Compensation Commission. The record shows that proceedings were taken before the Commission by Plimack as Keyworth's attorney for temporary total disability payments after the original agreement as to fee between Keyworth and Plimack had been signed. There is nothing in the record to indicate Plimack's reasons for not proceeding with the hearing as to Keyworth's claim for compensation for permanent partial disability, or whether or not he explained such reasons to Keyworth. It is undisputed that Plimack acted as counsel for both the Employer and Keyworth in the drawing of the agreement dated December 31, 1959 between the Employer and Keyworth, under which the Employer agreed to advance Keyworth $100 a week. No conflict is indicated, however, in Plimack acting for both parties in the drafting of this agreement. There was no legal obligation of any kind on the Employer to make the advances and the agreement expressly set forth that the $40 a week which Keyworth was receiving for temporary total disability was to remain his sole property except for any subrogational rights the insurance carrier might have. The original written agreement as to compensation between Keyworth and Plimack, in terms, referred only to the third-party action. Keyworth's testimony that Plimack also agreed to "take care of the compensation bit" was not contradicted. Additional testimony may show the nature of the agreement as to Plimack's representation of Keyworth for claims for compensation. We think that the court below should have accepted the testimony proffered by Keyworth's counsel. The testimony was admissible to show Keyworth's loss, if any, caused by Plimack's failure to have had a prompt hearing on Keyworth's claim for 304 permanent partial disability. If there was such a loss to Keyworth, it was for the trial court to consider the effect on the proper amount of fee to be allowed. We do not agree that because Israelson entered the case at a later date he was necessarily absolved from any effect that the proffered testimony might have had on the relationship of the parties. It is true that the agreement of May 28, 1962 between Keyworth, as client, and Plimack and Israelson, as attorneys, expressly stated that it superseded the original agreement. It is also true that, as Plimack and Israelson contend, a court will not undertake to redraft a contract when its terms are plain and unambiguous. Hankins v. Public Service Mutual Insurance Co., 192 Md. 68, 84, 63 A.2d 606 (1949). However, in a confidential relationship such as that of attorney and client, the burden is upon the attorney to show a transaction as to fee is voluntary and fair. Tucker v. Dudley, 223 Md. 467, 473, 164 A.2d 891 (1960); McLean v. Maloy, supra, 513. The rule is applicable when the attorney asserts his claim in an equity court to part of a fund paid into court. Tucker v. Dudley, supra. In determining whether an attorney has met the burden of proof which the law casts upon him, the court must consider all the facts and circumstances in the particular case. Baker v. Otto, 180 Md. 53, 56, 22 A.2d 924 (1941). It was at Plimack's suggestion, because of Israelson's experience and reputation as a trial attorney in actions for personal injuries, that Keyworth authorized Israelson's employment with Plimack in the third-party litigation. It may be that Keyworth would have been satisfied to pay an additional contingent fee to Israelson because of his reputation. It may also be, however, in the light of the additional testimony which we believe is indicated and all the facts and circumstances, that the second fee agreement is to be construed in the light of whatever understanding may be found to have existed at the time Keyworth first employed Plimack as to the prosecution of the proceedings before the Commission. There is also to be considered whether Israelson, on all the facts, was under a duty to make sure that Keyworth understood the possible effect on the agreed-upon fee of the failure to have obtained an award from the Commission for permanent partial disability before the trial of the third-party case. 305 In what we have said, we do not intend to reflect upon the professional conduct of the attorneys involved in these proceedings. It is our opinion, however, that in view of the fragmentary state of the record as to this aspect of the case and the duty of courts to insist upon the full compliance, in spirit as well as letter, with the high standards inherent in the carrying on of the legal profession, the purposes of justice will be advanced by providing for further proceedings, which would include the testimony of Plimack, in accordance with Maryland Rule 871 a. III Keyworth contends that the lower court was in error in permitting the Employer to intervene in the proceedings; in its decree of October 9, 1964 providing that the clerk of the court retain the sum of $7200 pending the final determination of the lawsuit of the Employer against Keyworth; and in making a similar provision in its order of October 14, 1964. Keyworth submits that the agreement between the Employer and himself is no more than a contract, the breach of which would entitle the injured party to maintain a lawsuit for damages but that the agreement does not expressly or impliedly create a lien against the proceeds of the third-party action. The Employer argues that the clear intention of the agreement of December 31, 1959 was not only to make the contract but also to provide a lien against the fund, if and when created, and that the lower court was correct in its orders and decree. An equitable lien is based on specific enforcement of a contract to assign property as security. The contract need not stipulate for the lien in express terms; it is enough if that is the fair and reasonable implication of the terms employed. A mere promise to pay a debt or obligation does not of itself, however, create a lien unless the intention to create it is apparent from the instrument and circumstances leading to it. Johnson v. Johnson, 40 Md. 189, 196 (1874). See 33 Am. Jur. Liens § 18 and 4 Pomeroy's Equity Jurisprudence §§ 1235-1237 (5th ed. 1941); but also see 41 Harv. L. Rev. 404 (1928). In most cases involving the question of whether or not an equitable lien has been created, the rights of other creditors are involved, but the same principles apply when, as here, the 306 controversy is only between the original creditor and the debtor. The danger that the fund might be dissipated before the creditor is able to prove his right to recover at law does not, of itself, give a court of equity jurisdiction, if no lien has been created. See 33 Am. Jur. Liens § 6 and cases therein cited. In Johnson v. Johnson, supra, the plaintiff and defendant had entered into an agreement under which the defendant promised to pay $2500 to the plaintiff in full satisfaction of all claims, $500 of which was to be paid within thirty days, $1000 out of the first payment made on the sale of the defendant's farm, "Harmony Grove", and the other $1000 out of the second payment. The plaintiff promised to give the defendant the immediate possession of the farm, which he did. The defendant only paid the first instalment of $500. The plaintiff filed a bill in equity asking an enforcement of the defendant's covenant as a charge or lien on the land and praying that the farm be sold to raise the fund to pay off the amount due. The decree of the lower court in favor of the plaintiff was affirmed. Judge Alvey, for the Court, found that the most material question was whether the covenant created an equitable charge or lien. He said: "It is objected that the covenant creates only a personal obligation on the defendant, and that, consequently, there is no jurisdiction in a Court of Equity to take cognizance of the case. If this were a mere personal covenant, and nothing more, the objection just stated would certainly be well founded. But that is not our conclusion as to the nature of the covenant. That the covenant does create a personal obligation on the defendant is doubtless true, and one that could be sued on at law; but it does not necessarily follow from that being so, that there may not be also an equitable lien or charge created at the same time. The covenant does not, as may be observed, stipulate in express terms that the land shall be sold and the proceeds of sale applied to the discharge of this particular debt. But we think that is the fair and reasonable implication from the terms employed. In a case 307 like the present, the question whether there has been a charge created depends in a great measure upon the intention of the contracting parties; and here we think it manifest, as well from the language of the covenant itself as from the circumstances leading to it and under which it was made, that the parties contemplated the sale of the farm, and the proceeds of sale as the fund from which the debt was to be paid." 40 Md. at 196. In Union Trust Co. v. Biggs, 153 Md. 50, 60, 137 A. 509 (1927), Judge Parke said, for the Court: "It is an accepted principle of equity that where, as here, the intention to hold and charge a particular interest or estate as security for the payment of a debt or other obligation is clearly manifested in writing, but frustrated simply through some default of form or in procedure, an equitable lien upon such interest or estate is created, which is enforceable against the property in the hands of not only the original promisor, but as against his heirs, executors, administrators, voluntary assigns, and purchasers or encumbrancers with notice." Barnes v. Alexander, 232 U.S. 117 (1914), involved a contingent fee to lawyers, payable out of the proceeds of the settlement of certain mining suits. The appellees claimed that, through informal business conversations, it was understood they were to have a lien for their fee upon the fund created. The Supreme Court affirmed the judgment of the lower court in their favor. In delivering the opinion of the Court, Mr. Justice Holmes said: "Obviously the only thing intended or desired was to give the appellees a claim to one-third of the fund received by Barnes if and when he should receive it. It is true that there was in a sense a res as to which present words of transfer might have been used. There was a right vested in Barnes unless discharged to try 308 to earn a fee contingent upon success. But in a speculation of this sort the parties naturally turned their eyes toward the future and aimed at the fruits when they should be gained. They therefore used words of contract rather than of conveyance; but the important thing is not whether they used the present or the future tense but the scope of the contract. In this case it aimed only at the fund. Barnes gave no general promise of reward; he did not even give a promise qualified and measured by success to pay anything out of his own property, referring to the fund simply as the means that would enable him to do it. See National City Bank v. Hotchkiss, 231 U.S. 50, 57. He promised only that if, when and as soon as he should receive an identified fund one-third of it should go to the appellees. But he promised that. At the latest, the moment the fund was received the contract attached to it as if made at that moment * * And it is one of the familiar rules of equity that a contract to convey a specific object even before it is acquired will make the contractor a trustee as soon as he gets a title to the thing." 232 U.S. at 121. In this case, the agreement between the Employer and Keyworth does not specifically provide for a lien but provides that Keyworth is to repay the Employer the total sums advanced by the Employer on the successful conclusion of the third-party action. In such event, Keyworth authorizes his attorney, Plimack, to issue a check to the Employer for the exact amount so advanced by the Employer. The preamble to the covenants of the agreement contains a recital that Keyworth is receiving the sum of $40 a week from the Employer's Workmen's Compensation carrier, "which sum shall remain the sole property of the employee except for any subrogation rights that the insurance carrier may have." In our opinion, despite the lack of any express provision creating an equitable lien, it is apparent from all the circumstances, as well as the language of the agreement, that the parties intended that, if Keyworth was successful in his third-party action, 309 the Employer was to have an equitable lien against the proceeds for the repayment of the sums which it had advanced, and that the agreement in effect assigned any proceeds of the action as security for the repayment of the advances. The reference to the $40 a week which Keyworth was receiving from the insurance carrier refers to any subrogation rights that the carrier might have; that reference is consistent with and indicates rights in the distribution of a fund. More significant, however, is the authorization by Keyworth to Plimack to issue a check to the Employer for the exact amount advanced by the Employer. As has been observed in the preceding portions of this opinion, Plimack was, at least originally, the Employer's attorney and was employed by Keyworth at the Employer's insistence. It was Plimack who prepared the agreement between the Employer and Keyworth. In the light of these facts, the authorization to Plimack to issue his check to the Employer for the repayment of the advances upon the successful conclusion of the third-party litigation, is, in our opinion, a clear indication that the parties to the agreement looked to the creation of a fund consisting of the proceeds of the verdict or settlement resulting from the third-party action; and that Plimack was to receive the proceeds and was to use them, in part, for the repayment of the advances made by the Employer. There was, in effect, not only a conditional promise by Keyworth to repay the Employer and to transfer property in payment of his debt but an implied contract to assign the fund resulting from the successful prosecution of his third-party action as security for his indebtedness. We think the agreement between the Employer and Keyworth, construed in the light of the facts and circumstances, meant that the source of the monies to be refunded would be the monies actually paid by the third-party defendants, Brown and Fleet Transfer Company, and that these monies were to be held as security for the repayment. In view of the lien which we have found the Employer was given under the agreement, the lower court acted properly in permitting the Employer's intervention in the pending litigation. Maryland Rule 208; Miller, Equity Procedure § 80. Intervention under similar circumstances was approved in Wingert 310 v. Gordon, 66 Md. 106, 6 A. 581 (1886). In that case, we said: "His claim is based upon the ground that he has acquired by express contract, a lien or charge upon the fund, which is enforceable in equity, and if this be true, we see no objection to the mode he has adopted of enforcing it. We think he has the right to come in by petition and should not be driven to an original bill * * " 66 Md. at 109. See also Barnes v. Alexander, supra. It is true that Judge Harris, in his decree and order, merely provided for the retention of the $7200 pending the outcome of the litigation with respect to the alleged indebtedness pending in the Baltimore City Court. Under Maryland Rule 517, the practice theretofore existing of transferring issues of fact arising in an action in equity to a court of law for an advisory verdict by a jury was abolished. However, it is apparent from the records and the briefs that both parties to the lawsuit wished the law court, rather than the equity court, to determine their rights. The Employer filed the lawsuit and asked for a summary judgment, and Keyworth made it clear in the proceedings below that he wished his rights determined by a jury. In view of this implicit consent of the parties, Judge Harris committed no error in providing merely for the retention of the $7200 in the equity proceedings until the final determination of the lawsuit. We, therefore, affirm the decree passed below on October 9, 1964 and so much of the order passed on October 14th as reaffirms the retention of the $7200 in the fund. In the preceding portions of this opinion, we have affirmed the finding of the court below that Plimack and Israelson were entitled to payment of legal fees out of the fund, but, for the reasons stated, have found that the amount of those fees is subject to further determination. Accordingly, pursuant to Maryland Rules 871 a. and 872, as it appears to this Court that the substantial merits of this portion of the case will not be determined by affirming, reversing or modifying the order, and that the purposes of justice will be advanced by permitting further proceedings in the cause with the introduction of additional 311 evidence, we remand the case for such further proceedings. Decree of October 9, 1964 affirmed and so much of order of court of October 14, 1964 as re-enacts the said decree affirmed; remaining issues of case remanded without affirmance or reversal for further proceedings consistent with the views expressed in this opinion; one-half the costs to be paid by appellant, Keyworth, and the other one-half to be paid by appellees Plimack and Israelson.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518784/	46 N.J. 16 (1965) 214 A.2d 393 STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RICHARD THEODORE COLEMAN, DEFENDANT-APPELLANT. The Supreme Court of New Jersey. Argued September 14, 1965. Decided November 8, 1965. 21 Mr. William J. Rokos, Jr. argued the cause for the appellant. Mr. Dominick A. Mirabelli, Assistant Prosecutor, argued the cause for the respondent (Mr. Leo Kaplowitz, Union County Prosecutor, attorney). The opinion of the court was delivered by JACOBS, J. The Union County Grand Jury returned indictment No. 405 against the defendant Richard Theodore Coleman for the murder of his wife Millie Coleman and indictment No. 406 against him for the murder of his sister-in-law Ruby Coleman. The indictments were consolidated for trial. At the trial, the State's evidence of the two killings was not disputed. The defendant relied upon the defense of insanity as to both. The jury returned a verdict on indictment No. 405 of guilty of murder in the first degree with a recommendation of life imprisonment and on indictment No. 406 of not guilty by reason of insanity, said insanity continuing to the present time. The defendant appealed as of right to this Court from his conviction under indictment No. 405. The defendant lived with his family in one-half of a two-family duplex at 1119 McCandless Street, Linden. His brother Harry and Harry's wife Ruby, lived in the other half of the duplex. During the evening of July 4, 1963 the defendant's wife Millie took their children to a relative's home in Rahway where Millie and the children spent the night. They returned to their home in Linden at about 3 P.M. on July 5th. In the meantime the defendant had done some drinking at a local tavern and had traveled to Elizabeth with friends. When he returned to his home during the afternoon of July 5th he found his wife preparing to leave with the children for Florida. There was an argument and the defendant shot and killed his wife. 22 Harry heard the argument and the shot, rushed from his apartment to that of his brother and saw Millie on the floor with "a lot of blood around her head." He called to his brother, received no answer, and then saw his brother coming up from the cellar with "a revolver in each hand." Harry asked his brother what he had done but there was no reply. The defendant then shot Harry. Wounded, Harry ran out of the back door of the defendant's apartment and to his own apartment, falling in as his wife Ruby opened the door. The defendant followed and shot point blank at Ruby, killing her. The defendant then returned to his own apartment, came out, crossed the street and shot and wounded Mrs. Mary Ann Kube who was visiting in her mother-in-law's home on McCandless Street. He then entered his car, drove a short distance, and shot and wounded a neighbor, Leroy Edwards. He drove off and was finally apprehended at approximately 3:30 A.M. on July 6th as he was riding along Route 1 in Newark. He was taken to Newark Police Headquarters and at about 4 A.M. Linden police officers arrived there and spoke to him. He identified himself to them as Richard Coleman and admitted that he had shot his wife and his sister-in-law. At about 9:30 A.M. he was examined by a physician of the Newark Police Department, was brought before a Newark magistrate, and was then taken to Linden Police Headquarters where he was questioned for a short time. The defendant was placed in a cell at 12:30 P.M. and shortly after 1 P.M. was taken to Masterpeter's funeral home where he identified the bodies of his wife and sister-in-law. He remained there briefly and was then returned to his cell. He was examined by a physician of the Linden Police Department at 3:15 P.M. and Reverend Schell, who had been called at the defendant's request, arrived at 3:35 P.M. During the evening of July 6th the defendant said that he wanted to make a statement but that he would like Reverend Schell to be present. Reverend Schell was called again and arrived at about 9 P.M. in the company of Mr. Patterson, a trustee of Reverend Schell's church. Between 9:25 P.M. and 11 P.M. 23 the defendant gave his statement in the presence of Reverend Schell, Mr. Patterson and several police officers. At the trial, the killings and the attendant circumstances were overwhelmingly established by the State's evidence which included, inter alia, testimony from the defendant's daughter who saw Millie lying on the floor and the defendant with a gun in his hand, and testimony from the defendant's brother who, after seeing Millie on the floor and the defendant with guns in both hands, later saw the defendant shoot and kill Ruby. Testifying on his own behalf, the defendant said that he was struck on the head during the argument with his wife on July 5th and that he remembered nothing until he found himself in the Linden jail on July 6th. He further said that he blacked out again after he was taken to identify the bodies of his wife and sister-in-law and that he recalled nothing until he found himself in the Union County Jail on July 7th. Two psychiatrists and a psychologist testified for the defendant that he was legally insane on July 5th when his wife and sister-in-law were killed. Two psychiatrists testified for the State that the defendant was legally sane when the killings occurred. After the jury returned its verdicts the defendant moved for a new trial. This motion was dismissed when the defendant advised the court and his counsel that he did not wish to proceed. Later the defendant changed his mind and a further notice of motion for new trial was then filed. This motion was denied on the ground that it had not been filed within the time allowed by R.R. 3:7-11(a). In support of his appeal, the defendant asserts various grounds of alleged error during the trial and in the denial of the motion for new trial; they will now be considered in the order in which they have been presented in the defendant's brief. I. The defendant's first point attacks the consolidation of the indictments as violative of his "rights to a fair and impartial 24 trial as guaranteed by the New Jersey and United States Constitutions." R.R. 3:5-6 provides that the court may order two or more indictments to be tried together if the offenses could have been joined in a single indictment. R.R. 3:4-7 provides that two or more offenses may be charged in the same indictment if they "are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." The offenses here were clearly of the same or similar character and there can be no question that the consolidation came within the broad terms of the rules. See State v. Manney, 26 N.J. 362, 365-366 (1958); State v. Begyn, 34 N.J. 35, 56-57 (1961); cf. State v. Weiner, 41 N.J. 21, 34-36 (1963). In the interests of economy and efficiency, similar or related offenses may be joined for single trial so long as the defendant's right to a fair trial remains unprejudiced. Where prejudice appears, the defendant may readily obtain a severance or other suitable relief. See R.R. 3:5-7. Here the defendant did not at any time during the trial apply for severance although he had voiced his opposition to the State's motion before trial for consolidation of the indictments. In any event, we fail to find in the record any indication of prejudice to the defendant by virtue of the consolidation. There was no dispute at the trial that the defendant had killed his wife and sister-in-law and the defense rested entirely on insanity. The consolidation protected the defendant against any danger of multiple prosecutions (cf. State v. Hoag, 21 N.J. 496 (1956), aff'd 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958)) and was helpful rather than harmful to his defense which rested heavily on the bizarreness of his entire course of conduct through his last act of violence. Indeed, in his brief the defendant explicitly points out that even the State's evidence of the assaults which did not result in death was not objected to because it was felt that it "would support the defendant's plea and would indicate the defendant's mental condition at the time of the offenses." 25 In its charge, the trial court clearly instructed the jury that the defendant was entitled to have his guilt or innocence separately assessed on each indictment and that the determination of his guilt or innocence on one indictment should not be considered as indicative of his guilt or innocence on the other. The jury's capacity to follow the trial court's instructions on this score was forcefully evidenced by its variant determinations on the two killings. Unlike other situations (Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85 (1964)) where the nature of the multiple charges and the State's evidence may have suggested the danger of confusion (Note, 74 Yale L.J. 553 (1965)) or the likelihood that the charges would be used "to prove each other or prove themselves through the sheer weight of numbers" (State v. Weiner, supra, 41 N.J., at p. 35), here, there was no such danger or likelihood. We are satisfied that the trial court acted well within the bounds of its discretion in consolidating the indictments for trial. Cf. Peterson v. United States, 344 F.2d 419, 422 (5 Cir. 1965); Johnston v. United States, 260 F.2d 345, 346 (10 Cir. 1958), cert. denied 360 U.S. 935, 79 S.Ct. 1454, 3 L.Ed.2d 1547 (1959); Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295, 298 (1965); Commonwealth v. Fancy, Mass., 207 N.E.2d 276, 282 (1965). II. The defendant contends that the trial court erred in refusing to grant his motion for a jury view of the premises. N.J.S. 2A:77-1 provides that in any civil or criminal case the court may order "that the jury view the lands, places or personal property in question if that will enable the jury better to understand the evidence." The view is not independent evidence in the cause but may be used to serve as an aid to the jury's understanding of the evidence properly introduced before it by the parties. See Bancroft Realty Co. v. Alencewicz, 7 N.J. Super. 105, 109-110 (App. Div. 1950). Whether a view would be necessary or helpful in any given instance 26 and should therefore be ordered rests within the trial court's sound discretion. See State v. Jackson, 43 N.J. 148, 170 (1964); State v. King, 133 N.J.L. 480, 483 (Sup. Ct. 1945), aff'd 135 N.J.L. 286 (E. & A. 1947); Braelow v. Klein, 100 N.J.L. 156, 158 (E. & A. 1924); 2 Wharton Criminal Evidence § 681 (12th ed. 1955); 4 Wigmore, Evidence § 1164 (3d ed. 1940). The defendant urges that the elements of time and distance were important in the presentation of his defense and that a view would have aided the jury in its understanding of the evidence. But, as the trial court properly pointed out, the jury had many pictures of the area as well as diagrams and the defense could readily have introduced a drawing to scale if it considered it to be advantageous. There were no evidential complexities bearing on the elements of time and distance and there is no reason to suspect that the jury had any difficulties in this connection. The trial court's denial of the motion for a jury view was not improper and did not result in any prejudice to the defendant. See R.R. 1:5-1. III. The defendant claims that the introduction into evidence of photographs of the bodies of Millie Coleman and Ruby Coleman was prejudicial. The photographs (1 of Millie and 1 of Ruby) were not inflammatory or gruesome. They were in black and white and did not show front views of faces of the victims or their wounds. They did show the positions of the bodies immediately after the shootings and were to some extent evidential; indeed defense counsel during the course of his summation made a specific argument on the basis of the position of Ruby's body and referred to the photograph in support. In State v. Smith, 32 N.J. 501 (1960), cert. denied 364 U.S. 936, 81 S.Ct. 383, 5 L.Ed.2d 367 (1961), we pointed out that the admission of photographs having some probative value, even where cumulative and somewhat inflammatory, rests within the discretion of the 27 trial judge, "whose ruling will not be overturned save for abuse, as where logical relevance will unquestionably be overwhelmed by the inherently prejudicial nature of the particular picture" (32 N.J., at p. 525). It appears to us that here the photographs were not at all prejudicial and that the trial court did not exceed its discretionary authority in admitting them. See State v. Hale, 45 N.J. 255, 262-263 (1965); State v. Bucanis, 26 N.J. 45, 52-55, cert. denied 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed.2d 1160 (1958); Annot., 73 A.L.R.2d 769 (1960). IV. The defendant contends that the trial court erred in permitting Detective Carmine Lonardo to testify though his name had not been set forth in the State's answer to the defendant's demand for particulars. Although the defendant originally had made a broader demand, he withdrew it on the understanding that the State would supply the names of "all persons possessing knowledge of relevant facts concerning the alleged crime, but not a list of witnesses who may be called by the State at the trial." In its particulars the State listed many names but neglected to include Detective Lonardo's name. However, well before trial, the State had given defense counsel a copy of the defendant's July 6th statement which disclosed, at its beginning, that it was made before "U.C. Det. H. Frankel & Det. C. Lonardo" and, at its close, that it was sworn to before Detective Frankel and was witnessed by several persons including Detective Lonardo. When Detective Lonardo was called by the State as a witness, defense counsel voiced his objection on the ground that the Detective's name had not been listed in the particulars furnished by the State. The Prosecutor pointed out that defense counsel was undoubtedly aware that Detective Lonardo would be called as a witness since he knew that the Detective had participated in the taking of the statement. When the trial court inquired as to how the defendant was 28 harmed, defense counsel made no showing and gave no indication of prejudice. The Detective was then permitted to testify. His testimony related largely to the defendant's conduct on July 6th, concluding with the taking of his statement on that day. There was full cross-examination and at the close of the trial day there was no request for any continuance to enable further investigation or preparation or for any later recall of the witness. Examination of the entire record, which includes ample testimony by other witnesses for the State with respect to the subject matter of the Detective's testimony, convinces us that the defendant did not suffer any prejudice from the State's failure to include the Detective's name in the list furnished by the State; the trial court's action in permitting the testimony was not reversible error. See United States v. Glaze, 313 F.2d 757 (2 Cir. 1963); cf. State v. Driver, 38 N.J. 255, 289 (1962). V. While the defendant was testifying on direct examination, he stated that, during their married life, he and his wife "got along good," that they were active in church organizations, and that he had been "appointed on a Deacon board" and she "was Deaconess." On cross-examination, the Prosecutor asked whether the defendant had not had arguments with his wife about what had happened in Woodbridge in 1958. He followed this with a question as to whether the defendant had not picked up a Mrs. Sue Jones in the Plaza Bar. At this point defense counsel objected on the ground of irrelevancy. This objection was overruled and the Prosecutor pursued his inquiry as to whether the defendant had not had arguments with his wife about the Jones incident and about his going out with other women. The defendant now contends that the trial court committed prejudicial error in permitting the Prosecutor to cross examine "about the Plaza Bar incident." The Prosecutor's inquiry not only attacked the credibility of the defendant's 29 direct testimony but also bore on a substantive issue in the case. The State's position was that the defendant had long quarreled with his wife, that she was about to leave him, and that he purposefully killed her. On the other hand, the defendant alleged that there was no significant hostility between them and that he shot her while he was insane. In the light of the issue thus presented, the State's inquiries on cross examination, designed to confirm the motive advanced by it and to rebut the defendant's assertion as to the harmony of his relations with his wife, were relevant and proper. See Perkins, Criminal Law 721 (1957); McCormick, Evidence 55 (1954). VI. The defendant urges that "the inflammatory remarks and name calling by the Prosecutor during the trial and in his summation were plain error." He cites several instances in which the Prosecutor referred to the defendant as a killer who used the two guns in his hands "as the instruments of justice" and who "didn't mind using guns when other people didn't have them"; other instances in which the Prosecutor asked the jury to show the same mercy or sympathy that the defendant "showed to these two women"; and still others in which he questioned the testimony of the expert witnesses for the defense and the qualifications of one of them. The defendant also lays stress on an occasion during the trial where the Prosecutor, while stating that he had given defense counsel a copy of the statement "of the defendant Coleman over here," pointed to the defendant. Defense counsel objected to the Prosecutor's conduct in pointing to the defendant, at which juncture the Prosecutor said, "Well, he is the defendant. I didn't kill these people." We fail to find any plain error or any prejudice to the defendant in the Prosecutor's conduct or remarks. At no time during the trial did defense counsel voice any pertinent objection or indicate that he thought the court should take corrective action. See State v. Bucanis, supra, 26 N.J., at p. 57. 30 In its charge the court explicitly instructed the jury that the evidence did not consist of anything said by counsel or the court, that its deliberations were to be concerned solely with the evidence brought out by the testimony of the witnesses and the exhibits, and that sympathy, passion, prejudice and bias were not to play any part in its determinations. None of the Prosecutor's remarks lacked the support of evidence by the State (State v. Reynolds, 41 N.J. 163, 184-185 (1963), cert. denied 377 U.S. 1000, 84 S.Ct. 1930, 12 L.Ed.2d 1050 (1964)), and, none of them can be said to have impaired the defendant's right to a just trial. The record discloses that the trial judge conducted the proceedings with eminent fairness and that displays of emotion were kept at a minimum throughout. The defendant had killed the two women and while some of the Prosecutor's remarks may here be viewed as needlessly colorful, they did not go beyond the outer trial limits recognized by the precedents. See State v. Johnson, 31 N.J. 489, 510-513 (1960). VII. The contention is made that the defendant's "oral and written confessions were not voluntary and their admission into evidence was a denial of his constitutional rights." Since the defendant's position at the trial was that he recalled nothing other than being taken to identify the bodies of his wife and sister-in-law at the funeral home, the State's evidence as to voluntariness was substantially uncontroverted. It indicated that when the defendant was first apprehended and taken to Newark Police Headquarters, he identified himself as Richard Coleman and admitted that he had shot his wife and sister-in-law. After having been examined by a physician and having been brought before a magistrate, he was taken to Linden Police Headquarters where he was questioned briefly during the morning. Detective Frankel left the Headquarters at about 4 P.M. while the defendant was sleeping in his cell. Later the Detective received a call at his home that the defendant 31 wanted to see him and he returned to the Headquarters, arriving there at 8:15 P.M. Detective Frankel testified that the defendant told him that he wanted to make a statement but that he would like Reverend Schell to be present; he thereupon called the Reverend who arrived at about 9 P.M. in the company of Mr. Patterson, a trustee of the Reverend's church; the defendant was then removed from his cell and conferred with the Reverend in a private office until about 9:25 P.M.; thereafter the taking of the statement began in the presence of the Reverend, Mr. Patterson and several police officers, with Detective Frankel doing the questioning and Detective Lonardo the typing. Detective Frankel testified further that before the questioning began he told the defendant that he did not have to give a statement and that what he said could be used later. The defendant did not at any time request counsel, his only request having been for the attendance of Reverend Schell. The statement set forth that the defendant was making it of his own free will and disclosed, on its face, that the questioning was at one point interrupted to enable the defendant to confer then with Reverend Schell. A snapshot of the scene, taken by Detective Frankel and portraying the reading of the statement after its typing had been completed, was received in evidence. Detective Lonardo and Mr. Patterson both testified that Reverend Schell and the defendant had conferred privately for about 15 minutes before the statement was taken; however, the Reverend testified that although he was present during the taking of the statement and talked to the defendant afterwards, he had not talked to him before the interrogation began. The trial court expressly found that the statement was a voluntary one and admitted it into evidence with later instructions which submitted to the jury not only its credibility but also its voluntariness. See State v. Hodgson, 44 N.J. 151, 161-162 (1965). The defendant attacks the trial court's finding of voluntariness, stressing the visit to the funeral home to identify 32 the bodies and citing Davis v. United States, 32 F.2d 860 (9 Cir. 1929). In Davis the defendant, while asserting self defense, was taken at three o'clock in the morning to a morgue where, after viewing the body for about an hour, he altered his story and confessed. Here the defendant had admitted the killings, was taken at one o'clock in the afternoon to the funeral home where he remained for about 5 or 10 minutes, was returned to his cell where he slept during part of the afternoon, stated during the early evening hours that he wanted to make a statement in the presence of Reverend Schell, and later made his statement in the manner hereinbefore described. Under these circumstances it cannot at all be inferred that the brief visit to the funeral home, which occurred more than 7 or 8 hours before the taking of the statement began, either overbore the defendant's will or impaired his ability to make a free and unconstrained choice. See Culombe v. State of Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037, 1057-1058 (1961). The trial court's finding of voluntariness was well supported by the evidence before it, and our examination of the record in accordance with the principles expressed in State v. Smith, supra, 32 N.J., at pp. 540-544 leads us to the same finding. The defendant urges that before his statement was taken he should have been afforded an opportunity to confer with legal counsel and that under Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), his constitutional rights under the sixth amendment made obligatory on the states by the fourteenth amendment were violated. In Escobedo the accused had been released on a writ of habeas corpus obtained by his attorney. He was again picked up at a later date, asked to see his attorney, and was falsely told that his attorney did not want to see him. In fact his attorney had asked and had been denied permission by the police to see him. Without being advised that he was not required to make any statement and without being afforded any opportunity to consult with his lawyer, he was interrogated and his incriminating statement was admitted into evidence 33 at the trial. In setting aside his conviction, the Supreme Court said that under the circumstances it was obligatory that the accused be permitted to consult with his lawyer. The precise determination of the Supreme Court, in its own language, was as follows: "We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied `the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as `made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S. [335], at 342, 83 S.Ct. [792], at 795 [9 L.Ed.2d, at 804, 93 A.L.R.2d 733] and that no statement elicited by the police during the interrogation may be used against him at a criminal trial." 378 U.S., at pp. 490-491, 84 S.Ct., at p. 1765, 12 L.Ed.2d, at p. 986. In contrast to Escobedo the defendant here was not dealt with unjustly and, in the light of the nature of the case and the State's independent evidence, his statement may fairly be said to have had no significant bearing on his prosecution and its outcome. Detective Lonardo testified that when the defendant was first returned from Newark to Linden he said he was in trouble and wanted someone to talk to. At that point, the Detective said he would get anyone the defendant wanted. The defendant then suggested Reverend Schell who was called and who later, according to the persuasive testimony, conferred with the defendant privately before participating in the taking of the statement. As has already been pointed out, the defendant was told that he did not have to say anything and it is undisputed that he never requested an opportunity to confer with counsel or anyone other than Reverend Schell. In comparable situations this Court has held the holding in Escobedo to be inapplicable. See State v. Ordog, 45 N.J. 347, 361-362 (1965); State v. Lanzo, 44 N.J. 560, 566-567 (1965); State v. Bindhammer, 44 N.J. 372, 384 (1965); 34 State v. Hodgson, supra, 44 N.J., at pp. 162-163; State v. Vigliano, 43 N.J. 44, 49-52 (1964); State v. Smith, 43 N.J. 67, 83-84 (1964), cert. denied 379 U.S. 1005, 85 S.Ct. 731, 13 L.Ed.2d 706 (1965). We, of course, recognize that the United States Supreme Court is the final arbiter on all questions of federal constitutional law. See Schlemm v. Schlemm, 31 N.J. 557, 571 (1960); cf. State v. Rosania, 33 N.J. 267, 274 (1960). And if we believed that any actual holding or doctrinal determination of that Court called for reversal here, we would, of course, readily take such action. As we expressed it in Schlemm: "We, as state judges, would indeed disserve the interests of our country if, because of conflicting local policies, we in anywise sought to disregard or evade the decisions of the Supreme Court as to the meaning and effect of the Federal Constitution." 31 N.J., at p. 571. But as we read Escobedo, the Supreme Court deliberately and explicitly confined its holding to the circumstances there presented (78 Harv. L. Rev., at pp. 218, 429-430 (1964)) and although there is widespread belief in academic and other circles (32 U. Chi. L. Rev. 560 (1965); 19 Rutgers L. Rev. 111 (1964); 88 N.J.L.J. 681 (1965)) that the Supreme Court will in due course eliminate all confessions by unrepresented suspects in custody, it has not yet done so. If it chooses to take that step, it will undoubtedly avail itself of unequivocal language. In the meantime, the New Jersey view of Escobedo, as consistently expressed in Smith, Vigliano, Bindhammer, Hodgson, Lanzo and Ordog, supra, renders it inapplicable where, as here, the defendant was advised of his right to remain silent, was told that he could speak to anyone he wanted and made no request for counsel. Although there are differing views of substantial nature elsewhere (see People v. Dorado, 42 Cal. Rptr. 169, 398 P.2d 361, cert. denied 381 U.S. 946, 85 S.Ct. 1793, 14 L.Ed.2d 710 (1965)), the New Jersey view finds support in many state and lower federal court decisions. See People v. Hartgraves, 31 Ill.2d 375, 202 N.E.2d 33 (1964), cert. denied 380 U.S. 961, 85 S.Ct. 1104, 14 L.Ed.2d 152 (1965); 35 Sturgis v. State, 235 Md. 343, 201 A.2d 681 (1964); Carson v. Commonwealth, Ky., 382 S.W.2d 85 (1964), cert. denied 380 U.S. 938, 85 S.Ct. 949, 13 L.Ed.2d 825 (1965); Browne v. State, 24 Wis.2d 491, 131 N.W.2d 169 (1964), cert. denied 379 U.S. 1004, 85 S.Ct. 730, 13 L.Ed.2d 706 (1965); Bean v. State, Nev., 398 P.2d 251 (1965); People v. Gunner, 15 N.Y.2d 226, 257 N.Y.S.2d 924, 205 N.E.2d 852 (1965); Jackson v. United States, 337 F.2d 136 (D.C. Cir. 1964), cert. denied 380 U.S. 935, 85 S.Ct. 944, 13 L.Ed.2d 822 (1965); Long v. United States, 119 U.S. App. D.C. 209, 338 F.2d 549 (D.C. Cir. 1964); Davidson v. United States, 236 F. Supp. 264 (W.D. Okla. 1964); Davis v. State of North Carolina, 339 F.2d 770 (4 Cir. 1964); Edwards v. Holman, 342 F.2d 679 (5 Cir. 1965). See also United States ex rel. Townsend v. Ogilvie, 334 F.2d 837 (7 Cir. 1964), cert. denied 379 U.S. 984, 85 S.Ct. 683, 13 L.Ed.2d 574 (1965); Otney v. United States, 340 F.2d 696, 702 (10 Cir. 1965) (concurring opinion); Mitchell v. Stephens, 232 F. Supp. 497 (E.D. Ark. 1964); Duncan v. State, 278 Ala. 145, 176 So.2d 840, 861-863 (1965); State v. Miranda, 98 Ariz. 18, 401 P.2d 721 (1965); State v. Fox, Iowa, 131 N.W.2d 684 (1964); Comm. v. Tracy, Mass., 207 N.E.2d 16 (1965); State v. Worley, 178 Neb. 232, 132 N.W.2d 764, 768 (1965); Pece v. Cox, 74 N.M. 591, 396 P.2d 422 (1964); State v. Elam, 263 N.C. 273, 139 S.E.2d 601 (1965); Ward v. Comm., 205 Va. 564, 138 S.E.2d 293 (1964). In United States ex rel. Russo v. New Jersey, 351 F.2d 429 (3 Cir. 1965), the court, on habeas corpus, recently set aside the convictions of the defendants Russo and Bisignano which had been sustained by this Court in State v. LaPierre, 39 N.J. 156, cert. denied 374 U.S. 852, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963). In the course of its decision, the Third Circuit went beyond the actual holding in Escobedo and construed the Supreme Court's opinion as broadly invalidating confessions such as those made by the defendants Russo and Bisignano while in custody and without counsel, 36 no request for counsel having been made by them. The view thus expressed, while binding in Russo (subject to any further review in the Supreme Court), is not binding on us in other cases which come before us in the exercise of our acknowledged State jurisdiction. In passing on federal constitutional questions, the state courts and the lower federal courts have the same responsibility and occupy the same position; there is parallelism but not paramountcy for both sets of courts are governed by the same reviewing authority of the Supreme Court. 28 U.S.C.A. §§ 1254, 1257 (1949). See Brown v. Palmer Clay Products Co., 290 Mass. 108, 195 N.E. 122 (1935), aff'd 297 U.S. 227, 56 S.Ct. 450, 80 L.Ed. 655 (1936); People ex rel. Ray v. Martin, 294 N.Y. 61, 60 N.E.2d 541 (1945), aff'd 326 U.S. 496, 66 S.Ct. 307, 90 L.Ed. 261 (1946); Rohr Aircraft Corporation v. County of San Diego, 51 Cal.2d 759, 336 P.2d 521 (1959), rev'd on other grounds 362 U.S. 628, 80 S.Ct. 1050, 4 L.Ed.2d 1002 (1960). See also Lewis v. Braun, 356 Ill. 467, 191 N.E. 56 (1934); Home Ins. Co. of New York v. Northern Pac. Ry. Co., 18 Wash.2d 798, 140 P.2d 507 (1943); State ex rel. St. Louis, B. & M.R. Co. v. Taylor, 298 Mo. 474, 251 S.W. 383 (1923), aff'd 266 U.S. 200, 45 S.Ct. 47, 69 L.Ed. 247 (1924); LaBonte v. New York, N.H. & H.R.R., 341 Mass. 127, 167 N.E.2d 629 (1960); Lapp Insulator Co. v. Boston & M.R.R., 330 Mass. 205, 112 N.E.2d 359 (1953); New York Rapid Transit Corp. v. City of New York, 275 N.Y. 258, 9 N.E.2d 858 (1937), aff'd 303 U.S. 573, 58 S.Ct. 721, 82 L.Ed. 1024 (1938); Zurich Gen. Acc. & Liab. Ins. Co. v. Lackawanna Steel Co., 164 Misc. 498, 299 N.Y.S. 862 (1937), aff'd 254 App. Div. 839, 6 N.Y.S.2d 139 (1938), rev'd 279 N.Y. 495, 18 N.E.2d 673, rev'd Bethlehem Steel Co. v. Zurich, 307 U.S. 265, 59 S.Ct. 856, 83 L.Ed. 1280 (1939); Crowe v. Elmhurst Contracting Co., 191 Misc. 585, 74 N.Y.S.2d 445 (1947), aff'd 273 App. Div. 999, 79 N.Y.S.2d 876 (1948); Clausen v. Panama Transport Co., 103 N.Y.S.2d 624, 628 (Sup. Ct. 1951); Beezer v. City of Seattle, 62 Wash.2d 569, 383 P.2d 895, 897 (1963), rev'd 37 376 U.S. 224, 84 S.Ct. 709, 11 L.Ed.2d 656 (1964); York v. Gaasland Co., 41 Wash.2d 540, 250 P.2d 967, 971 (1952); Penn. R.R. v. F.E. Mathias Lumber Co., 113 Ind. App. 133, 47 N.E.2d 158 (1943); Hangelias v. Dawson, 158 Pa. Super. 370, 45 A.2d 392 (1946); Comm. ex rel. Goodfellow v. Rundle, 203 Pa. Super. 419, 201 A.2d 615 (1964); cf. Note, "Authority in State Courts of Lower Federal Court Decisions on National Law," 48 Colum. L. Rev. 943 (1948), where the author points out that, when adjudicating federal questions, the state courts form an integral part of the national structure and that: "In that capacity they occupy exactly the same position as the lower federal courts, which are coordinate, and not superior to them. There is no appeal from the state to the lower federal courts. Instead both are subject to the reviewing power of the Supreme Court, which furnishes the unifying principle. Decisions of a lower federal court are no more binding on a state court than they are on a federal court not beneath it in the judicial hierarchy." 48 Colum. L. Rev., at pp. 946-947. See also Iowa Nat. Bank v. Stewart, 214 Iowa 1229, 232 N.W. 445 (1930), rev'd on other grounds Iowa-Des Moines National Bank v. Bennett, 284 U.S. 239, 52 S.Ct. 133, 76 L.Ed. 265 (1931), where Chief Justice Morling aptly summarized the governing principle which finds broad support in the many state decisions cited above: "The federal Circuit Courts of Appeals and, in respect to federal law, the state courts of last resort are subject to the supervisory jurisdiction of the Supreme Court of the United States. They are, however, as to the laws of the United States, co-ordinate courts. Finality of determination in respect to the laws of the United States rests in the Supreme Court of the United States. Until the Supreme Court of the United States has spoken, state courts are not precluded from exercising their own judgment upon questions of federal law. They are not concluded by, though they should give respectful consideration to, the decisions of the federal Circuit Courts of Appeals and District Courts. Wells v. Western Union Telegraph Co., 144 Iowa, 605, 611, 123 N.W. 371, 24 L.R.A. (N.S.) 1045, 138 Am. St. Rep. 317; State [ex rel St. Louis, B & M.R. Co.] v. Taylor, 298 Mo. 474, 251 S.W. 383; Walters v. Commonwealth, 199 Ky. 182, 250 S.W. 839." 232 N.W., at p. 454 38 When Russo was handed down it became apparent that troublesome situations might arise, since any convicted defendant could seek habeas corpus relief in the New Jersey federal district court which would be bound by the Russo view. In an effort to avoid conflict and unseemliness we immediately directed that, wherever practicable, pending cases should be tried without using confessions and that wherever that was not feasible, there should be a postponement of the trial date. In other respects we announced that, while awaiting further clarification from the Supreme Court, we would adhere to our many earlier decisions as to the limits of Escobedo. The case before us was tried in March 1964, shortly before Escobedo and long before Russo. As we read the record and under our consistent interpretation of Escobedo, there was neither injustice nor constitutional violation in the admission of the defendant's statement here into evidence. If, notwithstanding all this, we were now to reverse because of the lower federal court's holding in Russo, we would be (1) abdicating our undoubted responsibility to pass on issues of constitutionality and justice as we see them, (2) imposing on the people of New Jersey what we believe to be the unwarranted burdens and dangers of retrying the defendant for the killing of his wife, and (3) impairing the proper balance, which we believe is being maintained in the current New Jersey decisions, between the treasured individual liberties and the urgent societal need for affording fair interrogational opportunities to law enforcement officials. But cf. Commonwealth v. Negri, Pa., 213 A.2d 670 (1965); see Breckline v. Metropolitan Life Insurance Co., 406 Pa. 573, 178 A.2d 748, 2 A.L.R.3d 1135 (1962); Thomas v. Hempt Bros., 371 Pa. 383, 89 A.2d 776 (1952), rev'd on other grounds 345 U.S. 19, 78 S.Ct. 568, 97 L.Ed. 751 (1953). VIII. The defendant contends that error was committed by the trial court in refusing certain of his "requests to charge 39 and in its charge on the law as to insanity." The charge must of course be read as a whole. See State v. Bertone, 39 N.J. 356, 368 (1963); State v. Hale, 45 N.J. 255, 264 (1965). As thus read, it properly submitted the pertinent issues to the jury for its determination. The rejected requests were either sufficiently encompassed by the charge or were uncalled for by the evidence. See State v. Borrell, 18 N.J. 16, 25 (1955); State v. Rogers, 19 N.J. 218, 238 (1955). The charge on the law of insanity was proper in the light of the M'Naghten rule which is followed in this State and is not attacked by the defendant here. See State v. Lucas, 30 N.J. 37, 63-72 (1959); State v. Trantino, 44 N.J. 358, 367 (1965); State v. Sikora, 44 N.J. 453, 470 (1965). The trial court first correctly expressed the M'Naghten test of insanity, namely, that the accused was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong. See State v. Lucas, supra, 30 N.J., at p. 68. It then followed it with a statement that: "If the accused has sufficient mind at the time of the act to know the nature and quality of his act and the difference between right and wrong with respect to the act he did, he cannot discharge himself from responsibility. He is not legally insane under the law." The defendant questions the presence of the conjunctive "and" but its use in the quoted language as to when there was no insanity, as distinguished from the statement which preceded it as to when there was insanity, was entirely correct. In any event, the charge, when examined in its entirety, fully and fairly expressed the governing principles bearing on the asserted defense of insanity and the jury could not have been misled. See State v. Bertone, supra, 39 N.J., at p. 368; State v. Hale, supra, 45 N.J., at p. 264. IX. The defendant contends that the trial court should not have received the verdict of guilty on indictment No. 405 40 in view of the jury's finding under indictment No. 406 that the defendant's insanity continued to the present time. His position is that the finding meant that he was incapable of standing trial and that consequently the verdict of guilty cannot stand. But the jury's finding had no such meaning. As was pointed out in Aponte v. State, 30 N.J. 441 (1959), the term "insanity" has varying meanings and applications in the law. (1) It may refer to the lack of criminal responsibility as a defense to crime and in this connection the test of M'Naghten is applicable; (2) it may refer to a commitment to a mental institution in which instance it means a mental disorder which renders the subject dangerous to himself or others; and (3) finally, it may refer to the ability to stand trial and here it means a mental disorder which prevents the accused from comprehending his position or from consulting properly with counsel in the preparation of his defense. 30 N.J., at p. 450; see also Henderson, J., dissenting in Rowe v. State, 234 Md. 295, 199 A.2d 785, 798 (1964). It is well recognized that an accused may have a mental disorder but may nevertheless understand his position and be able to assist fully in his own defense. See State v. Aponte, supra, 30 N.J., at pp. 452-453; State v. Noel, 102 N.J.L. 659, 669-672 (E. & A. 1926); Settle and Oppegard, "The Pre-Trial Examination of Federal Defendants," 35 F.R.D. 475, 480 (1964); cf. Weihofen, Mental Disorder as a Criminal Defense, 428-436 (1954). The psychiatrists who testified during the trial did not suggest that the defendant was then in no condition to stand trial. The State's psychiatrists denied all insanity. Dr. Revitch and Dr. Colley, who testified for the defense, said that the defendant was in a "paranoid state" but their testimony contained no indication that the defendant did not then comprehend his position or was unable to assist fully in his own defense. Thus Dr. Revitch, who described the defendant's state at the time of the shooting as a "catathymic crisis" or emotional disintegration, said it was now in remission though it may recur under conditions of stress. Dr. Colley testified 41 that, although in July when the killings took place the defendant had no controls and had what may be described as an alteration of consciousness or a disassociated period, when he examined him in October he found that the defendant did not have this "disassociation phenomena," was able to perceive reality and had controls in operation. At no time before or during the trial did the defense counsel make any motion grounded on the assertion that the defendant was unable to stand trial. Cf. N.J.S. 2A:163-2; State v. Lucas, supra, 30 N.J., at pp. 72-74. At one point when the defendant began to sob, the trial court interrupted the proceedings and had him examined by Dr. Baruch, a duly qualified physician. Dr. Baruch testified that he found the defendant understood his situation, was able to consult intelligently with counsel, and was able to proceed with the trial. Defense counsel asked Dr. Baruch no questions, voiced no objection to the trial court's direction that the trial proceed, and made no motion. Later, the defendant testified on his own behalf. The nature of his testimony gave further support for the trial court's judgment that there was no inability on the defendant's part to stand trial. At no point was the jury called upon to make any determination as to the defendant's ability to stand trial and it appears evident that its finding of continuing insanity was not intended to bear on that issue. Its finding was made pursuant to the trial court's instructions which dealt fully with insanity under the M'Naghten test but made no mention at all of ability to stand trial; it was made in fulfillment of N.J.S. 2A:163-3 which, for commitment purposes, makes provision for a jury finding as to whether the insanity continues to the present. Cf. Aponte v. State, supra, 30 N.J. 441. The case of Rowe v. State, supra, 234 Md. 295, 199 A.2d 785, upon which the defendant relies, dealt with Maryland statutes which may readily be differentiated from ours; in any event, there were several dissenters and their views bearing on the contention before us, seem to be the more persuasive. See 199 A.2d, at pp. 798-800. We find no error in the trial court's 42 receipt of the guilty verdict on indictment No. 405 along with the finding of continuing insanity under indictment No. 406. X. The defendant attacks the jury's verdicts as "inconsistent and contradictory." The only appeal before us is from the guilty verdict under indictment No. 405 and it might well be said that that verdict could stand independently without regard to any inconsistency with the verdict of not guilty under indictment No. 406. See Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932); cf. State v. Dancyger, 29 N.J. 76, 93, cert. denied 360 U.S. 903, 79 S.Ct. 1286, 3 L.Ed.2d 1255 (1959); United States v. Maybury, 274 F.2d 899 (2 Cir. 1960); Comment, "Inconsistent Verdicts in a Federal Criminal Trial," 60 Colum. L. Rev. 999 (1960). However, we need not pursue this for we are satisfied that there was no necessary inconsistency or contradiction in finding the defendant guilty of killing his wife and not guilty by reason of insanity of the subsequent killing of his sister-in-law. During the trial the defense psychiatrists, Dr. Revitch and Dr. Colley, who testified generally that the defendant was insane, were not asked specifically whether the defendant might have been sane when he shot his wife and insane when he shot his sister-in-law. But Dr. Fink, the psychologist who testified for the defense, was asked whether the defendant might know the difference between right and wrong at one moment and thereafter not know it and his reply was "It would constantly fluctuate." Dr. Revitch testified the defendant probably was aware that he had a gun and if he pulled the trigger he would do harm, but that he was seized by anger, his awareness of what he was doing was reduced, and his actions became automatic without conscious control. Dr. Colley testified that the defendant probably knew he had guns in his hand and that if he pulled a trigger he would cause harm but that he was then overwhelmed by his hatred. The State's psychiatrists 43 testified unrestrictedly that the defendant was sane, knew the nature and quality of his acts and what he was doing was wrong. The jury was at liberty to reject any portions of the aforementioned testimony which they discredited and to consider the evidence before it in the light of human experiences and understandings. Thus it could fairly conclude that the defendant had quarreled with his wife, she was about to leave him, and in anger or desperation but while sane within M'Naghten, he killed her. It could also fairly conclude that, the shocking deed having been done, he then went berserk and aimlessly killed and wounded others while insane within M'Naghten. We, of course, cannot be certain as to the internal processes which actually occurred for, as the psychiatrists themselves would readily acknowledge, they do not have all the answers. But clearly the jury's diverse treatment of the two killings does not offend common sense nor result in any unfairness or injustice; we find no basis for upsetting the guilty verdict under indictment No. 405 as inconsistent with or contradictory to the verdict under indictment No. 406. XI. The defendant contends that the verdict represented a compromise by the jury and that the conviction appealed from should be reversed under In re Stern, 11 N.J. 584 (1953), and Hyde v. United States, 225 U.S. 347, 381, 32 S.Ct. 793, 56 L.Ed. 1114, 1131-1132 (1912). Those cases dealt with situations where the jury was unable to agree, was given further instructions, and returned shortly thereafter with the verdict of guilty. In Hyde, the further instructions were found not coercive and the verdict was sustained whereas in Stern they were found coercive and the verdict was upset. Neither case has any bearing here where the court in its charge correctly instructed that a determination of guilt or innocence on one of the indictments was not to be considered as indicative of guilt or innocence on the other and the verdicts 44 actually returned by the jury were explicitly set forth in the list of possible verdicts enumerated by the trial court in its charge. There is no reason to question the conscientiousness of the jury's deliberations and, as has already been pointed out, there was no necessary inconsistency or contradiction in its verdicts. The defendant's assertion that there was a compromise is sheer speculation, finds no legal support in the record, and clearly furnishes no basis for reversal. See State v. Dancyger, supra, 29 N.J., at p. 93. XII. The defendant's final contention is that it was error for the trial court to dismiss his motion for new trial for lack of jurisdiction under R.R. 3:7-11. That rule provides that a motion for new trial, on grounds other than newly discovered evidence, must be made within 10 days or within such further time as the trial court may fix within the 10-day period. Here the defendant first made a timely motion for a new trial. Pursuant to a personal request by the defendant, that motion was dismissed by an order dated August 3, 1964, consented to as to form by the Prosecutor and defense counsel. On August 26, 1964 a new and untimely notice of motion was filed by defense counsel asserting that the verdict was against the weight of the evidence, that the defendant was entitled to a judgment of acquittal, and that there were trial errors. All of the allegations of trial errors have been dealt with and rejected earlier in this opinion; the assertion that the defendant was entitled to a judgment of acquittal was baseless and is not pressed; and the assertion that the verdict of guilty under indictment No. 405 was against the weight of the evidence is unsupported by the record. R.R. 3:7-11 provides that the trial judge shall not set aside the verdict of a jury as against the weight of the evidence, unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, "it clearly and convincingly appears that the verdict was the result *45 of mistake, partiality, prejudice or passion." Under that test the trial court could not properly have set the verdict aside as against the weight of the evidence even if the motion were timely. The jury could fairly find from the evidence that the defendant first quarreled with his wife who was about to leave him, then went and obtained the gun or guns from bureau drawers or elsewhere in the house, and then shot and killed her; and it could also fairly find that the killing was premeditated, deliberate and willful, bearing in mind that under the settled law of our State it is not necessary for first degree murder that any particular time elapse between the formulation of the purpose to kill and its execution. See State v. VanDuyne, 43 N.J. 369, 378-379 (1964), cert. denied 380 U.S. 987, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965); State v. Bindhammer, supra, 44 N.J., at p. 389. The defendant had a full and fair trial, the jury's verdict of guilty of murder in the first degree for the killing of his wife was amply supported by the evidence, and there was no prejudicial error. Accordingly, the judgment of conviction under indictment No. 405 is: Affirmed. For affirmance Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN 7. For reversal None.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518920/	569 F. Supp. 1513 (1983) Barry KEENE, Plaintiff, v. William French SMITH, et al., Defendants. No. CIV. S-83-287 RAR. United States District Court, E.D. California. September 7, 1983. 1514 James Scanlon, Sacramento, Cal., for Lawyers Alliance for Nuclear Disarmament. John G. Donhoff, Sacramento, Cal., Tobin & Tobin, Paul E. Gaspari, Scott R. Keene, San Francisco, Cal., for plaintiff, Barry Keene. David Anderson, Department of Justice, Washington, D.C., for defendants, William French Smith, et al. 1515 FINDINGS OF FACT AND CONCLUSIONS OF LAW RAMIREZ, District Judge. On May 23, 1983, the above-entitled matter came on regularly for hearing on plaintiff's motion for a preliminary injunction and defendants' motion to dismiss. Having read and considered the memoranda submitted by counsel, the attachments thereto, the pleadings, and the arguments of respective counsel, the Court herein grants plaintiff's motion for a preliminary injunction and denies defendants' motion to dismiss. The following shall constitute the Court's Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a). FINDINGS OF FACT I The present action challenges the constitutionality of the Foreign Agents Registration Act, 22 U.S.C. §§ 611, et seq. inasmuch as plaintiff contends that certain portions of the Act violate the First Amendment to the United States Constitution, which provides in relevant part: Congress shall make no law ... abridging the freedom of speech .... II Plaintiff is a member of the California State Senate and a member of the California State Bar. He desires to exhibit three films produced by the National Film Board of Canada which bear the titles, If You Love This Planet, Acid Rain: Requiem or Recovery, and Acid From Heaven. The former addresses the possible state of the earth and society after a nuclear holocaust; the latter two films address the problem of the acidification of atmospheric precipitation by exposure to sulfur dioxide in the air, commonly known as acid rain. Plaintiff alleges he is deterred from exhibiting the films by a statutory characterization of the films as "political propaganda." Plaintiff further alleges that if he were to exhibit the films while they bore such characterization, his personal, political, and professional reputation would suffer and his ability to obtain re-election and to practice his profession would be impaired. III Defendants are, respectively, the Attorney General of the United States and the Chief of the Registration Unit of the Internal Security Section of the Criminal Division of the United States Department of Justice. Responsibility for the administration and enforcement of the Foreign Agents Registration Act is vested in the Attorney General, who has delegated his authority to an appropriate officer. 28 U.S.C. § 510; 28 C.F.R. § 0.61(b), 28 C.F.R. Part 5 (1982). IV Section 2 of the Foreign Agents Registration Act, 22 U.S.C. § 612, requires each "agent of a foreign principal," defined by § 1(c), 22 U.S.C. § 611(c), to register as such with the Attorney General of the United States. The National Film Board of Canada has so registered. V Section 4 of the Act, 22 U.S.C. § 614, requires all registrants to supply the Attorney General with two copies of any "political propaganda" intended for dissemination in the United States. "Political propaganda" is defined, in relevant part, as follows: The term "political propaganda" includes any oral, visual, graphic, written, pictorial, or other communication or expression by any person (1) which is reasonably adapted to, or which the person disseminating the same believes will, or which he intends to, prevail upon, indoctrinate, convert, induce, or in any other way influence a recipient or any section of the public within the United States with reference to the political or public interests, policies, or relations of a government of a foreign county or a foreign political party or with reference to the foreign policies of the United States or promote in the United States racial, religious, or social dissensions .... 1516 22 U.S.C. § 611(j). Section 4 of the Act further prohibits the dissemination, in the United States, by any registrant, of any "political propaganda" unless the material is "conspicuously marked" at its beginning with a four-component statement. The four components of the required statement are: (1) "the relationship or connection between the person transmitting the political propaganda or causing it to be transmitted and such propaganda," (2) the fact that the supplier of the material is an agent of a foreign principal, (3) the fact that the supplier's registration statement is available for public inspection in Washington, D.C., and (4) that the registration of agents of foreign principals by the United States does not indicate approval by the United States of the material. VI Section 10 of the Act, 22 U.S.C. § 620, authorizes the Attorney General to adopt regulations to implement the Act. Pursuant to that authority, the Attorney General adopted regulations which authorize slightly different treatment of films: Unless specifically directed to do so by the Assistant Attorney General, a registrant is not required to file two copies of a motion picture containing political propaganda which he disseminates on behalf of his foreign principal, so long as he files monthly reports on its dissemination. In each such case this registrant shall submit to the Registration Unit either a film strip showing the label required by section 4(b) of the Act or an affidavit certifying that the required label has been made a part of the film. 28 C.F.R. § 5.400(c). VII From the materials submitted to the Court, the Court infers that the National Film Board of Canada does not routinely affix the § 4 label to all of the films that it distributes in the United States. Instead, it would appear that the Film Board transmits a list of all of its films to the Registration Unit which then requests copies of the films which the unit believes fall within the statutory definition of "political propaganda." Upon receipt of the requested copies, the unit determines whether any of the films are "political propaganda" within the meaning of the Act. If any film is determined to be "political propaganda," the Registration Unit so informs the Film Board which then must affix the § 4 label to the copies of the film and file the Dissemination Reports required by the Act, 22 U.S.C. § 614(a), 28 C.F.R. § 5.401. VIII The procedure described in Paragraph VII was followed by the defendants in evaluating the films If You Love This Planet, Acid Rain: Requiem or Recovery, and Acid From Heaven. On January 13, 1983, defendants notified the National Film Board of Canada that a determination had been made that the films were "political propaganda," and that the Film Board must make the § 4 label "a part of the film[s]," 28 C.F.R. § 5.400(c), and file the appropriate reports, 28 C.F.R. § 5.401. IX In March 1983, defendants agreed to review their administrative decision and to refrain from imposing the labelling and reporting requirements of the Act on the films pending that review. X Defendant Clarkson, Chief of the Registration Unit, has supplied the Court with an uncontradicted affidavit which establishes that the defendants have consistently interpreted the Act and the regulations to apply only to the registrant. According to the authoritative agency interpretation of the Act and the regulations, plaintiff is free to remove the § 4 label before exhibiting the films. CONCLUSIONS OF LAW I The present action arises under the United States Constitution, and as such, subject matter jurisdiction is predicated on the provisions of 28 U.S.C. § 1331. 1517 A. Standing II As a general rule, the doctrine of standing may be employed so as ... "to refuse to determine the merits of a legal claim, on the ground that even though the claim may be correct, the litigant advancing it is not properly situated to be entitled to its judicial resolution." 13 Wright, Miller, & Cooper, Federal Practice & Procedure § 3531. Standing implicates the Court's subject matter jurisdiction because the Constitution confers judicial power on the courts only for "cases and controversies." U.S. Const. art. III, § 2, cl. 1; Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982). In order to demonstrate standing, a plaintiff must exhibit (1) that he has suffered or will suffer imminently some injury, (2) that the injury can fairly be traced to the challenged conduct, and (3) that the injury can be remedied by an exercise of the court's power. Id. III In evaluating plaintiff's standing, the Court is required to accept all material allegations of the complaint as true: For purposes of ruling on a motion to dismiss for want of standing, both the trial court and the reviewing courts must accept as true all material allegations of the complaint, and construe the complaint in favor of the complaining party. [cite] At the same time, it is within the trial court's power to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff's standing. If, after this opportunity, the plaintiff's standing does not adequately appear from all the materials of record, the complaint must be dismissed. Warth v. Seldin, 422 U.S. 490, 501, 95 S. Ct. 2197, 2206, 45 L. Ed. 2d 343 (1975). This does not and will not preclude defendants from filing an answer which denies the allegations and seeking an adjudication of the issue via a motion for summary judgment, United States v. Students Challenging Regulatory Procedures (SCRAP), 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973), or via trial, Pacific Legal Foundation v. State Energy Resources Conservation & Development Commission, 659 F.2d 903 (9th Cir. 1981), aff'd on other grounds sub. nom. Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, ___ U.S. ___, 103 S. Ct. 1713, 75 L. Ed. 2d 752 (1983). IV Because the federal courts are not to be used as "publicly funded forums for the ventilation of public grievances," Valley Forge Christian College v. Americans United, Inc., supra, the injury of which plaintiff complains must be an injury "that is peculiar to himself or to a distinct group of which he is a part, rather than one `shared in substantially equal measure by all or a large class of citizens.' Warth v. Seldin, 422 U.S. at 499, 95 S.Ct. at 2205." Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S. Ct. 1601, 1608, 60 L. Ed. 2d 66 (1979). V Plaintiff desires to exhibit the films If You Love This Planet, Acid Rain: Requiem or Recovery, and Acid From Heaven, and it is his claim of status as a would-be exhibitor that differentiates him from citizens generally. There can be little doubt that a film exhibitor, especially in a noncommercial context[1], is likely and reasonably to be understood as using the film to communicate the exhibitor's own ideas. Thus a statute which inhibits the exhibitor's ability to exhibit also impinges on the exhibitor's ability to communicate. It is this special impairment on the plaintiff's ability 1518 to communicate which constitutes an injury different in kind from that suffered by the public in general. VI It is well-settled that the injury of which plaintiff complains must be "distinct and palpable" as opposed to speculative or attenuated. Warth v. Seldin, supra. Plaintiff's complaint, when read in light of the affidavits subsequently submitted, adequately alleges an injury that is both real and immediate: exhibition of the films which the statute characterizes as "political propaganda" will brand plaintiff, as an exhibitor, as a purveyor of propaganda, which will have an adverse impact on plaintiff's professional and personal reputation. In the present case, plaintiff does not complain that he might suffer disfavor from his constituents, colleagues, or prospective clients because they disagree with his position on nuclear weaponry or stationary source emissions. Rather, plaintiff complains that his ability to present his ideas for evaluation on their merits is being impaired by the interjection, into the exchange of ideas, of the characterization of those ideas as "political propaganda" by officials of the United States government. The Court finds, therefore, that plaintiff's injury is real and immediate. VII In order to demonstrate standing, plaintiff must adequately allege not only an actual injury, but also an injury which "fairly can be traced" to defendants' conduct. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41, 96 S. Ct. 1917, 1926, 48 L. Ed. 2d 450 (1976). Plaintiff has made the requisite showing by alleging that the Act characterizes the films that plaintiff wants to exhibit as "political propaganda," that such a characterization necessarily denigrates the contents of the films and vilifies plaintiff as a purveyor of propaganda, and that as a result of such vilification clients and constituents will peremptorily reject the ideas that plaintiff hopes to communicate. Defendants argue that plaintiff has not demonstrated that their acts are causing or will cause plaintiff to suffer the injury alleged because there is an independent actor, the public, which intervenes between defendants and the plaintiff's injury. See Simon v. Eastern Kentucky Welfare Rights Organization, supra. The Court rejects this argument since the injury of which plaintiff complains is the handicap placed upon him as an entrant into the marketplace of ideas by the statute's opprobrious characterization of plaintiff's chosen medium of expression. If the statute's characterization does indeed handicap plaintiff's ability to communicate his ideas, then it is defendants' enforcement of the statute which is the cause of plaintiff's injury. VIII A third prerequisite to a demonstration of standing is that plaintiff complain of an injury which is susceptible of judicial remedy. Simon v. Eastern Kentucky Welfare Rights Organization, supra. In this case, plaintiff has asked the Court to enjoin defendants from acting pursuant to an allegedly unconstitutional statute which denigrates the three films at issue. Because it is the statute which is alleged to distort the free exchange of ideas, and because defendants are the federal officials charged with the enforcement of the statute, and because the proper defendants are before the Court, Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 690, 69 S. Ct. 1457, 1461, 93 L. Ed. 1628 (1949), Philadelphia Co. v. Simpson, 223 U.S. 605, 620, 32 S. Ct. 340, 344, 56 L. Ed. 570 (1912), an injunction directed to these defendants will provide plaintiff with the desired relief. Defendants again argue that an injunction may not provide plaintiff with the relief sought, because his constituents, colleagues, and clients may nevertheless react negatively to his exhibition of the films. This argument is likewise rejected by the Court because defendants fail again to distinguish between plaintiff's willingness to risk the disapproval of his constituents and clients based on the merits of his ideas and his unwillingness to risk their disapproval based on his exhibition of films which defendants 1519 have officially branded as "political propaganda." Defendants' argument that an injunction will not remedy the injury because plaintiff's constituents and clients may still disapprove of plaintiff's exhibition of these three films, even without the official characterization as "political propaganda," is irrelevant and quite possibly disingenuous. IX While plaintiff has standing to complain that the statute by its terms violates his constitutional rights, he does not have standing to complain of the labelling requirement of § 4 per se. The uncontradicted affidavit of defendant Clarkson establishes that plaintiff has no obligation with respect to the label, and that plaintiff is free to remove the label if he chooses.[2] Plaintiff is not, therefore, injured in any way whatsoever by the labelling requirement. B. Sufficiency of the Complaint X Plaintiff has stated a cause of action upon which relief can be granted. Indeed, it does not appear that defendants really contend that the complaint suffers from any formal defects. The complaint adequately if imperfectly alleges that defendants are the officers to whom enforcement of the Foreign Agents Registration Act is assigned, that they have acted in such a way as to cause plaintiff injury, purportedly under the authority of the Act, and that their conduct is malfeasance, because the Act under which they claim authority violates the United States Constitution. These allegations are sufficient to state a claim for relief. Defendants' motion to dismiss actually urges this Court to adjudicate the merits of plaintiff's claim, i.e., that the complaint fails to state a claim for relief because the statute under which they act is constitutional. A motion to dismiss for failure to state a claim is not an appropriate vehicle to obtain an adjudication of the constitutionality of a statute. Indeed, a motion for judgment on the pleadings once a response has been filed, Aldabe v. Aldabe, 616 F.2d 1089 (9th Cir.1980), or in the alternative a motion summary judgment would appear to the Court to be the more appropriate of motions available to the defendants under the given circumstances. C. Preliminary Injunction XI An applicant for a preliminary injunction is entitled to relief if he demonstrates either probable success on the merits plus irreparable injury or the existence of serious questions meriting litigation plus a significantly heavier burden of hardships. Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197 (9th Cir.1980). XII There can be no question but that the present action raises a substantial question 1520 warranting litigation. First, the statute unambiguously implicates freedom of speech, which, in the hierarchy of American values, has pride of place. Second, the statute, by focussing on materials that address issues of public policy, is content-sensitive; content-sensitive statutes have long been held to present the most significant threat to First Amendment rights. Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972). Third, the statute, by focussing on materials that address public policy issues, applies to those materials whose protection is the central concern of the First Amendment. Buckley v. Valeo, 424 U.S. 1, 14, 96 S. Ct. 612, 632, 46 L. Ed. 2d 659 (1976); Williams v. Rhodes, 393 U.S. 23, 32, 89 S. Ct. 5, 11, 21 L. Ed. 2d 24 (1968) ("Competition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms."). XIII Defendants' argument that plaintiff's action lacks merit because the Foreign Agents Registration Act has previously been found to be constitutional is unpersuasive. The subparts of the Act that have been adjudicated constitutional are not the subparts that are challenged by this action. See, Attorney General v. The Irish People, Inc., 684 F.2d 928 (D.C.Cir.1982) (duty of agents of foreign principals to register); United States v. Peace Information Center, 97 F. Supp. 255 (D.C.D.C.1951) (same); Attorney General v. Irish Northern Aid Committee, 346 F. Supp. 1384 (S.D.N.Y.), aff'd, 465 F.2d 1405 (2nd Cir.1972) (duty of agents of foreign principals to make books and records available for inspection). No court has ever held that Congress acted constitutionally when it chose to characterize all materials originating from a foreign source and addressing public policy issues as propaganda. Cf., Lamont v. Postmaster General, 381 U.S. 301, 85 S. Ct. 1493, 14 L. Ed. 2d 398 (1965). XIV Defendants' contention that the challenged provisions of the Act are constitutional because they advance a compelling public interest is likewise unpersuasive. Defendants identify as compelling Congress' interest in assuring that citizens are given some means of sensibly assessing the credibility of certain materials by requiring the identification of their source. Even assuming arguendo that this interest is compelling,[3] a proposition about which this Court entertains some doubts, see, Talley v. California, 362 U.S. 60, 80 S. Ct. 536, 4 L. Ed. 2d 559 (1960), the Court rejects the argument that branding all materials of foreign origin as "political propaganda" advances that interest. Congress could easily have imposed an identification requirement without denigrating the affected materials. XV Defendants' contention that the phrase "political propaganda" does not, in fact, denigrate the materials to which it is applied must also be rejected. Defendants suggest that the ordinary individual understands that the phrase "political propaganda" is used as often with neutral connotation as it is with a negative connotation. To the extent that this argument is sincere, it is fatuous. "Political propaganda" is ordinarily and commonly understood to mean material that contains half-truths, distortions, and omissions. To characterize a particular expression of political ideas as "propaganda" is to denigrate those ideas. XVI Defendants strongly urge the Court to accord great deference to Congress' ability to create a term of art, in this case "propaganda" in a non-pejorative sense. With this proposition, in the abstract, the Court has no dispute. Indeed, in Perrin v. United States, 444 U.S. 37, 42, 100 S. Ct. 311, 315, 62 L. Ed. 2d 199 (1979), the United States Supreme Court noted: 1521 A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning. Burns v. Alcala, 420 U.S. 575, 580-581, 95 S. Ct. 1180, 1184, 43 L. Ed. 2d 469 (1975). (emphasis supplied) There are, however, several reasons why this Court cannot simply defer to the particular Congressional definition which defendants seek to have this Court apply. XVII It is well-established that courts must not defer to Congress when adjudicating the constitutionality of statutes which implicate rights guaranteed by the First Amendment. On the contrary, courts are obliged to subject these statutes to "exacting scrutiny." First National Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98 S. Ct. 1407, 1421, 55 L. Ed. 2d 707 (1978); Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S. Ct. 1535, 1544, 56 L. Ed. 2d 1 (1978); United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4, 58 S. Ct. 778, 783, 82 L. Ed. 1234 (1938). XVIII In the instant case, exacting scrutiny leads to the tentative conclusion that Congress did, in fact, intend to denigrate the affected materials by the use of the term "political propaganda". In particular, the legislative history of the Foreign Agents Registration Act prompts the conclusion that Congress used the phrase "political propaganda" in a derogatory sense. The Act was enacted in 1938, "as a result of recommendations of the special committee that was appointed by the Seventy-third Congress to investigate un-American activities." H.R.Rep. No. 1381, 75th Cong., 1st Sess. 1 (1937). Congress knowingly used the word "propaganda" as a term of opprobrium: Incontrovertible evidence has been submitted to prove that there are many persons in the United States representing foreign governments or foreign political groups, who are supplied by such foreign agencies with funds and other materials to foster un-American activities, and to influence the external and internal policies of this country, thereby violating both the letter and spirit of international law, as well as the democratic basis of our own American institutions of government. Evidence before the Special Committee on Un-American Activities, disclosed that many of the payments for this propaganda service were made in cash by the consul of a foreign nation, clearly giving an unmistakable inference that the work done was of such a nature as not to withstand careful scrutiny. As a result of such evidence, this bill was introduced, the purpose of which is to require all persons who are in the United States for political propaganda purposespropaganda aimed toward establishing in the United States a foreign system of government, or group action of a nature foreign to our institutions of government, or for any other purpose of a political propaganda natureto register .... This required registration will publicize the nature of subversive or other similar activities of such foreign propagandists so that the American people may know those who are engaged in this country by foreign agencies to spread doctrines alien to our democratic form of government, or propaganda for the purpose of influencing American public opinion on a political question. .... We believe the spotlight of pitiless publicity will serve as a deterrent to the spread of pernicious propaganda. We feel that our people are entitled to know the sources of any such efforts, and the person or persons or agencies carrying on such work in the United States. Id. See generally, H.R.Rep. No. 200, 74th Cong., 1st Sess. (1935), H.R.Rep. No. 1057, 74th Cong., 1st Sess. (1935). The particular portions of the Act challenged herein were added in 1942, to effectuate the purposes of the Act more directly. See, Amending Act Requiring Registration of Foreign Agents: Hearings on H.R. 6045 1522 Before Subcomm. No. 4 of the House Comm. on the Judiciary, 77th Cong., 1st Sess. 17 (Statement of L.M.C. Smith, Chief, Special Defense Unit, Department of Justice) (1941). Congress was still concerned about the problem of "colored and twisted," id. at 13, presentations of ideas. H.R.Rep. 1547, 77th Cong., 1st Sess. (1941). Congress defined "political propaganda" broadly, not because it was casting about for a neutral term to describe materials appropriately labelled, but because it was determined to prevent any pernicious publications from escaping the statutory net. Hearings, supra at 18. In defining "political propaganda" Congress was trying to describe, clearly and comprehensively, that which it perceived to constitute a threat to the polity, and it used terms which it understood to convey that perception. Congress was acting artlessly when it defined the term "political propaganda." XIX Finally, this Court is somewhat troubled by the scope of the deference to Congressional choice urged by the defendants. While it is true that Congress deserves wide latitude for identifying the proper objects of legislation and for delimiting the scope of its enactments, this latitude is not so great as to amount to a license to use language without regard to its commonly accepted and understood meaning. In short, even Congress must ultimately respect the limits of the English languagea language which is generally considered flexible but not infinitely malleable. Congress may not, for instance, claim Humpty Dumpty's prerogative: "When I use a word," Humpty Dumpty said in a rather scornful tone, "it means just what I choose it to mean,neither more nor less." Carroll, Lewis, Through the Looking Glass (emphasis in the original). This Court therefore harbors some doubt about the power of Congress to select a term which has a widely understood negative connotation and to designate it as a term of art theoretically having no negative connotation. It may be beyond the power of Congress to determine, for example, that all materials addressing public policy issues and originating from foreign sources shall hereinafter be called "poison" or "obscenity." There are words that cannot be stripped on their nuance. The use of such a word as a term of art is, at least, troubling. XX The hardships likely to befall plaintiff from a denial of the preliminary injunction are substantially greater than the hardships to befall defendants from a grant of such relief. The injury of which plaintiff complains is a loss of First Amendment freedoms: every day that the films which plaintiff wishes to exhibit bear the stigma of a characterization as "political propaganda" is a day when the films are unavailable to him as a medium of communication, thus abridging plaintiff's freedom of speech. Beyond peradventure of a doubt, such injury is irreparable. Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976). Moreover, because of the great value placed on First Amendment freedoms, a loss of freedom of speech would necessarily constitute a grievous hardship. By contrast, no injury to defendants, or to the public interest, has been suggested to the Court. The purpose of the labelling requirement of the Foreign Agents Registration Act is to inform the ultimate viewers of the fact that the films were produced by the National Film Board of Canada. The Court has no reason to suppose that the films which plaintiff wants to exhibit would otherwise lack the identifying information. See generally, 17 U.S.C. § 401. XXI Having concluded that plaintiff has adequately demonstrated his entitlement to a preliminary injunction under one of the two applicable standards, the Court intimates no view on plaintiff's entitlement to a preliminary injunction under the remaining standard. XXII Although plaintiff has no standing to complain of the labelling requirement per 1523 se, the Court concludes that it is impossible to give plaintiff any effective relief pendente lite without exempting the films which plaintiff wants to exhibit from the requirements of the Act. The labelling requirement only has application to those materials termed in the statute "political propaganda." It is the term "political propaganda," however, about which plaintiff complains, and this Court has determined that there is sufficient basis in law and fact to enjoin the defendants from so characterizing the films. Without such a characterization there is no basis for imposing the labelling requirement. The definition of "political propaganda" is an inextricable element of § 4 of the Act, and so long as defendants are enjoined from employing that definition, they must be enjoined from requiring labelling and reports in accordance with § 4. XXIII To the extent that any of the foregoing Findings of Fact are deemed to be Conclusions of Law or to the extent that any of the foregoing Conclusions of Law are deemed to be Findings of Fact, the same shall be deemed Conclusions of Law or Findings of Fact as the case may be. ORDER For the reasons as set forth herein, IT IS HEREBY ORDERED that defendants, their representatives, agents, servants, employees, attorneys and all persons, agencies, and entities who act in concert with them are forthwith enjoined from imposing any of the requirements of the Foreign Agents Registration Act on the films If You Love This Planet, Acid From Heaven, and Acid Rain: Requiem or Recovery pending the disposition of this action. IT IS FURTHER ORDERED that pursuant to the provisions of Rule 65(c), F.R. Civ.P., plaintiff shall post security with the Clerk of the Court in the sum of $1,000.00, said sum to secure payment of any and all costs and damages as may be incurred by defendants if ultimately found to be wrongfully enjoined and/or restrained. NOTES [1] The fact that the plaintiff plans to exhibit the films in a non-commercial context can reasonably be inferred from the four corners of the complaint. The plaintiff is not in the movie business, and his stated reason for wanting to exhibit the films is to influence public opinion on the issues addressed. An amendment to the complaint to make this fact explicit would not, therefore, be unwise. [2] The Court notes that no reasonable reader of the statute and regulations could have imagined that the recipient of the material was free to remove the label. While the statute clearly places the affirmative obligation to affix the label on the registrant, the statute likewise is intended to assure that the ultimate recipient of the material is informed that it originated with an agent of a foreign power. For instance, the statute requires that the label be in the language of the material itself, not the language of the foreign power or of the first-tier recipient. The regulations are even more plain. Section 5.400(c), 28 C.F.R., relieves the registrant of the obligation to supply two copies of every film to the Registration Unit, provided that the registrant demonstrates or certifies that the required label "has been made a part of the film." Section 5.402(e) requires the registrant "to insert at the beginning of a [still or motion picture] a statement which is reasonably adapted to convey to the viewers thereof such information as is required ...." Since the chief importance of the labelling requirement is obviously to inform viewers of the origins of the film, it is frankly surprising to learn that exhibitors of material covered by the Act may, with impunity, frustrate Congressional intent. However, the Court must defer to a consistently applied agency interpretation of its own regulations, Ehlert v. United States, 402 U.S. 99, 105, 91 S. Ct. 1319, 1323, 28 L. Ed. 2d 625, and the agency interpretation of its regulations and the statute effectively eliminates this aspect of plaintiff's challenge to the Act. [3] This Court entertains no doubts that an identification of the source is reasonably likely to assist the reader or viewer in evaluating the weight to be given to a particular piece of advocacy. Indeed, this would seem to be one of the major, unspoken premises of the law.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2857662/	IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-92-100-CR MARK EDWARD PIERCY, APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT NO. CR-91-72, HONORABLE CHARLES R. RAMSAY, JUDGE PER CURIAM A jury found appellant guilty of unauthorized use of a vehicle. Tex. Penal Code Ann. § 31.07 (West 1989). The district court assessed punishment, enhanced by previous felony convictions, at imprisonment for thirty-six years. In his first point of error, appellant complains that the district court refused to grant a continuance of his trial and appoint an expert to examine appellant relative to his sanity at the time of the offense. Appellant's brief contains no argument or citations of authority in support of the point. Appellant did not file a written motion for continuance. Tex. Code Crim. Proc. Ann. art. 29.03 (West 1989). We have examined the statement of facts at the pages referred to in appellant's brief and find no oral motion for continuance. Insofar as the alleged denial of a continuance of trial is concerned, nothing is presented for review. Appellant did not file a notice of intention to offer evidence of the insanity defense. Tex. Code Crim. Proc. Ann. art. 46.03, §§ 2(a), 3(a) (West 1979). At the time appellant orally requested the appointment of an expert, the only factual support for the motion was counsel's brief hearsay statement relating a conversation he had with a doctor in San Antonio. No attempt was made to call this doctor to testify, nor was any affidavit from the doctor tendered. Under the circumstances, the court did not abuse its discretion by refusing to appoint an expert to examine appellant. The first point of error is overruled. In his second point of error, appellant contends that trial counsel rendered him ineffective assistance. Appellant's argument in support of this contention, in its entirety, is that "[t]rial counsel in this case angered the jury during voir dire and prejudiced defendant's case by quizzing the jury at length unnecessarily and by making numerous, worthless objections throughout the entire trial." Appellant's brief does not refer this Court to any page in the record at which trial counsel prejudicially "quizzed" the jury, otherwise angered the jury during voir dire, or made a "worthless" objection during trial. Nothing is presented for review. Cook v. State, 611 S.W.2d 83, 87 (Tex. Crim. App. 1981). Point of error two is overruled. The judgment of conviction is affirmed. [Before Justices Powers, Aboussie and B. A. Smith] Affirmed Filed: October 7, 1992 [Do Not Publish]	01-03-2023	09-05-2015
https://www.courtlistener.com/api/rest/v3/opinions/1518981/	569 F. Supp. 612 (1983) PELLEPORT INVESTORS, INC., a corporation, Plaintiff, v. BUDCO QUALITY THEATRES, INC., a corporation, also known as Budco, Inc., and as Budco Theatres, Does 1 through 100, Inclusive, Defendants. No. 83-3728 AWT. United States District Court, C.D. California. August 12, 1983. Jay R. Ziegler, Buchalter, Nemer, Fields, Chrystie & Younger, Los Angeles, Cal., for plaintiff. Henry N. Jannol, Los Angeles, Cal., for defendants. MEMORANDUM OPINION AND ORDER TASHIMA, District Judge. This is a breach of contract action for alleged failure to pay the agreed rental fees for the rental of various theatrical motion pictures. Plaintiff is the assignee of American Cinema Releasing, Inc., a California corporation, owner of the prints which are 613 the subject of the agreements. The action was removed from state court by defendant Budco Quality Theatres, Inc. ("Budco"), the only defendant who has appeared in this action. Budco is a Pennsylvania corporation whose principal place of business is in Doylestown, Bucks County, Pennsylvania. Removal is predicated on diversity of citizenship, the existence of which is not challenged. Before the Court now is plaintiff's motion to remand the action to state court. Although a number of grounds are set forth in support of the motion, only one need be addressed that Budco has agreed that disputes arising out of the film rental agreements will be litigated in California state courts.[1] Each of the agreements sued on contains the following forum selection clause: Exhibitor [defendant] expressly agrees that any and all disputes arising out of or in connection with this Agreement shall be litigated only in the Superior Court for Los Angeles, California[[2]] (and in no other), and Exhibitor hereby consents to the jurisdiction of said court.... Plaintiff contends that this is a valid, binding and reasonable forum selection clause of a commercial agreement. Defendant contends that it is invalid because it contravenes federal policy as embodied in the removal statute and the case law construing it and that its application here is unreasonable. The parties rely on opposing lines of cases, both of which find their origin in the dictum in Insurance Co. v. Morse, 87 U.S. (20 Wall.) 445, 22 L. Ed. 365 (1874). That case involved the validity of a Wisconsin statute which required a foreign insurance company, as a condition to the right to transact business in that state, to agree that it would not remove any suits commenced against it in Wisconsin to federal court. The statute was held to be unconstitutional and void. However, in broad dictum, the court stated that "agreements in advance to oust the courts of jurisdiction conferred by law are illegal and void." Id. at 451, 22 L. Ed. 365. Most of these cases are collected and analyzed in Perini Corp. v. Orion Ins. Co., 331 F. Supp. 453 (E.D.Cal. 1971). See also Colonial Bank & Trust Co. v. Cahill, 424 F. Supp. 1200, 1202-03 (N.D.Ill. 1976) (contractual language insufficient to constitute express waiver). Were matters to end there, the question might still be considered open for debate. However, the Supreme Court has since decided The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972). That case involved the enforceability of a forum selection clause under an international towage contract which provided that disputes under the contract, "must be treated before the London Court of Justice." The Court there held that "a freely negotiated private international agreement, unaffected by fraud, undue influence, or overweening bargaining power ... should be given full effect." Id. at 12-13, 92 S.Ct. at 1914-1915 (footnote omitted). The Bremen also expressly limited Insurance Co. to situations involving state statutory limitations on the right of removal as a prerequisite to doing business in the state. 407 U.S. at 9-10 n. 10, 92 S.Ct. at 1913 n. 10. The Court stated that, "in the light of present-day commercial realities ... we conclude that the forum clause should control absent a strong showing that it should be set aside ... The correct approach would have been to enforce the forum 614 clause specifically unless Zapata could clearly show that enforcement would be unreasonable and unjust...." Id. at 15, 92 S.Ct. at 1916. The "heavy burden" of the required "strong showing" is "not only that the balance of convenience is strongly in favor of trial in [the U.S. District Court at] Tampa ..., but also that a London trial will be so manifestly and gravely inconvenient to Zapata that it will be effectively deprived of a meaningful day in court...." Id. at 19, 92 S.Ct. at 1918. Given that standard for testing the enforceability of an international forum selection clause, the enforceability and reasonableness of a domestic forum selection clause, involving only a choice between a state and federal court, would appear to be an a fortiori case. And while it is true in this case that the forum selection clause also acts as a "removal waiver" clause, that fact is insufficient to justify disregarding the reasons advanced in The Bremen for upholding the validity of such provisions in a commercial context. While defendant challenges the reasonableness of enforcing the forum selection clause in this case, the reasons advanced amount to no more than the usual "convenience of parties and witnesses" ground under 28 U.S.C. § 1404(a).[3] Again, the Court's observation in The Bremen is directly applicable: Of course, where it can be said with reasonable assurance that at the time they entered the contract, the parties to a freely negotiated private ... commercial agreement contemplated the claimed inconvenience, it is difficult to see why any such claim of inconvenience should be heard to render the forum clause unenforceable. 407 U.S. at 16, 92 S.Ct. at 1916-17. I find that Budco has not carried its burden under the test of The Bremen to render enforcement of the forum selection clause unreasonable.[4] ORDER Because, as a matter of law, I conclude that the forum selection clause at issue here is valid and enforceable, unless enforcement would be unreasonable in the circumstances, and I find that enforcement is not unreasonable. IT IS ORDERED that this action be and hereby is remanded to the Superior Court of the State of California for the County of Los Angeles. NOTES [1] Plaintiff also contends that the inclusion of fictitiously named defendants defeats diversity jurisdiction; that, although the complaint seeks $246,319.73 "from defendants, and each of them," the jurisdictional amount in controversy of 28 U.S.C. § 1332(a) has not been met with respect to each defendant; and, that given that above defects, Budco has not demonstrated the existence of a separate and independent claim against it under 28 U.S.C. § 1441(c). The latter contention also raises the issue of pendent party jurisdiction. [2] This is obviously a misnomer for the Superior Court of the State of California for the County of Los Angeles, which is the only superior court located at Los Angeles, California. That, in fact, is the court where this action was commenced and the parties do not dispute that that is the forum referred to in this clause. [3] Among the pending motions in this case is defendant's motion, in the alternative, for change of venue under § 1404(a). Because I grant the motion to remand, I do not reach that or the other of defendant's pending motions. [4] Defendant also claims that the forum selection clause is inapplicable to some of plaintiff's claims because of defendant's "belief" that some of the claimed rentals are based on oral agreements, which do not include the forum clause. However, it is clear from a review of the complaint that all of the claims are based upon written contracts. While the complaint also pleads several common counts, under California practice the specifically pleaded count controls. E.g., Jones v. Daly, 122 Cal. App. 3d 500, 510, 176 Cal. Rptr. 130 (1981). On the removal/remand issue, defendant is bound by the allegations of the complaint. Cf. Alton Box Board Co. v. Esprit De Corp., 682 F.2d 1267, 1274 (9th Cir.1982) (anticipated federal defense does not establish federal question jurisdiction).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519053/	242 A.2d 407 (1968) Sidney DAWSON v. RHODE ISLAND AUDITORIUM, INC. No. 113-Appeal. Supreme Court of Rhode Island. June 3, 1968. Reargument Denied June 19, 1968. 409 Edward I. Friedman, Mary Ellen McCabe, Providence, for plaintiff. Keenan, Rice & Dolan, John T. Keenan, Providence, for defendant. OPINION KELLEHER, Justice. This is a negligence action which was tried before a superior court jury and resulted in a verdict for the defendant. Thereafter the trial justice granted the plaintiff's motion for a new trial. The case is before us on the defendant's appeal from the superior court's dismissal of its motion for a directed verdict and its granting of the plaintiff's motion for a new trial. The defendant owns in the city of Providence the Rhode Island Auditorium, Inc. 410 which it operates as a place for the public use and entertainment. The plaintiff was a professional basketball player who toured the country as a performer with the Harlem Magicians, a team known as much for their farcical antics on a basketball court as they are for their skill as players of the game. On March 12, 1962, the Harlem Magicians appeared at the auditorium to exhibit their comical basketball routine. As part of their usual pre-game warm up, the Harlem Magicians would assemble in a circle near the middle of the court and commence a display of unusual dexterity and wizardry in the art of ball handling and passing. At the completion of this facet of their performance on that evening, plaintiff was to leave the "magic circle," as it is so billed, dash toward the basket, receive a soft "lead" pass from a teammate and thereafter was to utilize his 6'8" 250-pound frame to good advantage by propelling himself through the air and at the height of his leap, "dunk" the basketball through the "hoop." In the parlance of the basketball world, a player has performed a "dunk shot" when he successfully lifts the ball to a level of height above the basket and thereafter forcefully hurls the ball down through the basket in a missile-like fashion with vigor and strength. This difficult ritual, when executed with grace and style, invariably evokes spontaneous responses of excitement and appreciation from those spectators familiar with the sport. In accordance with this rehearsed procedure, plaintiff broke from the huddled circle of teammates, proceeded with increasing speed toward the basket but, just as he was about to receive the expected pass from one of his teammates, he slipped on "something slick" and fell with a hard bang hitting his left knee, twisting his back, and striking his head on the wooden floor of the basketball court. Aside from the crashing ignominy he doubtlessly suffered from this mishap, plaintiff sustained serious injuries which he claims have prematurely caused him to terminate his activities as a professional athlete. Testimony elicited at the trial indicates that what caused plaintiff's unexpected tumble was a puddle of water which plaintiff claims had accumulated on the floor as a result of a leaky roof over the playing court. Additional evidence was introduced through the testimony of a local meteorologist from the United States weather bureau for the Providence area. He told the court that on March 12, 1962, Rhode Island was under siege of a "northeaster" with all the hard driving rain and high winds which normally accompany such storms. Meteorological records indicated that 1.61 inches of rain mixed with some snow and sleet descended on the state during the course of the day and evening in question. This storm began at 6:25 in the morning and continued in varying intensity until after midnight. The plaintiff's complaint[1] contains four counts each of which fashions a different theory of recovery but all of which sound in negligence. The varied allegations contained in these counts may be summarized as follows: defendant failed to furnish a reasonably safe surface on which plaintiff could properly perform his duties as a basketball player because, first, defendant allowed water to accumulate on the floor; second, defendant permitted such water to remain on the floor; third, defendant failed to warn plaintiff of the hazardous conditions of the playing surface caused by the presence of water thereon; and fourth, defendant maintained a roof over the playing court which, because of its state of disrepair, was prone to leak and cause water to accumulate on the floor, 411 which accumulation resulted in treacherous underfooting. The plaintiff also alleged that defendant had actual or constructive notice of these conditions. Under the posture of this appeal, defendant asks us to rule on two points; first, the trial justice's denial of its directed verdict and second, the trial justice's granting plaintiff's motion for a new trial. We shall review them seriatim. Denial of Directed Verdict At the conclusion of plaintiff's case, defendant without resting moved for a directed verdict which motion the trial justice denied. Thereupon, defendant opened its case and at the completion of all the evidence, defendant renewed its motion for a directed verdict which motion was again denied. It is the second motion for a directed verdict with which we are concerned on this appeal as defendant is deemed to have waived its rights to seek review for the denial of the first motion once evidence was introduced on its behalf. See rule 50 of the rules of civil procedure for the superior court and reporter's notes thereon. In considering a motion for a directed verdict, the trial justice has a clearly defined duty. He must view all the evidence in the light most favorable to the party moved against and is obliged to give the non-movant the benefit of all reasonable and legitimate inferences which may properly be drawn therefrom, without, of course, sifting or weighing the evidence or exercising his independent judgment as to the credibility of those witnesses who have testified before him. Nicholson v. Narragansett Tastee-Freez Co., 101 R.I. 323, 222 A.2d 776; Gaudette v. Carter, 100 R.I. 259, 214 A.2d 197; Marsh v. Bliss Realty, Inc., 97 R.I. 27, 195 A.2d 331. If, after taking such a view, the trial justice finds that there exists issues upon which reasonable men might draw conflicting conclusions, the motion for the directed verdict should be denied and the issues should be left for the jury to determine. Morrarty v. Reali, 100 R.I. 689, 219 A.2d 404; 5 Moore's Federal Practice (2d ed.), ¶ 50.02 [1], p. 2320. In reviewing the trial justice's decision on a motion for a directed verdict the supreme court reviews all the evidence in the same manner and fashion as is expected of the trial justice and is bound by the same rules as those which govern him. Hill v. A.L.A. Construction Co., 99 R.I. 228, 206 A.2d 642; Priestly v. First Nat'l Stores, Inc., 95 R.I. 212, 186 A.2d 334. In conformance with the above-mentioned rules, we have reviewed all the evidence which was before the trial justice at the completion of the case and we are of the opinion that he correctly denied defendant's motion for a directed verdict. In our judgment, the evidence in the record, considered in a complexion most advantageous to plaintiff, indicates that there existed several controvertible issues of fact which warranted their being sent to the jury for determination. For instance, the evidence in this case raised the issue of whether or not, on the facts testified to at the trial, defendant could be charged with the notice of either the leaks in its roof or the water later discovered on the floor; furthermore, if defendant was deemed to have had notice of these conditions, there existed the issue of whether or not it had taken such reasonable steps in the exercise of due care to assure plaintiff of a reasonably safe place on which he could exhibit his basketball skills. As to the issues of notice and due care, each side took a position contrary to the other, and each party introduced evidence in support of its position. Under such circumstances it would have been inappropriate for the trial justice to have granted the motion for a directed verdict. Accordingly, therefore, we affirm his decision denying defendant's motion. 412 Granting of a New Trial On a motion for a new trial, the trial justice has a clearly defined duty under our law. He must utilize his superior judgment by independently reviewing all of the material evidence, passing upon the weight thereof, and determining the amount of credibility which he believes should be attached to the witnesses who appear before him. In carrying out this important function, the trial justice is permitted to reject some evidence or testimony, either because it was impeached, or contradicted, or because other circumstances render it inherently improbable; he may also draw inferences which are reasonable in view of the testimony and evidence which are in the record. Barbato v. Epstein, 97 R.I. 191, 196 A.2d 836. Upon scrutinizing all the evidence in the fashion and manner outlined in Barbato, the trial justice must then relate in his ultimate decision those portions of the evidence which he rejects, those principal witnesses who in his opinion are worthy of belief or disbelief, those inferences and conclusions he has drawn and the reasons which influence his determination. Israeloff v. Whitehall Taxicab Co., 96 R.I. 231, 190 A.2d 588. After conforming with the above requirements, the trial justice must elect one of two paths to follow; first, in those instances in which his judgment tells him that the evidence is so evenly balanced that reasonable men could arrive at different results in the consideration of the case, he is obliged to deny the motion and to affirm the verdict. Waltz v. Aycrigg, 103 R.I. 109, 235 A.2d 338. On the other hand, in those instances when the trial justice is satisfied that the verdict is contrary to the fair preponderance of the evidence and thereby fails either to respond to the merits of the controversy or to bring substantial justice to the parties, the motion must be sustained and the verdict set aside. New England Window Co. v. Bacon, 98 R.I. 443, 204 A.2d 433. On appeal from an adverse ruling on a motion for a new trial in cases where the trial justice properly performs his function as outlined in Barbato, the appellant must persuade this court that the trial justice in deciding the motion was clearly wrong or overlooked or misconceived material evidence on a controlling issue in the case. Labbe v. Hill Bros., Inc., 97 R.I. 269, 197 A.2d 305. In the instant case the trial justice has distinctly complied with the requirements asked of him in considering plaintiff's motion. Having done so, the only question remaining for us to determine is whether or not he was clearly wrong in granting plaintiff's motion. A proper resolution of this question requires us to examine some of the evidence and to comment briefly on the reasons which the trial justice gave for his decision. The prime contention of defendant in his aspect of the case is that the trial justice was clearly wrong in setting aside the jury's verdict because in its opinion he merely substituted his conclusion for that of the jury's. The defendant insists that the evidence presented at the trial in this case raised a very close question as to whether or not it was negligent. It contends that when a trial justice, after having independently reviewed the record and properly performed his function in regards thereto, is presented with a case in which the evidence is nearly balanced on the issue of negligence, he is without authority to grant a new trial. While we agree with the principle of law advanced by defendant, we cannot accept its characterization of the record. The defendant takes the position that it was free of fault in plaintiff's accident, was at all times in the exercise of due care and, therefore, never breached any duty it owed to plaintiff. Moreover, defendant vigorously asserts that under the facts of this case, it could not be found that it had adequate notice of either the alleged 413 leak in the roof or the existence of water on the basketball floor to warrant a determination that it had breached the duty of care it owed plaintiff. Both parties identify plaintiff as a business invitee of defendant. It is well-established law in this jurisdiction that a landowner owes to a business invitee a duty to use reasonable care to keep his premises in a safe condition for the purposes of the invitation; that an owner is not an insurer of the invitee's safety; that, in order to recover for injuries sustained on the owner's premises, the invitee must allege and prove some specific act of commission or omission by the owner which amounts in the law to a breach of duty owed to him; that the breach of duty was the proximate cause of the injury sustained; and, additionally, the invitee must demonstrate his own freedom from conduct which could be classified in the law as contributory negligence. McVeigh v. McCullough, 96 R.I. 412, 192 A.2d 437; Lapierre v. Greenwood, 85 R.I. 484, 133 A.2d 126; Langley v. F.W. Woolworth Co., 47 R.I. 165, 131 A. 194. Furthermore, we have previously held that the mere establishment of a fall sustained by a business invitee as a result of a slippery floor is not in and of itself evidence of negligence on the part of a landowner. Faubert v. Shartenberg's, Inc., 59 R.I. 278, 195 A. 218. In the present case plaintiff introduced evidence to establish that he slipped and fell on defendant's basketball floor; that a puddle of water, which was subsequently discovered on the floor, caused his fall; that he sustained serious injury as a consequence of the fall; that defendant's roof contained scores of leaks in 1959; and that this leaky condition existed right through the day on which plaintiff was injured. Contributory negligence is not an issue in the instant appeal. The defense thereafter introduced evidence to show that it acted with due care for plaintiff's safety; that it never had actual or constructive notice of the water later found to be on the floor or for that matter of the porous condition of its roof on March 12; and finally that it had taken all reasonable steps which a prudent auditorium owner would take under the circumstances of this case, to wit, having the roof repaired and resurfaced in prior years when leaks were first discovered and having the floor examined by its employees on the evening in question prior to the game. After reviewing the evidence in some detail we feel that defendant's appeal gives rise to one issue which is the very keystone on which the decision of the trial justice in granting the new trial rests. The issue to which we refer is that of notice. The trial justice in his analysis of the facts found that defendant was on notice of both the leaks in its roof and the water on its floor. As may be expected, the position of defendant on this issue is diametrically opposed to that of the trial court. Hence, their differences leave a prime issue to be resolved by us which may be phrased as follows: whether or not the trial justice was clearly wrong in finding that defendant knew or, in the exercise of due care, should have known of either the roof's propensity to leak in wet weather or of the existence of water on the playing surface of the basketball floor on the evening of plaintiff's injury. Our review of the evidence leads us to conclude that the record supports the trial justice's finding. The part of defendant's roof which overhangs the auditorium's basketball court and the tiers of seats which encircle the court contain approximately 53,000 square feet. The roof is peaked and consists of overlapping cement slabs over which a tar-like substance designed to make the roof impenetrable had been applied. Testimony during the trial referred to this part of defendant's premises as the "gabled" portion of the roof. It is clear from the record that the gable roof was leaking badly in the fall of 414 1959 when defendant engaged the services of a roofing repair company. At that time it was estimated that the roof had approximately 387 leaks. The roofing contractor offered to do the job for a contract price of $18,130. The defendant, however, due to its desire to have an opportunity whereby its employees could check on the quality of the work being done and because of the possibility it could save money on the contract price, decided to have the work done on a cost-plus basis. It is conceded that the roofing contractor would give no assurance that its work would cure the roof of all its leaks. It was agreed, however, that if the auditorium employees would inspect the roof on wet days, identify as best they could the location of leaks which might have survived the prior resurfacing, the repair company would return and attempt to seal the discovered leaks. It was pointed out that the emulsion which was to cover the cement slabs was of such a viscosity that it could only be properly applied during certain times of the year when the outdoor temperature was neither too cold nor too hot. Evidence in the transcript shows that while the first coats had been applied to the roof during 1960 and 1961, supplemental roof repairs continued to be made up through mid 1962. At the trial, it was learned that a few days after March 12, 1962, the date of plaintiff's fall, an examination of the gabled roof revealed that it still contained approximately 30 leaks. Having familiarized ourselves with the transcript in this case, we are of the opinion that defendant should be said to have been on notice of the leaks in its roof from late 1959 through the day of plaintiff's injury. There was evidence introduced at the trial of the continuing existence of leaks in defendant's roof and of repeated resurfacing endeavors which were attempted in order to seal those crevices through which outside precipitation was still passing. Having in mind the chronic leaking condition of its roof, we believe it is not unreasonable to conclude from the instant record that defendant knew or, in the exercise of prudence, should have known that on days or nights on which there occurred heavy precipitation, its roof would permit moisture to penetrate the building. March 12, 1962 was surely a day on which a significant amount of precipitation descended in and about the general vicinity of the auditorium. It is our opinion therefore that on that day defendant could reasonably expect that its roof would leak. As to the trial justice's conclusion that defendant was on notice of the water on its floor, we are also in agreement. The testimony in the transcript justifies the inference of constructive notice drawn by the trial justice. Specifically, we refer to the remarks made by Jess L. Garrett, the basketball referee, who travels with the Harlem Magicians. He testified that he observed "puddles" of water on defendant's floor on the evening of March 12, a few moments after plaintiff had fallen; he also stated that he had rushed to plaintiff's aid immediately after witnessing him slip and that, as he attempted to assist plaintiff to his feet, he noticed the floor was wet in spots; he further indicated that he discerned a puddle of water which had a circumference of about three feet and which was located precisely where plaintiff fell. On cross-examination, Garrett further told the jury that he had observed water falling from the roof as the evening progressed. Because of the actual notice of the fact that its roof leaked in wet weather and considering the size and extent of the water which had accumulated on the basketball floor, we concur in the trial justice's finding that defendant knew or should have known of the presence of water on the floor that night. In its argument defendant also contends that since there is nothing in the record which shows that on prior occasions the auditorium roof had leaked in the very area over which plaintiff slipped and fell, 415 it cannot be said to have been on notice of this particular leak or the water which had entered the building via this same leak. This argument is unpersuasive to us. It seems clearly established that defendant was on notice that its roof was still leaking on March 12, 1962. While it is true that defendant may not have had knowledge of the exact location of each leak in its roof, it cannot be seriously maintained that this fact should relieve it from liability. Once defendant is said to have had notice of the leaky condition of its roof, there arose a duty on its part which could only have been discharged by it in one of two ways it had either to arrange for a watertight roof or alternatively it had to advise invitees of the conditions of the premises and the risks which attend these conditions. We must now decide, in view of defendant's knowledge of the leaks and the puddles formed thereby, whether defendant's conduct comports with the standard of due care required of it in its dealings with plaintiff on March 12. Clearly defendant owed a duty of care which required it to take such measures to provide a reasonably safe place for the purposes of the invitation extended to plaintiff, namely, the playing of basketball. Cf. McVeigh v. McCullough, supra. It seems to us, therefore, in the light of the foregoing comments, that in order for defendant to exculpate itself from a finding of negligence on its part, it had to show one of two things: first, that having become aware of the leaky roof, it had undertaken such action which would assure a reasonable auditorium owner that all the leaks in its building were corrected in substance, to make certain that its building was watertight; or secondly, show, as an alternative to eliminating all the leaks, it had apprised plaintiff, before his scheduled performance on the court, of the actual conditions of the building and at the same time issue him a warning of the risk of harm which those conditions presented to anyone choosing to play basketball at defendant's auditorium. See 2 Restatement, Torts 2d, § 343, comment d, p. 217. In regards to the first alternative, it seems clear from the record that defendant's officers and employees never had pursued a course of action which would have given them any assurance that the leaks in the roof would be fully repaired. In his testimony, the president of defendant corporation admitted that the contractor who agreed to repair the roof refused to guarantee its future water repellency. Indeed, at no time during the trial was there an unequivocal declaration made on behalf of defendant that the roof had ever been so rehabilitated as to make it completely leakproof after 1959. With regard to defendant's duty then, and in view of our comments in the preceding paragraph, we are concerned only with the second alternative. It appears very evident from the record that plaintiff was never informed prior to his fall by anyone in the employ of defendant of the leaks in the roof, the water on the floor, or the risk of harm which such conditions created for people playing basketball on defendant's court that night. In our opinion, under the facts of this case, defendant was duty bound both to apprise plaintiff of the conditions of the building as well as to warn him of the dangers which he faced while playing basketball on its court. The defendant's failure to demonstrate by competent evidence that it complied with the exactions of the duty owed to plaintiff rendered it vulnerable to a motion for a new trial setting aside the jury's verdict in its favor. In addition, we assign no weight to defendant's contentions that the trial justice misconceived or overlooked the testimony of either the supervisor of the basketball program at the auditorium or the 416 superintendent of maintenance. As to the supervisor's statement that the basketball floor was free of moisture up until 8 p.m., the trial justice specifically discounted it because of the witness's failure to remember other events which occurred that evening, such as Dawson's fall, and which the trial justice believed should have been recalled by one professing to recollect what actually took place before the basketball game. As to the building superintendent's testimony, the trial justice expressly remarked that he found this witness to be creditable. We note, however, that even when his testimony is regarded in a light most favorable to defendant, it would be insufficient to establish the fulfillment of the duty of care owed plaintiff. The fact that the superintendent stated that he last examined the basketball floor at 7 p.m. on March 12 and found it to be dry and safe for the basketball fame is of no particular consequence. What is important is whether or not defendant had ever fully waterproofed its roof or in the alternative had warned plaintiff of the risk which he and his teammates faced by playing basketball at the auditorium that night. Since the superintendent's testimony established neither fact, it is of little assistance to defendant here. Finally, in regards to those pieces of the evidence to which the defendant's counsel invites our attention as being inconsistent or contrary with the decision of the trial justice, we are likewise unmoved. In response to this portion of counsel's argument, we refer to our rule laid down in DiMaio v. DelSesto, 102 R.I. 116, 228 A.2d 861, wherein we said that the failure of a trial justice to refer to evidence contradictory to that upon which he relied, does not constitute misconceiving or overlooking material evidence provided that the justice referred to those parts of the evidence on which he did rely and indicated contrary evidence was rejected. An attentive reading of his written decision satisfies us that the trial justice fairly indicated the evidence on which he relied as well as that which he rejected. Accordingly we affirm his decision granting the plaintiff's motion for a new trial. The defendant's appeal is denied and dismissed, and the case is remitted to the superior court for further proceedings. NOTES [1] Although plaintiff initiated this litigation by filing a writ and declaration in 1963, the trial was held after the adoption of the new rules of civil procedure for the superior court. In conformance with our pronouncement in Buszta v. Souther, 102 R.I. 609, 232 A.2d 396, we have in this opinion employed the vocabulary of the new rules where appropriate.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519076/	4 Md. App. 222 (1968) 242 A.2d 204 WALTER NATHANIEL GIBSON v. STATE OF MARYLAND. No. 248, September Term, 1967. Court of Special Appeals of Maryland. Decided May 29, 1968. The cause was argued before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ. Raymond Faby (Michael Lee Kaplan and Nathan Stern on brief) for appellant. William E. Brannan, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and James Garrity, Assistant State's Attorney for Baltimore City, on the brief, for appellee. 224 PER CURIAM: Walter Nathaniel Gibson, the appellant, was convicted of two cases of robbery with a dangerous and deadly weapon and one of carrying a concealed weapon, in the Criminal Court of Baltimore, Judge Charles D. Harris presiding without a jury. Gibson contends that the evidence was insufficient to support the verdicts. The evidence adduced at the trial showed that on the night of November 13, 1966, two taxicabs were robbed by two men. The first cab robbed was operated by Thomas Winkey who identified Gibson as one of the two men he picked up that night near Pennsylvania Avenue and Mosher Street. Winkey testified that when he arrived at their destination, Gibson, who was sitting in the front, pulled out a revolver and demanded his money. Gibson and his companion took $25.00 in bills and coins plus some .22 caliber bullets from Winkey's change purse. After the two men departed, Winkey reported the incident along with a description of the two men to his dispatcher. A short time later a second taxicab operated by William Henry was robbed in much the same manner as was the first cab except that Gibson sat in the rear and his companion sat in the front. They took about $22.00, approximately $3.00 being in change. Henry reported the robbery to the first policeman he saw. A few minutes later at approximately 9:30 P.M. Officer Fischer and his partner received a broadcast on the police radio describing the two hold up men, as two colored males wearing long black leather jackets, age 19-23. The broadcast also stated that two men were walking south on Howard Street from Centre. Fischer testified that "[w]e proceeded north on Howard Street and they were the only two fellows right on that street and they fit the description perfectly." The policemen then placed the two men under arrest. A search revealed that Gibson's companion, Edward Williams, was carrying a 7.25 caliber Beretta automatic pistol. A more through search at the station house uncovered that Williams was carrying $4.40 in change and $47.00 in bills while Gibson had nine .22 caliber cartridges and $3.00 in bills. 225 Winkey identified Gibson in a line-up and identified him again in court. Henry identified Williams in a line-up and in court he identified both men. Mr. Winkey described the two robbers as light skinned negroes, 5 foot 10, 150 pounds wearing long black leather coats, one had a bumpy face or needed a shave, age 19-23. Mr. Henry's description was similar except that he described them as dark completed, 145 pounds, age 21-24. To bolster his complaint of insufficiency of the evidence, Gibson contends that the arrest was illegal and that there was a lack of identification. An illegal arrest in and of itself would not vitiate the trial, Boone v. State, 3 Md. App. 11, 30, 237 A.2d 787, but we have no difficulty in holding that the arrest was legal. The evidence seized[1] incident to the arrest was admitted over objection made by appellant's counsel, but only the issue of the legality of the arrest insofar as it affected the legality of the trial itself was raised on appeal. The State has the burden of establishing the existence of probable cause necessary to justify his arrest, Hutchinson v. State, 1 Md. App. 362, 369, 230 A.2d 352. In order for a policeman to arrest a person for a felony *226 without a warrant he "must have reasonable grounds or probable cause to believe at the time of the arrest that a felony had been committed and that the person arrested had committed the offense," Crumb v. State, 1 Md. App. 98, 227 A.2d 369, Michaels v. State, 2 Md. App. 424, 428, 234 A.2d 772. "Information placed on a lookout prepared by a police organization, of which the arresting officer is a part, may constitute probable cause for the arrest," Carwell v. State, 2 Md. App. 45, 48, 232 A.2d 903, Michaels v. State, supra, Crumb v. State, supra. In the case at bar, the policemen received a broadcast over the radio reporting the felonies, describing the hold up men, and giving the area where they might be found. We find that this was sufficient to give the officers probable cause to arrest Gibson and Williams. In a nonjury trial, the judge determines the weight of the evidence and the credibility of the witnesses, Sutton v. State, 2 Md. App. 639, 236 A.2d 301 Sadler v. State, 1 Md. App. 383, 230 A.2d 372. Identification by the victim is enough to convict, Davis v. State, 2 Md. App. 630, 236 A.2d 307, but if there is a lack of postiveness in the identification, this only goes to the weight not the admissibility of the evidence, Logan v. State, 1 Md. App. 213, 216, 228 A.2d 837, and "the weight that should be given the testimony was for the trial court" to decide, Dortch v. State, 1 Md. App. 173, 177, 229 A.2d 148. The evidence as to the identification was sufficient to support the verdict, see Davis v. State, supra. In the two robbery cases there is no serious contention that there was not sufficient evidence to establish the corpus delicti. In the concealed weapon case, Winkey testified that Gibson pulled out a gun from his coat; then demanded the money. Any question that relates to the witness' credibility is for the trial judge to determine, Miller v. State, 1 Md. App. 653, 656, 232 A.2d 548. His determination will not be overturned unless clearly erroneous, Maryland Rule 1086. "[T]here was legally sufficient evidence, or proper inferences therefrom, from which the trial court could find the accused guilty beyond a reasonable doubt," Allen v. State, 2 Md. App. 740, 744-45, 237 A.2d 90. Also see Crosby v. State, 2 Md. App. 578, 588, 236 A.2d 33. Judgments affirmed. NOTES [1] The fact that a more complete search was conducted at the police station would be immaterial. In Abel v. United States, 362 U.S. 217, 238-39, 80 S. Ct. 683, 697, 4 L. Ed. 2d 668, the Supreme Court of the United States stated: "Items (3), (4), and (5), a birth certificate for `Emil Goldfus' who died in 1903, a certificate of vaccination for `Martin Collins,' and a bank book for `Emil Goldfus' were seized, not in petitioner's hotel room, but in a more careful search at I.N.S. headquarters of the belongings petitioner chose to take with him when arrested. This search was a proper one. The property taken by petitioner to I.N.S. headquarters was all property which, under Harris, was subject to search at the place of arrest. We do not think it significantly different, when the accused decides to take the property with him, for the search of it to occur instead at the first place of detention when the accused arrives there, especially as the search of property carried by an accused to the place of detention has additional justifications, similar to those which justify a search of the person of one who is arrested."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518906/	419 Pa. 423 (1965) Yauch v. D'Alessandro, Appellant. Supreme Court of Pennsylvania. Argued October 4, 1965. November 23, 1965. 424 Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ. Samuel M. Rosenzweig, with him Aaron Rosenzweig, for appellant. T. Robert Brennan, with him Brennan and Brennan, for appellee. OPINION BY MR. JUSTICE EAGEN, November 23, 1965: This is an appeal from a judgment entered on a verdict rendered by a jury in favor of the plaintiffs in an action of assumpsit. At trial, the testimony of the plaintiffs (husband and wife) established that they had made two loans, totaling $15,500, to the defendant personally which were never repaid, and had also advanced him the sum of $350 as a deposit on the price of an automobile which was never delivered. 425 The defendant did not testify at trial and no oral evidence was offered in contradiction of the plaintiffs' testimony. However, the defendant, through the cross-examination of the plaintiff, Mrs. Catherine V. Yauch, attempted to show that the money claimed was not loaned to him personally, but rather to a corporation, known as Al D'Alessandro, Inc. At the time the loans were made, Mrs. Yauch was employed by the Al D'Alessandro corporation as a bookkeeper. During her cross-examination, books of the corporation, which showed the loans entered therein as corporate loans, were identified and permitted in evidence. These entries were admittedly made by Mrs. Yauch in her capacity as the corporation's bookkeeper. Hence, the defendant-appellant argues that the plaintiffs' own evidence proved the loans were corporate, rather than personal, and that he was entitled to either a directed verdict or judgment n.o.v. What the defendant overlooks is that Mrs. Yauch explained why the entries were made in the manner described, and that her credibility was strictly a jury question and not one for the court. The case is similar factually to Danko v. Pittsburg Rys. Co., 230 Pa. 295, 79 A. 511 (1911), and the ruling therein is controlling here. See also, Nitch v. Moon, 405 Pa. 474, 176 A.2d 627 (1961), and Brown v. Shirks Motor Express, 393 Pa. 367, 143 A.2d 374 (1958). Judgment n.o.v. was correctly denied. The defendant also maintains that he is at least entitled to a new trial because the court refused to instruct the jury on the weight to be given the so-called written admissions of Mrs. Yauch (i.e., the entries on the corporate records) as against her oral testimony. The evidence concerned did not, in a true sense, constitute written admissions, since they were undeniably made in her capacity as an agent of the corporation and not as an individual. Also, the court defined the *426 issue clearly and adequately for the jury. Under the circumstances, we find no reversible error in the court's failure to charge in the manner requested. Judgment affirmed. Mr. Justice MUSMANNO dissents.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518922/	419 Pa. 326 (1965) Commonwealth ex rel. Santiago, Appellant, v. Myers. Supreme Court of Pennsylvania. Submitted September 30, 1965. November 9, 1965. Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ. 327 Miquel Maldonado Santiago, appellant, in propria persona. William A. Peiffer, Assistant District Attorney, and Edward H. Carney, District Attorney, for appellee. OPINION BY MR. JUSTICE O'BRIEN, November 9, 1965: The appellant, after indictment and trial, was convicted by a jury of murder in the first degree and the sentence was fixed at life imprisonment. Judgment of sentence was entered on October 7, 1963. Subsequently, the appellant filed a petition for a writ of habeas corpus, which was dismissed without hearing. In his petition, appellant sets out three issues which he alleges governs the issuance of a writ of habeas corpus: (1) that his constitutional rights were violated when he was arrested, seized and searched without a warrant; (2) that he was deprived of his constitutional rights because he was without the assistance of counsel at critical stages prior to trial; (3) that his rights were violated when he was held 28 days before he was brought to his preliminary hearing. The appellant first complains that he was arrested without a warrant, and asserts that this is grounds for the issuance of the writ. Our examination of the record reveals that the appellant was arrested only several hours after the commission of the felony and that the appellant was positively identified by 3 eyewitnesses as the person involved in the felony. In Com. ex rel. Whiting v. Rundle, 414 Pa. 17, 198 A.2d 568 (1964), we held, p. 19: "Where a police officer has knowledge of facts and circumstances, which are sufficient to warrant a man of reasonable caution to believe that a 328 certain individual has committed a felony, he may arrest without the necessity of a prior issuance of a warrant." See also Kerr v. Cal., 374 U.S. 23 (1963). The second point raised by the appellant is that he was deprived of his constitutional rights because he was without the assistance of counsel at critical stages prior to trial. This is an all inclusive charge on pretrial procedures. The Supreme Court of the United States has held on many occasions that an accused is entitled to counsel at all critical stages of the criminal litigation. This, however, does not mean that it is error when a petitioner is without counsel at all stages in the pretrial proceedings but applies only to the critical stages of the pretrial proceedings. Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758 (1964). In Pennsylvania, we have held on many occasions, and most recently in Com. ex rel. Lofton v. Russell, 418 Pa. 517, 211 A.2d 427 (1965), that in Pennsylvania, in the absence of unusual circumstances, a preliminary hearing is not a critical stage in the pretrial procedure. Nor, as is pointed out in Escobedo, are the investigative stages considered critical. The appellant in this case gave a statement to the police prior to trial. At the time of the giving of this statement, the appellant did not have benefit of counsel. This statement was later introduced without objection at the appellant's trial, where he was represented by two competent lawyers. Com. ex rel. McCant v. Rundle, 418 Pa. 394, 211 A.2d 460 (1965). Judgment of sentence was entered on October 7, 1963, and no appeal was taken. Inasmuch as judgment of sentence occurred prior to the effective date of Escobedo, as established in Com. v. Negri, 419 Pa. 117, 213 A.2d 670 (1965), Escobedo does not apply in this case. The third point raised by appellant is that his preliminary hearing was not held until 28 days after his arrest. In Com. ex rel. Fox v. Maroney, 417 Pa. 308, 329 207 A.2d 810 (1965), we said that a delay in the holding of a preliminary hearing without more will not, in itself, be grounds for the granting of a writ of habeas corpus. In Com. ex rel. Light v. Maroney, 413 Pa. 254, 196 A.2d 659 (1964), we ruled that there is no time limit within which a preliminary hearing must be held. The preliminary hearing must be held as soon as possible and within a reasonable time, and the time which elapses between the arrest and the preliminary hearing, of course, may not be used to coerce a confession. In this case, however, the appellant alleges the mere passage of time as grounds for granting the writ. The absence of an immediate preliminary hearing for a person arrested does not, of itself, constitute any violation of his constitutional rights. Com. ex rel. Fox v. Maroney, supra. The record reveals that appellant was arrested on March 8, 1963, for murder committed hours before on March 7. He was taken before the committing magistrate on March 8 and pleaded not guilty. He was then taken to the Erie County Jail, where he was lodged. The committing magistrate originally set the preliminary hearing for March 18, 1963, but in the meantime, on March 15, the court appointed Anthony L. Gambatese, Esquire, an experienced trial lawyer, as counsel for the defendant. A hearing was held on April 4, 1963, and the defendant was represented by attorney Gambatese. At the conclusion of the hearing, appellant was held for court. He was indicted and convicted of first degree murder, after trial by jury, on September 20, 1963. In addition to being represented by attorney Gambatese, on July 28 Charles D. Cowley was appointed by the court as assistant counsel to assist Mr. Gambatese in the preparation and defense of appellant. The appellant was sentenced to life imprisonment on October 7, 1963, and did not appeal therefrom. 330 We conclude that there is nothing in the appellant's petition which would warrant the granting of the writ. The lower court correctly refused the petition without a hearing. Com ex rel. Whiting v. Rundle, supra. Order affirmed. Mr. Justice COHEN concurs in the result.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518927/	240 Md. 346 (1965) 214 A.2d 161 WADE v. WARDEN OF THE MARYLAND PENITENTIARY [App. No. 68, September Term, 1965.] Court of Appeals of Maryland. Decided November 12, 1965. The cause was argued before PRESCOTT, C.J., and HAMMOND, HORNEY, OPPENHEIMER and McWILLIAMS, JJ. HAMMOND, J., delivered the opinion of the Court. In this application for leave to appeal from the denial of post conviction relief, the petitioner makes eight contentions, several of which are substantially the same. Judge Prendergast considered six of them, in addition to one not in the written petition but presumably raised at the hearing, but did not deal explicitly with the allegations of illegal arrest and illegal search and seizure. In the lower court the petitioner did not produce any facts to substantiate either of these latter contentions. If it be assumed that petitioner's allegation of illegal arrest is true, the fact that his arrest was illegal would of itself afford him no ground for post conviction relief. Ogle v. Warden, 236 Md. 425; Jackson v. Warden, 235 Md. 689; Duff v. Warden, 234 Md. 646. However, the findings of fact by Judge Prendergast reveal that the contention was not true. The petitioner was apprehended in Chicago ten days after the commission of the crime when agents of the Federal Bureau of Investigation arrested him on a warrant charging unlawful flight from prosecution. While the mere fact that an arrest was illegal affords no grounds for post conviction relief, an illegal arrest plus the use of evidence obtained through the arrest may afford such grounds. Shefton v. Warden, 234 Md. 627. Here the contention of illegally obtained evidence is without significance because the arrest was not illegal. Petitioner offered nothing, other than the bare claim that an illegal search and seizure is ground for post 348 conviction relief, to indicate that any evidence was obtained at the time of the arrest, and it seems highly improbable that ten days after and almost a thousand miles from the commission of the crime the petitioner would have with him, when arrested, any incriminating evidence of the murder or robbery. Another matter which Judge Prendergast did not mention concerns petitioner's request for a free transcript of the original trial. Petitioner stated no reasons why he should be furnished the transcript except that he needed it " * * in order to support his allegations of denial of due process of law * * *." The Post Conviction Procedure Act is silent as to the furnishing of a transcript of the original trial, and without a showing that the transcript would serve a useful purpose, the request is denied. Bauerlien v. Warden, 236 Md. 346; Gamble v. Warden, 223 Md. 633. The vague "fishing expedition" reason furnished by petitioner is not adequate. For the reasons assigned by the lower court in its opinion, as supplemented herein, the application is denied. Application denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518940/	953 S.W.2d 368 (1997) Richard and Susan ZEID, Appellants, v. Dr. William PEARCE, d/b/a Coronado Animal Clinic, Appellee. No. 08-96-00358-CV. Court of Appeals of Texas, El Paso. July 10, 1997. 369 Michael L. Aaronson, El Paso, for Appellant. Steven L. Hughes, Mounce, Green, Myers, Safi & Galatzan, El Paso, for Appellee. Before CHEW, J., and JOHN G. HILL and FARRIS, JJ., Sitting by Assignment. OPINION JOHN G. HILL, Justice (Assigned). Richard and Susan Zeid appeal from the trial court's order dismissing their lawsuit against Dr. William Pearce, d/b/a Coronado Animal Clinic, for veterinary malpractice. The trial court based its order upon the Zeids' failure to amend their petition to seek damages other than for pain and suffering, mental anguish, and loss of earnings. They contend in a single point of error that the trial court erred in sustaining Dr. Pearce's special exceptions and dismissing their lawsuit because pain and suffering and mental anguish are damages that are recoverable for the loss of a pet. We affirm because one may not recover damages for pain and suffering or mental anguish for the loss of a pet. The Zeids alleged in their original petition that they brought their dog, Persephone, to Dr. Pearce for vaccinations. They indicated that Dr. Pearce knew from previous vaccinations that the dog suffered from allergic reactions. According to the petition, Dr. Pearce was negligent and this caused the death of the dog, which went into convulsions after receiving the vaccination. Dr. Pearce filed a special exception to the Zeids' pleading on the basis that such damages are not recoverable in Texas for the death of a dog. The trial court granted Dr. Pearce's special exception in order to afford the Zeids' an opportunity to replead and seek recoverable damages. When the Zeids declined to replead and seek other damages, the trial court dismissed the suit. As previously noted, the Zeids' sole point of error is that the trial court erred in granting Dr. Pearce's special exception and subsequently dismissing their cause of action because pain and suffering and mental anguish are damages that are recoverable for the loss of a pet. In Texas, the recovery for the death of a dog is the dog's market value, if any, or some special or pecuniary value to the owner that may be ascertained by reference to the dog's usefulness or services. Heiligmann v. Rose, 81 Tex. 222, 225, 16 S.W. 931, 932 (1891). We find this longstanding Texas rule to be inconsistent with the Zeids' claim for pain and suffering and mental anguish. The Zeids rely solely on the cases of Bueckner v. Hamel, 886 S.W.2d 368 (Tex. App.Houston [1st Dist.] 1994, writ denied) and Porras v. Craig, 675 S.W.2d 503, 507 (Tex.1984). In Bueckner, the Court held that there was evidence to support damages for the pecuniary value of two intentionally-killed dogs. Bueckner, 886 S.W.2d at 372. In so holding, the Court indicated that although one could not recover damages for the loss of prospective progeny, the breeding potential of the dogs may be considered in determining the value of the breeding animal. Id. at 371. In the case at bar, the Zeids have never sought to recover for the pecuniary value of their dog, only for pain and suffering and mental anguish. It is not the Bueckner opinion itself upon which the Zeids rely, but the concurring opinion by Justice Andell in which he wrote that a pet owner should not be limited to recovery of market value for the loss of a pet but should be able to recover either the market value or the special or intrinsic value of such pets because of the great affection their owners have for them, even though the animal might have no market value. Bueckner, 886 S.W.2d at 378. We first note that Justice Andell's opinion was a concurring opinion, not the majority opinion in Bueckner. However, even if Justice Andell's conclusion 370 is correct, we note that in this case, the Zeids pleaded for damages for pain and suffering and mental anguish, not for the special or intrinsic value of their dog. In Porras v. Craig, 675 S.W.2d 503 (Tex. 1984), the plaintiff brought his case to recover damages for the destruction of certain trees on his property by a neighbor. Id. at 504. The Court reversed the trial court's judgment for the plaintiff, holding that the plaintiff's testimony went to intrinsic value of the trees, rather than market value, and therefore did not support the jury's findings in regard to market value. The Court went on to say that in such a case, if the cutting of the trees did not reduce the market value of the plaintiff's property, then he could receive damages for the intrinsic value of the trees. This case is not helpful to the Zeids because as we have previously noted, the Zeids were seeking damages for pain and suffering and mental anguish, not for the intrinsic value of their dog. We also note that the Texas Supreme Court has held that one may not recover damages for bystander recovery for mental anguish in medical malpractice cases. See Edinburg Hospital Authority v. Trevino, 941 S.W.2d 76, 81 (Tex.1997). We see no reason why the same rule would not apply in cases involving death due to veterinary malpractice. See Downing v. Gully, 915 S.W.2d 181, 183 (Tex.App.Fort Worth 1996, writ denied). Because the Zeids did not plead for damages for the loss of their dog that are recoverable in Texas, the trial court did not err in sustaining Dr. Pearce's special exception and dismissing their cause of action. We overrule the Zeids' sole point of error. The judgment is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518830/	953 S.W.2d 19 (1997) Dr. Perry KNOWLES, Appellant, v. CITY OF GRANBURY and C.W. Smith, Appellees. No. 2-96-215-CV. Court of Appeals of Texas, Fort Worth. August 14, 1997. Rehearing Overruled October 2, 1997. 20 Ned Webster, Hill Gilstrap, P.C., Arlington, for appellant. David T. Moran, Billy R. McGill, Jackson & Walker, L.L.P., Dallas, for appellees. Before LIVINGSTON, DAUPHINOT and RICHARDS, JJ. OPINION DAUPHINOT, Justice. This case stems from an alleged incident involving children, a municipal airport, an open, unlocked hangar, and a private airplane. BACKGROUND FACTS Dr. Perry Knowles stored his 1970 Cessna in a large, locked hangar at Granbury Municipal Airport, which is owned and operated by the City of Granbury. He paid Granbury 90 dollars per month to store the airplane. Although other airplanes were kept in the same 21 hangar, no one except C.W. Smith, the airport manager, and the airport attendant had a key to the hangar. Therefore, no one, not even the owners of the airplanes, could enter the hangar without airport personnel first unlocking it. This security feature was one reason for the amount of the rental fee and for Knowles continuing to store his airplane there. On June 11, 1994, Granbury and Smith allowed the Experimental Aircraft Association (EAA) to hold a "Young Eagles Fly-In" at the airport. Airport personnel unlocked and opened the doors to the hangar in which Knowles's airplane was stored. A former airport attendant heard Smith tell an EAA representative "that it would be permissible to use Dr. Knowles'[s] aircraft for demonstration purposes for the children that morning. Mr. Smith stated that he was sure Dr. Knowles would not mind." An EAA representative later told the attendant that she had seen a child sitting on the tail section of a plane in the hangar. After learning this fact, Smith did not lock or even close the hangar. Around 300 people milled around the hangar that day. That night, airport personnel discovered that several of the planes had been damaged, including Knowles's Cessna. Knowles sued Granbury and Smith for negligence, gross negligence, conversion, and taking private property for public use without just compensation, in violation of the Texas Constitution. In addition, he sued Granbury for breach of an oral contract and breach of a bailment contract. Granbury and Smith filed a motion for summary judgment, arguing that the affirmative defenses of governmental and official immunity barred Knowles's claims against both defendants. They also argued that as a matter of law, no bailment contract was created and no taking occurred. The trial court granted the summary judgment without specifying the grounds. POINT OF ERROR Knowles appeals, bringing one point of error arguing that the trial court erred in granting summary judgment because Granbury waived its sovereign immunity; a material issue of fact exists as to whether the agreement between Knowles and Granbury constituted a bailment; evidence on each element of the taking claim appears in the record; and Smith has no immunity because Granbury improperly delegated the duties of airport management to him, or, alternatively, because he did not satisfy the elements of official immunity.[1] DECISION We hold that A material fact issue exists as to whether a bailment occurred; Summary judgment evidence satisfies all elements of a taking claim, including intentionality; Granbury waived its sovereign immunity; and Smith failed to conclusively establish the defense of official immunity. We therefore reverse the summary judgment of the trial court as to the oral contract, bailment, and taking causes of action and remand for trial on those claims. SUMMARY JUDGMENTS: STANDARD OF REVIEW In a summary judgment case, the issue on appeal is whether the movant met its summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law.[2] The burden of proof is on 22 the movant,[3] and all doubts about the existence of a genuine issue of a material fact are resolved against the movant.[4] Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant.[5] In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence will be disregarded and the evidence favorable to the nonmovant will be accepted as true.[6] Evidence that favors the movant's position will not be considered unless it is uncontroverted.[7] The summary judgment will be affirmed only if the record establishes that the movant has conclusively proved all essential elements of the movant's cause of action or defense as a matter of law.[8] A defendant is entitled to summary judgment if the summary judgment evidence establishes, as a matter of law, that at least one element of a plaintiff's cause of action cannot be established[9] or if the summary judgment evidence conclusively establishes each element of an affirmative defense.[10] When reviewing a summary judgment granted on general grounds, the court considers whether any theories set forth in the motion will support the summary judgment.[11] BAILMENT CLAIM In the motion for summary judgment, Granbury argued that, as a matter of law, no bailment contract was created. For a bailment to occur, there must usually be an express or implied contract, delivery of the property to the bailee, and acceptance of the property by the bailee.[12] Summary judgment evidence shows that, in exchange for a monthly fee of 90 dollars, Granbury housed Knowles's airplane in a locked hangar to which only airport personnel had a key, and that Granbury airport personnel told pilots considering other alternatives that "the care they would receive in the large hang[a]r and the fact that access was limited to the large hang[a]r, provided them a better and safer place to house their aircraft." Nonetheless, Granbury contends that no bailment occurred as a matter of law because control over the plane did not pass to Granbury; that is, because Knowles kept the keys to the plane, no control passed to the city. Granbury relies on two parking lot cases Allright Auto Parks, Inc. v. Moore[13] and Panhandle South Plains Fair Ass'n v. Chappell[14] to support its contention. Those cases are distinguishable. First, the owners of the cars in those cases had the power to go onto those lots and physically take their cars. Knowles did not have that option; he could not even see his airplane without the consent of airport personnel. Airport personnel could not operate the airplane without Knowles's consent, but they could certainly see and touch it, and allow others to do so. Therefore, in the case before us, whether control did in fact pass is a material fact issue. 23 Second, there was no showing in either case relied on by Granbury of any undertaking by the defendant to care for and secure the car. In the case before us, an affidavit attests that the care and security of their airplanes were reasons given the pilots to continue housing their airplanes in the locked hangar. Granbury has therefore not proved that no bailment was created as a matter of law. TAKING Granbury and Smith also argue that, as a matter of law, no taking occurred. Article I, section 17 of the Texas Constitution provides that "[n]o person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made...."[15] To recover under article I, section 17, a plaintiff must show that the government's intentional acts resulted in a taking of the plaintiff's property for public use.[16] Mere negligence on the government's part will not result in a taking.[17] Granbury and Smith argue that, at best, the negligence of Granbury and Smith caused the alleged damage. However, evidence produced by both Knowles and Granbury and Smith indicates that Granbury and Smith chose to host the "Fly-In" and chose to unlock and open the hangar so the public could enter it. The evidence further shows that Smith chose to leave the hangar open even after he was warned that a child had been spotted on an airplane. Because there is summary judgment evidence that Granbury's and Smith's acts were intentional, that they appropriated Knowles's plane for public use, and that the plane was damaged as a result, Granbury and Smith have not established that, as a matter of law, no taking occurred. SOVEREIGN IMMUNITY In its motion for summary judgment, Granbury argued that sovereign immunity bars Knowles's claims against it, excluding the taking claim. Generally, municipalities and other government entities have governmental or sovereign immunity from private litigation.[18] However, this immunity is not absolute. When a governmental entity contracts with a private citizen, it waives immunity from liability, but not immunity from suit.[19] Immunity from suit is waived when the legislature provides the private litigant permission to sue.[20] The entity itself may otherwise waive immunity from suit by conduct exceeding the mere execution of a contract.[21] As a home-rule municipality, Granbury may sue and be sued.[22] Had it wanted to exempt itself from liability, it could have.[23] Instead, Granbury's home rule charter provides that it "may sue, and be sued; may contract and may be contracted with." Because Granbury contracted with Knowles, it waived its immunity from liability. Because the Local Government Code and Granbury's charter provide that the city may be sued, its immunity from suit is also waived. Therefore, Granbury's sovereign immunity defense fails as a matter of law. 24 OFFICIAL IMMUNITY In its motion for summary judgment, Granbury also asserted that Smith had official immunity that insulated both Smith and Granbury from suit and liability. On appeal, Knowles argues that Smith did not have official immunity because he was an independent contractor to whom Granbury improperly delegated the duties of managing the airport. He alternatively argues that the elements of official immunity were not satisfied. Smith's Status as Employee or Independent Contractor Knowles relies on section 22.017(a) of the Texas Transportation Code in arguing that Granbury improperly delegated the duties of managing the airport to Smith. The statute provides: The governing body of a local government by resolution may delegate to an officer, board, or other local governmental agency any power granted by this chapter to the local government or the governing body for planning, establishing, constructing, improving, equipping, maintaining, operating, regulating, protecting, and policing an airport ... established, owned, or controlled by the local government. The resolution must prescribe the powers and duties of the officer, board, or other local government agency.[24] Knowles argues that because no resolution was presented below, Granbury improperly delegated the authority to manage the airport to Smith and therefore he is not entitled to assert the defense of official immunity. However, Knowles cites no authority tying such a technical violation, if any, to waiver of immunity.[25] We are not persuaded by this argument. Furthermore, if Smith was, as Granbury claims, an employee, no delegation would have occurred. But in this case, whether Smith was an employee or an independent contractor is of no legal significance. Although some caselaw states that independent contractors do not enjoy official immunity,[26] this court has recently pointed out that, as a general rule, official immunity does extend to private parties who contract to undertake governmental duties.[27] The record establishes that Granbury's city manager hired Smith to manage the municipal airport. The issue is whether he satisfies the elements of official immunity. Elements of Official Immunity As this court explained last year, To avoid liability on the basis of official immunity, a public official must show that he or she was (1) engaged in the performance of a discretionary function (2) in good faith (3) within the scope of the official's authority.[28] While Knowles states in his brief that "Smith cannot claim that he was merely acting with discretion when he did appropriate and utilize Knowles'[s] aircraft," we do not read this as an argument that Smith was performing a ministerial, rather than a discretionary, act. Therefore, the only issues here are whether Smith performed in good faith an act that was within the scope of his authority. Good Faith A government official does not perform in good faith if his or her conduct "violate[s] clearly established statutory or constitutional rights of which a reasonable person would have known."[29] Plaintiffs 25 must plead specific facts showing which rights were violated.[30] To be entitled to summary judgment, a defendant government official must prove that a reasonably prudent official could have believed the act complained of was proper.[31] To controvert the defendant's proof, the plaintiff must then show that no reasonable person in the official's position could have believed the facts were such that they would justify the official's acts.[32] In his petition, Knowles alleged that Granbury agreed to store his plane in a private, locked hangar, with no access to the general public and that Smith was in charge of the airport. He further alleged that Smith and Granbury decided to open the hangar and use his plane for demonstration purposes in a public exhibition. Finally, he alleged that as a result, his airplane was damaged. These facts are specific enough to support Knowles's allegation that the taking clause of the Texas Constitution was violated.[33] However, Smith has not satisfied the objective good faith test. He focuses on what he believed about his conduct; he offers no evidence that an objective, reasonably prudent officer would have believed he acted properly.[34] Smith has therefore failed to establish the defense of official immunity.[35] Official Immunity Does Not Extend to Bailment and Contract Claims Granbury seems to argue that if Smith had official immunity, Granbury would also be immunized from liability. However, the bailment and contract claims did not name Smith as a party, nor was he a party to the agreement between Granbury and Knowles. We find the argument that a governmental entity who waives immunity from liability by contracting with a private citizen can later revive that immunity based on the official immunity of its human representatives disingenuous and against public policy, given the fact that the government acts, and contracts, through its human representatives. CONCLUSION Granbury and Smith did not establish that the summary judgment evidence failed to satisfy the elements of the taking and bailment claims. Further, they did not establish their own affirmative defenses of sovereign immunity and official immunity as a matter of law. We therefore sustain Knowles's point of error and remand the case for trial on the oral contract, bailment, and taking causes of action. NOTES [1] Knowles acknowledged in his brief and in oral argument that he does not appeal the trial court's judgment on the tort claims. Therefore, the only cause of action remaining to which Smith is a party is the taking claim; Granbury is named in the taking, oral contract, and bailment claims. [2] See TEX.R. CIV. P. 166a(c); Cate v. Dover Corp., 790 S.W.2d 559, 562 (Tex.1990); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). [3] See Acker v. Texas Water Comm'n, 790 S.W.2d 299, 301-02 (Tex.1990). [4] See Cate, 790 S.W.2d at 562; Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). [5] See Great Am., 391 S.W.2d at 47. [6] See Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995); Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984). [7] See Great Am., 391 S.W.2d at 47. [8] See City of Houston, 589 S.W.2d at 678. [9] See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995); Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex.1975). [10] See Muckelroy v. Richardson Indep. Sch. Dist., 884 S.W.2d 825, 828-29 (Tex.App.Dallas 1994, writ denied). [11] See State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993). [12] See Jack Boles Servs., Inc. v. Stavely, 906 S.W.2d 185, 188 (Tex.App.Austin 1995, writ denied). [13] 560 S.W.2d 129, 130 (Tex.Civ.App.San Antonio 1977, writ ref'd n.r.e.). [14] 142 S.W.2d 934 (Tex.Civ.App.Amarillo 1940, no writ). [15] TEX CONST., art. I, § 17. [16] See City of Abilene v. Smithwick, 721 S.W.2d 949, 951 (Tex.App.Eastland 1986, writ ref'd n.r.e.). [17] See Steele v. City of Houston, 603 S.W.2d 786, 790 (Tex.1980). [18] See Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 84 (Tex.1997); City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex.1994). [19] See Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 405 (1997). [20] See id. at 405. [21] See id. at 408 n. 1; see id. at 412-13 (Hecht, J., concurring). The concurring opinion of Justice Hecht, joined by Chief Justice Phillips, Justice Cornyn, and Justice Owen, points out that the Federal Sign holding is narrowly tied to the facts of that case. See id. at 412. Justice Hecht emphasizes that Federal Sign "never tendered performance, never performed services on TSU's property, and never delivered TSU any materials." Id. [22] See TEX. LOC. GOV'T CODE ANN. § 51.075 (Vernon 1988). [23] See id. § 51.077. [24] TEX. TRANSP. CODE ANN. § 22.017(a) (Vernon Supp.1997). [25] See TEX. R. APP. P. 74(f). [26] See Gonzalez v. Heard, Goggan, Blair & Williams, 923 S.W.2d 764, 766 (Tex.App.Corpus Christi 1996, writ denied) (op. on reh'g). [27] See Putthoff v. Ancrum, 934 S.W.2d 164, 174 (Tex.App.Fort Worth 1996, writ denied). [28] Id. at 170 (citing City of Lancaster, 883 S.W.2d at 653). [29] Thomas v. Crow, 862 S.W.2d 719, 721 (Tex. App.Tyler 1993, no writ) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396, 410 (1982)). [30] See id. [31] See City of Lancaster, 883 S.W.2d at 656-57. [32] See id. at 657. [33] See Tex Const., art. I, § 17. [34] See City of Lancaster, 883 S.W.2d at 656-57. [35] We do not reach the issue of whether Smith acted within the scope of his authority.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518861/	214 A.2d 200 (1965) HENDELS INVESTORS OF RHODE ISLAND, INC. et al. v. ZONING BOARD OF the TOWN OF WESTERLY. M. P. No. 1659. Supreme Court of Rhode Island. November 12, 1965. 201 James O. Watts, for petitioners. Frank S. Cappuccio, Town Solicitor, for the Town of Westerly, for respondent. JOSLIN, J. This is a petition for certiorari to review a decision of the respondent zoning board denying the petitioner's application for a special exception under the zoning ordinance to erect a gasoline and service station on a tract of land zoned B-1 Business. The writ issued and pursuant thereto the pertinent records have been certified to this court. The circumscribing limitations imposed by the Westerly town council upon the authority of the zoning board to permit the use sought are contained in sec. VI of the zoning ordinance as amended July 1962. The requirements there prescribed as conditions precedent to an affirmative exercise of the board's discretion to grant an application for an exception are that the use proposed be compatible with neighboring uses and that it neither create a neighborhood nuisance nor hinder the town's future development. We construe the requirement that the proposed use be compatible with neighboring uses within the context of the enabling legislation, Harte v. Zoning Board of Review, 80 R.I. 43, 51, which in the instance of the town of Westerly is a special legislative act. P.L. 1922, chap. 2299, as amended by P.L. 1925, chap. 746. In sec. 1 thereof authority is conferred upon the town council to enact an ordinance dividing the town into districts and to regulate and restrict land uses "in accord with a comprehensive development plan for the entire town and with reasonable consideration, among other things, to the existing character of each section of the town and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the town." (italics ours) When the ordinance requirement of compatibility is read within the context of the restrictions contained in the legislative grant of authority the conclusion is 202 inescapable that the requirement is not satisfied if the proposed use substantially and permanently injures neighboring property. A proposed use to be compatible must be congruous with, tolerant of and have no adverse effects upon existing neighborhood uses. If we were to conclude otherwise, we would deny to the word "compatible" its plain meaning. The board's conclusion "that the granting of this Special Exception would substantially or permanently injure neighboring residential property" finds support in the testimony of a real estate expert that a "gas station in this area will certainly depreciate the value of the [neighboring] properties" and reduce the value of adjoining land. The condition precedent of compatibility with neighboring uses as we have construed it having been negated by the board in its legitimate exercise of the fact-finding process, it was without authority to act affirmatively on the application for an exception. Klowan v. Zoning Board of Review, 99 R.I. 252, 207 A.2d 42; Fitzgerald v. Board of Review, 99 R.I. 221, 206 A.2d 635; Kraemer v. Zoning Board of Review, 98 R.I. 328, 201 A.2d 643. We refrain from either summarizing the conflicting and extensive evidence or examining the several additional reasons advanced by the board as grounds for its action. To do either would serve no useful purpose. Cases like this turn on a narrow question and require neither an extensive summary of the evidence nor a discussion of each of the several grounds upon which a board may have premised its conclusion. So long as the findings lawfully ascertained and based upon competent evidence negative any one of the legislatively-prescribed conditions precedent, the board is without power to grant a special exception. The petition for certiorari is denied and dismissed, the writ heretofore issued is quashed, and the records certified are ordered sent back to the respondent board with our decision endorsed thereon. CONDON, C. J., and POWERS, J., not participating.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518871/	419 Pa. 394 (1965) Allen v. West Mifflin Borough, Appellant. Supreme Court of Pennsylvania. Argued October 7, 1965. November 25, 1965. 395 Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ. R.R. McWhinney, for appellants. T. Robert Brennan, with him Brennan and Brennan, for appellee. OPINION BY MR. JUSTICE COHEN, November 23, 1965: Appellee, John G. Allen, was a policeman for the Borough of West Mifflin when he was "retired" pursuant to Borough Ordinance No. 507 which provides as 396 follows: "(a) Police Officers of the Borough of West Mifflin having a minimum period of total service not less than an aggregate of 20 years in the Borough of West Mifflin, may be retired from active duty with the Borough of West Mifflin, at the age of 61 years, upon appropriate action being taken by the Council of the Borough of West Mifflin." This ordinance requires that the policeman to be retired have both an aggregate of 20 years service and be 61 years old. Thus, age is not the criterion. Presumably, an officer with less than 20 years aggregate total service cannot be retired at age 61 under this ordinance. In Soltis Appeal, 390 Pa. 416, 135 A. 2d 744 (1957), we reaffirmed the position this Court took in Boyle v. Philadelphia, 338 Pa. 129, 12 A. 2d 43 (1940), wherein we said: "Where a bona fide attempt is made by a municipality to improve its police and fire service, and all employees of the same class are treated alike, it would seem that there can be no doubt that the municipality has the right to adopt a plan of demotion and retirement based upon age limitations". (Emphasis supplied.) This ordinance, since it is not based upon age limitations or any other uniform criterion does not treat all members of the class alike. Further, its invocation is dependent upon "appropriate action" being taken by the borough council. Such an ordinance permits arbitrary action. In Commonwealth ex rel. Siani v. City of Wilkes-Barre, 164 Pa. Superior Ct. 529, 67 A. 2d 776 (1949), the Superior Court held an ordinance giving discretion similar to that involved herein to be invalid as violative of civil service status. We find that the present ordinance by permitting termination of employment as a policeman on grounds not specified within the civil service statutes, and which are not uniform, is violative of such statutes, and thus invalid. It is therefore unnecessary to decide whether the ordinance is also unconstitutional. 397 A further question is raised by the delay involved in filing the complaint and adjudicating the present case. Appellee received notice of his October 1, 1963 "retirement" on September 18, 1963. His counsel contacted the borough council on September 26, 1963. Yet no complaint was filed until April 1, 1964. The adjudication and order were not filed until June 1, 1965. In its order of restoration, the lower court gave appellee damages in the amount of full pay from October 1, 1963 to date of order less other earned income during that period. Since these damages are paid from public funds there is a duty incumbent upon the plaintiff not to rest upon his rights, and especially upon the courts to not be dilatory in determining the issues. As Justice CLARKE wrote in United States ex rel. Arant v. Lane, 249 U.S. 367 (1919), "When a public official is unlawfully removed from office, whether from disregard of the law by his superior or from mistake as to the facts of his case, obvious considerations of public policy make it of first importance that he should promptly take the action requisite to effectively assert his rights, to the end that if his contention be justified, the government service may be disturbed as little as possible, and that two salaries shall not be paid for a single service." While we do not think that there has been enough delay and induced reliance to raise the defense of laches to the writ of mandamus here sought, we feel that the lower court should determine whether the delay in filing the complaint was justified by negotiations with the borough or some other action which reasonably delayed the filing of a complaint, and adjust the damages accordingly. Also, the lower court should determine the responsibility for the period between the joinder of issue and final adjudication, and if such responsibility falls on the plaintiff then damages should be further adjusted. 398 Judgment of mandamus affirmed and judgment for damages vacated. Case remanded for further action consistent with this opinion in the assessment of damages. Mr. Chief Justice BELL and Mr. Justice JONES concur in the result.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518895/	569 F.Supp. 1547 (1983) SUDOUEST IMPORT SALES CORPORATION, Plaintiff, v. UNION CARBIDE CORPORATION, Defendant. Civ. No. 82-2483(PG). United States District Court, D. Puerto Rico. September 8, 1983. 1548 Harry A. Ezratty, Philip E. Roberts, San Juan, P.R., for plaintiff. Maggie Correa-Avilés, McConnell, Valdés, Kelley, Sifre Griggs & Ruizsuria, San Juan, P.R., for defendant. OPINION AND ORDER PEREZ-GIMENEZ, District Judge. Plaintiff, Sudouest Import Sales Corporation ("Sudouest"), filed an action on October 14, 1982, against Union Carbide Corporation ("Union Carbide") alleging that the latter terminated without just cause a contract entered between the mentioned parties allegedly for the distribution of defendant's Material Systems Division's products in the Commonwealth of Puerto Rico. Plaintiff alleged that said termination violated plaintiff's rights as provided by Act No. 75 of June 25, 1964, as amended, 10 L.P.R.A. 278, et seq. ("the Act"). Plaintiff's second and third causes of action allege the violation of the contract agreement due to the termination and the damages and losses thereby caused. Plaintiff requested an injunction pendente lite pursuant to Article 3A of the Act, 10 L.P.R.A. 278b-1. Defendant's objection to the same was predicated on the grounds that plaintiff was not a "dealer" protected by the Act; that its issuance would be contrary to the purposes of the Act and the public policy behind it; and in the alternative, that there is a great probability of defendant's success on the merits having existed just cause for the termination. Lastly, defendant opposed by arguing that plaintiff is not protected by the Act, the other two alleged causes of action are without validity since the agreement between the parties provided for termination on written notice. An evidentiary hearing was held on January 26, 1983, to determine if the relationship between the parties was protected by the Act. Plaintiff offered the testimony of its President, Mr. Charles Hinojosa, and several pieces of documentary evidence. Defendant cross-examined plaintiff's witness and offered documentary evidence. This Court, after considering all the evidence offered, denied the request for an injunction pendente lite and expressed that it did not think plaintiff qualified as dealer under the Act with the evidence it had heard. Defendant filed a request for summary judgment on June 25, 1983, alleging that plaintiff was not a "dealer" protected by the Act. In support of the verified request defendant submitted the transcript of the testimony of plaintiff's President as delivered during the January 26th hearing; an affidavit of Mr. Thomas Roper, who is a former employee of Union Carbide Corporation, having worked there from 1965 to 1983, the last fifteen years as marketing manager; the Sales Representative Agreement between the parties dated May 9, 1978; and several national contracts executed between Union Carbide and different companies in the United States. Plaintiff filed an opposition on July 15, 1983, supported by Mr. Hinojosa's affidavit, the Sales Representative Agreement of May 9, 1978; and several documents and correspondence. 1549 After reviewing the documents offered by both parties, the sworn statements, the transcript of the hearing, the answers to the interrogatories, and the allegations, we have determined that the following material facts are not genuinely in issue: 1. Sudouest and Union Carbide executed a Sales Representative Agreement dated May 9, 1978. 2. Union Carbide granted Sudouest as Representative, as per the first paragraph of the Sales Representative Agreement, the right to solicit orders for the sale by Union Carbide of its products (Kemet). 3. Sudouest was notified on July 26, 1982, by Union Carbide that the Sales Representative Agreement was being terminated effective September 1, 1982. 4. Paragraph 11 of the Sales Representative Agreement provides for termination by either party on a thirty-day written notice specifying the effective date of termination. 5. Sudouest had no obligation to purchase defendant's products (Kemet) and did not purchase defendant's products. 6. Sudouest did not carry an inventory of defendant's products. 7. Sudouest did not warehouse defendant's products. 8. Sudouest did not approve the sales of defendant's products, nor approved the orders for defendant's products. 9. Purchase orders of defendant's products had to be sent to Union Carbide for approval and delivery. Sudouest had no voice in the approval or rejection of said purchase orders by Union Carbide. 10. Sudouest did not determine the prices of defendant's products. 11. Sudouest did not invoice the customers on sales of defendant's products. 12. Sudouest did not deliver defendant's products to the purchaser. 13. Sudouest did not assume the risk of credit sales made to Union Carbide's clients visited by it. 14. Sudouest did not engage in collection efforts in relation to defendant's products and merely assisted Union Carbide in the collection of some outstanding bills when called upon by the latter. 15. Sudouest did not execute or close sales contracts for defendant's products. 16. Union Carbide entered into and formalized the sales contracts for its products through its officers, none of which was plaintiff. 17. Sudouest's main function was to fill in purchase orders and transmit them to Union Carbide's offices for their approval. The delivery and invoice was made directly to the purchaser by Union Carbide. 18. The purchase orders were provided by the customers themselves. 19. Union Carbide executed contracts with different corporations in the United States for the sale by Union Carbide of its products to those corporations and to their affiliates or subsidiaries in Puerto Rico. 20. Those contracts were negotiated and executed by Union Carbide's officials in the continental United States. 21. Sudouest did not participate in the negotiations nor actual execution of the contracts. Mr. Hinojosa was merely a bystander in some of these. 22. The type of the Kemet products that could be bought by the different corporations and its subsidiaries or affiliates was already specified in the contracts, as well as the maximum prices of the specified products. The contracts also established the maximum amount they could buy at the agreed prices. 23. Even though the parties to the contracts had no obligation to buy the Union Carbide products pursuant to the national contracts, the material fact is that the products and the sales were promoted by Union Carbide's officials when negotiating the national contracts, and the future sale by Union Carbide of its products was made possible because of the execution of the referred contracts. 24. Without the previous agreements between Union Carbide and the parent companies in the continental United States, 1550 the purchase by the subsidiaries or affiliates in Puerto Rico could not have been possible. 25. Sudouest's President, Mr. Hinojosa, and the two salesmen working for Sudouest visited regularly the different customers in the Island. The visits were done in relation to all the products Sudouest was representing and not particularly or exclusively for Union Carbide's products. 26. When in the course of their visits the defendant's product was needed, employees of plaintiff or its representative would fill in the purchase orders in the order provided by the clients themselves and according to the specifications given by the client. 27. The purchase orders were sent for approval to Union Carbide, who sent the merchandise directly to the customer in Puerto Rico, invoiced the customer, assumed the risk of credit, and collected directly from the client. 28. Union Carbide had to approve the purchase orders and closed all the sales contracts for the products in Puerto Rico. 29. Defective merchandise, if any, was sent back to Union Carbide for replacement. 30. Sudouest only had to intervene once in the repairment of a product. 31. The defendant's products (Kemet) are the finest products available in Puerto Rico. 32. Kemet was Sudouest's finest line. 33. Sudouest published periodic newsletters where defendant's product was mentioned together with the other products Sudouest represented. Sudouest also had paper coasters where it listed all the various product lines it handled in Puerto Rico, including defendant's. 34. Sudouest participated in two trade shows, and Union Carbide's product was one of the products included in the booth showing a banner of the product which was made available by Union Carbide. 35. Sudouest had several catalogs of the Kemet products which were furnished by Union Carbide to be given to the customers. 36. Union Carbide's officials (particularly Messrs. Thomas Roper and Edward Thompson) periodically visited the Island and visited the different customers of Kemet products in Puerto Rico. The issue before this Court is whether Sudouest was a "dealer" within the ambit of the Act and whether it has a recourse under the Act for the termination of the Sales Representative Agreement executed between the parties herein. We hold that it was not a dealer and therefore it has no recourse under the Act. In the case of San Juan Mercantile Corp. v. Canadian Transport Company, Ltd., 108 D.P.R. 211-216 (1978), the Supreme Court of Puerto Rico defined the meaning of "dealer" under the Act as follows: The dealer figure is principally identified by his efforts to develop a favorable market and the obtention of a clientele for a product or service through promotion and execution of sales contracts. Its function generally involves the activities necessary for the transfer of products or services from the manufacturer to the customer, or to an intermediate point between them. Cf. J. Soler Motors Corp. v. Kaiser Jeep International Corp., supra. [108 D.P.R. 134 (1978)] The publicity, market coordination, deliveries of product, collections, keeping of an inventory and principally the promotion and execution of sales contracts are in general terms the obligations of the dealer..... It is precisely the creation of a market and the establishing of a clientele what constitutes the legal ground for compensating the dealer for the arbitrary termination of the contract.... (Translation provided) "Dealer" is defined in the Act as a "person actually interested in a dealer's contract because of his having effectively in his charge in Puerto Rico the distribution, agency, concession or representation of a given merchandise or service." (emphasis ours) A person or corporation, like in the case of Sudouest, who only fills in purchase orders, without determining the type of products 1551 to be purchased or their prices; who does not approve the orders, nor has the authority to do so; who does not close sales contracts, nor had the authority to do it; to whom the possible customers are already identified after the promotion of the product and the negotiation of the purchase terms have already been done, cannot be considered as a person having effectively in his charge the distribution and promotion of a merchandise. None of the activities in which Sudouest engaged itself as Union Carbide's sales representative were the functions attributable to a "dealer" protected by the Act. The functions which identify a "dealer" within the ambit of the Act are those of the creation of a market and the obtention of a clientele through the promotion and execution of sales contracts, and Sudouest did not execute sales contracts nor promoted them, nor created a market thereunder. Furthermore, the activities involved with these functions of dealer are those of delivery or products, collection efforts, keeping of an inventory, publicity, market coordination, and promotion and execution of sales contracts. See San Juan Mercantile, supra. Sudouest's engagement or involvement with these activities was very limited, not to say non-existent. We have dealt in other cases with similar sets of facts, and the conclusion has always been that the person has to be effectively in charge of the distribution of the merchandise in Puerto Rico to be entitled to the protection of the Act. See Cruz Ramos v. Brother International Corp., 445 F.Supp. 983 (1978), aff'd, 558 F.2d 817 (1st Cir., 1978); and the unreported decision of the Superior Court of Puerto Rico cases Frank Munarriz v. Capt. Sylvain Ledee, Inc., Civ. 67-5799 (September 14, 1977); Frank Colón, et al v. Ideal Security Hardware Corp., decided on September 29, 1981. Since plaintiff is not a "dealer" protected by the Act, and there being no genuine issue as to any material fact, being defendant entitled to judgment as a matter of law, the Request for Summary Judgment is GRANTED, and the case is hereby DISMISSED. IT IS SO ORDERED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518965/	214 A.2d 847 (1965) George McCLELLAND, Appellant-Employee, v. GENERAL MOTORS CORPORATION, Appellee-Employer. Supreme Court of Delaware. November 18, 1965. F. Alton Tybout, Wilmington, for appellant. Max S. Bell, Jr., of Richards, Layton & Finger, Wilmington, for appellee. CAREY and HERRMANN, JJ., and MARVEL, Vice-Chancellor, sitting. CAREY, Justice. The Superior Court reversed a determination of the Industrial Accident Board awarding workmen's compensation to the appellant. The record discloses that the evidence had been heard on three days, and while a quorum of the Board had been present on each day, only one member had in fact heard all the testimony. T. 19 Del.C. § 2103 provides that a majority of the Board shall constitute a quorum for the exercise of any of its powers or authority. There is no provision in the Act for hearings by a single member or by masters or referees. The Superior Court held that the same Board members who ultimately decide an issue must have been present when testimony was presented on that issue, unless the parties have waived that requirement. No such waiver appearing, it accordingly ordered the case remanded for rehearing. Appellant in this Court does not complain of the foregoing ruling. The only matter that he does question is a provision in the lower Court's order which apparently requires the Board to rehear all the testimony. His contention is that there is no occasion for those members who render a new decision to rehear evidence which they have personally previously heard, and that they should be permitted in their discretion 848 to limit the rehearing to so much of the evidence as they did not previously hear. He suggests that such action is permissible under T. 19 Del.C. § 2348(d).[] To be reviewed by this Court, a judgment or order entered below must be final or, if interlocutory, it must adjudicate substantial rights. Wagner v. Shanks, Del., 194 A.2d 701; American Ins. Co. v. Synvar Corp., Del., 199 A.2d 755. Accordingly, this Court, sua sponte, raised the question of whether the present problem is an appealable matter and requested briefs on the point. In replying to that request, appellant argues that the Superior Court order is a final judgment; but that, if it be merely interlocutory, it nevertheless determines a substantial right. Appellee disagrees with both arguments. This opinion is confined to the question of appealability. A few states take the position that any decision which sets aside an award of compensation and remands it for further proceedings of any kind is a final judgment. Inland Steel Co. v. Newsome, 281 Ky. 681, 136 S.W.2d 1077; Butler v. Fidelity & Casualty Co., 88 Ga.App. 620, 76 S.E.2d 813. Many more jurisdictions, however, have adopted a different view. They hold that the order of remand may be either final or interlocutory, depending upon the nature of the functions directed to be performed by the Board on the remand. If those functions are purely ministerial, for example, where the Board is directed to enter a specific different award, the judgment is final; but, if those further functions are not merely ministerial but are quasi-judicial, such as taking additional testimony and making new findings, the judgment is not final. Grogan v. Wm. J. Scully, Inc., 42 N.J. Super. 174, 126 A.2d 41; Bogan v. Smoothway Constr. Co., 183 Pa.Super. 170, 130 A.2d 207; Industrial Commission v. Dorchak, 97 Colo. 142, 47 P.2d 396; Hagmeier v. Dryden Rubber Division, etc., 245 Iowa 1121, 66 N.W.2d 111; Falk v. Midland Dairy Co., Inc., 266 N.Y. 559, 195 N.E. 199; ACF Industries, Inc. v. Industrial Commission, 8 Ill. 2d 552, 134 N.E.2d 764; Batchon's Case, 333 Mass. 605, 132 N.E.2d 400; 101 C.J.S. Workmen's Compensation § 795, p. 49. We think the majority rule is the correct one and we accept it as the law of Delaware. Under this view, the order before us is not a final one. The order being interlocutory, does it adjudicate any substantial right? We must remember that appellant does not question the remand of the case; his appeal is aimed only at the direction to rehear all the testimony. We are unable to understand how this can properly be denoted a determination of a substantial right; it is, in our opinion, purely procedural in nature. Appellant suggests nothing to show that he will suffer any actual harm or disadvantage by the requirement, even if it be improper. He does point out the possibility that a witness who previously testified may not be again available, but we think the existence of such possibility is not a deprivation of any substantial right; should the possibility become an actuality, we think the Court below would have the power to modify its order under Superior Court Rule 60, Del.C. Ann. Because of the foregoing conclusions, the appeal must be dismissed. NOTES [*] "(d) Whenever a cause shall be remanded to the Board for a rehearing, all evidence theretofore taken before the Board in a previous hearing or hearings shall become part of the evidence in the hearing upon the remand."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1037442/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4983 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. BENJAMIN DEVON GOSS, Defendant – Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Richard M. Gergel, District Judge. (2:11-cr-00730-RMG-1) Submitted: May 22, 2013 Decided: August 12, 2013 Before SHEDD, DUNCAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Ann Briks Walsh, Assistant Federal Public Defender, Charleston, South Carolina, Kimberly H. Albro, Research and Writing Specialist, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. William N. Nettles, United States Attorney, Columbia, South Carolina, Nathan S. Williams, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A federal court convicted Benjamin Devon Goss of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(g)(2) and 924(e). On appeal, Goss contends that the district court erred in denying his motion to suppress the firearm. Goss also asserts that the district court abused its discretion when it failed to grant a mistrial after alleged improper bolstering by a government witness. For the reasons that follow, we affirm. I. A. On October 4, 2010, Charleston, South Carolina, Police Department (“CPD”) officers were dispatched to a disturbance in downtown Charleston. Dispatch relayed the 911 call, which stated that there was a disturbance involving a gun between several black males wearing black and red clothing. Arriving first at the scene, CPD Officer Carlos Torres observed a group of people, which included Goss, crossing the street directly in front of his police cruiser. Goss looked at Torres and attempted to fix his waistband, revealing what appeared to be the grip of a black handgun. Torres got out of his patrol cruiser and told Goss to “stop” and “get on the ground.” J.A. 231. CPD Officer Robert 2 Wilbanks arrived on the scene just as Torres exited his patrol car. Goss began to walk away and Torres told him: “stop, you are under arrest.” Id. When Wilbanks got out of his car, he heard Torres yell “gun, gun, gun” and saw Goss begin to flee. J.A. 343. As Torres gave chase, he radioed that he was in pursuit of an armed black male wearing a red shirt, and other officers soon joined. While in pursuit, Torres saw Goss drop a black pistol between two bushes. Torres and Wilbanks eventually caught and detained Goss, at which point Torres told Officer Robert Hazelton where he had seen Goss toss the firearm. Hazelton went to the area described and found a .380 caliber handgun at the base of a bush. The officers placed Goss under arrest. 1 B. The government filed a one-count indictment charging Goss with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(g)(2) and 924(e). Prior to trial, Goss moved to suppress the weapon, arguing that the relayed 911 call did not provide Torres with reasonable suspicion sufficient to justify the initial attempted stop. 1 Goss was charged with Unlawful Possession of Handgun by Felon, Resisting Arrest, Unlawful Carrying of Handgun, and Possession of Marijuana. 3 After conducting a suppression hearing, the district court denied the motion. The court did not make any explicit findings of fact. At trial, the government presented the testimony of Torres and other officers at the scene. The government also offered the testimony of Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) Agent Robert Callahan, who briefly detailed his role as a federal agent and his level of involvement with state law enforcement in this case. Goss moved to strike Callahan’s testimony and for a mistrial, arguing that the testimony served no purpose but to improperly bolster the testimony of Officer Torres, who, Goss submits, presented conflicting testimony at the suppression hearing and at trial regarding his description of the person with the firearm. 2 The district court granted the motion to strike, and instructed the jury to disregard the testimony in its entirety. However, the district court denied Goss’s request 2 At the suppression hearing, Torres did in fact give conflicting testimony as to what color shirt Goss was wearing when Torres saw him with the gun on the evening in question. See J.A. 77-80. But Torres also testified that the individual he arrested that evening--Goss--was the same individual he saw pass in front of his patrol car with the gun in his waistband. Torres further testified that he never lost sight of Goss while chasing him. 4 for a mistrial, concluding that the testimony did not prejudice Goss. A jury convicted Goss on the one-count indictment. The district court sentenced Goss to one-hundred twenty months’ imprisonment. Goss filed a timely appeal. II. A. We first consider Goss’s challenge to the district court’s denial of the motion to suppress, reviewing the district court court’s legal conclusions de novo and its findings of fact for clear error. Ornelas v. United States, 517 U.S. 690, 699 (1996). In this case, however, the district court made no findings of fact. “It is, of course, the better practice for the district court to make such findings, but where the district court fails to do so, we assume the district court construed the evidence in the light most favorable to the party who prevails on the suppression motion below. . . . On review, we do the same.” United States v. Cardwell, 433 F.3d 378, 388 (4th Cir. 2005). Moreover, “[t]his court has recognized that when later proceedings confirm the correctness of the district court’s findings, we can affirm a pre-trial suppression ruling based on such evidence.” United States v. Gray, 491 F.3d 138, 148 (4th 5 Cir. 2007). See also United States v. Han, 74 F.3d 537, 539 (4th Cir. 1996). Goss contends that Officer Torres’s initial command for him to “stop” was unlawful because the officer had no articulable reason to suspect that Goss was involved in criminal activity. Goss argues that at the time Torres attempted to stop him, the officer knew only that an anonymous 911 caller had reported a disturbance involving several black men wearing black and red clothing, possibly involving weapons. This uncorroborated 911 call, Goss submits, was insufficient to allow Torres to stop him. Goss also argues that Torres could not stop him even after seeing what the officer believed to be the grip of a black handgun in Goss’s waistband because Torres could not have known whether Goss was prohibited from possessing a concealed firearm under South Carolina Code § 16-23-30. 3 While acknowledging that Officer Torres needed only reasonable suspicion to justify an investigatory stop, the district court nevertheless ruled that the government had satisfied the more stringent probable cause standard. We agree 3 South Carolina Code § 16-23-30 prohibits the possession of a handgun by certain enumerated classes of persons, including, inter alia, those who have been convicted of a crime of violence, members of a subversive organizations, and minors. 6 with the district court’s legal analysis and therefore reject Goss’s Fourth Amendment claim. The underlying command of the Fourth Amendment is that all government searches and seizures must be reasonable, Wilson v. Arkansas, 514 U.S. 927, 931 (1995), and “reasonable suspicion” is the standard that justifies an investigatory stop when an officer believes that criminal activity may be afoot, Terry v. Ohio, 392 U.S. 1, 21 (1968). Under that standard, a police officer may conduct a brief investigatory stop if he has “a reasonable suspicion grounded in specific and articulable facts that the person he stopped has been or is about to be involved in a crime.” United States v. Moore, 817 F.2d 1105, 1107 (4th Cir. 1987) (quoting United States v. Hensley, 469 U.S. 221, 227 (1985)). So long as such “reasonable suspicion of illegal activity” exists, an investigatory stop does not require a finding of probable cause. United States v. Harris, 39 F.3d 1262, 1269 (4th Cir. 1994). Relatedly, the existence of probable cause constitutes “the minimum justification necessary to make the kind of intrusion involved in an arrest ‘reasonable’ under the Fourth Amendment.” Dunaway v. New York, 442 U.S. 200, 208 (1979). Probable cause exists when the facts and circumstances known to the officer “would warrant the belief of a prudent person that the arrestee had committed or was committing an offense.” United States v. 7 Garcia, 848 F.2d 58, 59-60 (4th Cir. 1988) (internal quotations omitted). In assessing the existence of probable cause, courts examine the totality of the circumstances known to the officer at the time of the arrest. United States v. Al-Talib, 55 F.3d 923, 931 (4th Cir. 1995) (quoting Illinois v. Gates, 462 U.S. 213, 230-231 (1983)). Probable cause must be supported by more than a mere suspicion, but evidence sufficient to convict is not required. Wong Sun v. United States, 371 U.S. 471, 479 (1963). We first conclude that Torres had reasonable suspicion to stop Goss. While in his police cruiser, Torres saw Goss walk directly in front of him. Goss attempted to adjust something in his waistband, at which point Torres saw what appeared to be the grip of a black handgun. This, together with the fact that Goss fit the admittedly general description provided by the 911 dispatch, created objectively reasonable suspicion of illegal activity that justified an investigatory stop. 4 Goss’s reliance on Florida v. J.L., 529 U.S. 266 (2000), is misplaced. In J.L., the officers’ suspicion that J.L. was carrying a weapon arose solely from an anonymous call made from 4 In any case, as the district court observed, because Goss fled, Torres’s initial attempt to stop him did not constitute a “seizure” for purposes of the Fourth Amendment. See California v. Hodari D, 499 U.S. 621, 626 (1991) (“The word ‘seizure’ readily bears the meaning of a laying on of hands or application of physical force to restrain movement.”) 8 an unknown location. Id. The Supreme Court explained that “an anonymous tip that a person is carrying a gun [is not], without more, sufficient to justify a police officer’s stop and frisk of that person.” Id. at 268. Here, however, in contrast to the officers in J.L., Torres’s reasonable suspicion that Goss was armed was based not just on an anonymous tip, but also on the officer’s personal observations. 5 Next, we conclude that Torres had probable cause to arrest Goss. After disobeying several orders from Torres to stop and get on the ground, Goss fled. During the ensuing chase, Torres observed Goss toss a gun into the bushes. Shortly thereafter, Goss was captured and detained. Torres told other officers where Goss had tossed the gun, and that was the exact location where they found it. Based on these facts, Torres had ample probable cause to then arrest Goss. B. We next consider Goss’s contention that the district court erred by refusing to declare a mistrial on the ground that ATF agent Robert Callahan’s testimony prejudiced Goss’s right to a 5 It does not matter whether Torres actually knew that Goss had committed a crime. To justify the stop, Torres needed only a reasonable suspicion that criminal activity was afoot, not proof beyond a reasonable doubt. As the government notes in its brief, under South Carolina law it is unlawful (with certain enumerated exceptions) “for anyone to carry about the person any handgun, whether concealed or not.” S.C. Code Ann. § 16-23-20. 9 fair trial. It is well settled that a “[g]rant or denial of a motion for . . . mistrial is within the trial court’s discretion and will not be overturned absent a clear abuse of that discretion.” United States v. West, 877 F.2d 281, 287-88 (4th Cir. 1989). In order for the trial court’s ruling to constitute an abuse of discretion, the defendant must show prejudice. Id. at 288. No prejudice exists, however, “if the jury could make individual guilt determinations by following the court’s cautionary instructions.” Id. “Absent . . . misconduct on the part of the Government counsel, the courts generally have discerned no reversible error where the trial court has acted promptly in sustaining an objection and advising the jury to disregard the testimony.” United States v. Johnson, 610 F.2d 194, 197 (4th Cir. 1979). According to Goss, Agent Callahan’s testimony prejudiced him because it improperly bolstered the trial testimony of Torres, who, Goss argues, gave conflicting testimony at the suppression hearing and at trial regarding his description of the person with the firearm. Although he acknowledges the district court’s curative instruction, Goss insists that the instruction was insufficient to correct the prejudicial effect of Callahan’s testimony. In response, the government denies that Callahan’s testimony constituted improper bolstering, and 10 contends that even if it did, it did not prevent Goss from receiving a fair trial. “[B]olstering is an implication by the government that the testimony of a witness is corroborated by evidence known to the government but not known to the jury.” United States v. Sanchez, 118 F.3d 192, 198 (4th Cir. 1997). We fail to see how the testimony of a witness actually presented to the jury amounts to improper bolstering, at least as we have defined the term. We think it more accurate to say that Agent Callahan’s testimony was irrelevant. In any event, we find that the district court rightly denied Goss’s motion for a mistrial. Agent Callahan’s testimony, which focused only on his role as a criminal investigator, was isolated, exceptionally brief, and did not comment directly on the evidence or Torres’s testimony. Moreover, the independent evidence of Goss’s guilt was overwhelming. Lastly, and perhaps most importantly, the court struck the testimony on Goss’s motion and gave the jury a curative instruction, admonishing them not to consider the testimony for any purpose. We find no abuse of discretion in the district court’s ruling. 11 III. For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED 12	01-03-2023	08-12-2013
https://www.courtlistener.com/api/rest/v3/opinions/1518964/	953 S.W.2d 515 (1997) Paul and Mary KESSLER, Appellants, v. John and Alison FANNING, Appellees. No. 2-96-313-CV. Court of Appeals of Texas, Fort Worth. September 18, 1997. 517 David R. Casey, Hurst, for Appellants. Richard A. Valdes, Dallas, for Appellees. Before CAYCE, C.J., and DAUPHINOT and BRIGHAM, JJ. OPINION BRIGHAM, Justice. Appellees John and Alison Fanning sued Appellants Paul and Mary Kessler for alleged misrepresentations regarding the condition of a house that the Kesslers sold to the Fannings. A jury found that the Kesslers violated provisions of the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA) by engaging in a "false, misleading, or deceptive act or practice that was a producing cause of damages" to the Fannings. See TEX. BUS. & COM.CODE ANN. §§ 17.41-.63 (Vernon 1987 & Supp.1997). The trial court accordingly entered judgment for the Fannings. On appeal, the Kesslers assert in eight points that the alleged misrepresentation was an expression of opinion rather than a statement of fact, that any producing causal connection had been broken, that the evidence is factually insufficient, and that the trial court erred by overruling their objections to Special Question No. 1 in the jury charge and objections to the introduction of photographs and a videotape. We affirm. I. BACKGROUND The Fannings moved to Texas from Illinois and entered negotiations with the Kesslers to purchase a home in Bedford, Texas. After visiting the house on several occasions and having the house inspected by a professional inspector, the Fannings purchased the home from the Kesslers. It rained during the inspection, but Mr. Fanning was not made aware of, nor did he observe, any drainage problems on the property before moving in. He testified that the inspection did not include the yard or its drainage because that was not a concern at that time. Mr. Fanning said that he saw standing water on the property almost immediately after moving in. Mrs. Fanning noticed water "ponding" or collecting on a side of the yard as soon as it rained after they moved into the home. She called Mr. Kessler about the problem, and he acknowledged that he was aware of it. Mr. Fanning testified that Mr. Kessler insisted it was not a problem in a later telephone conversation. 518 The Fannings sued the Kesslers, claiming that the Kesslers made misrepresentations and omissions about the drainage and condition of their home to induce the Fannings to buy it. The Fannings further claimed that they would not have bought the house, or would have had a more specialized inspection of the property, if the drainage problems had been disclosed to them prior to the purchase. They initially alleged breach of warranty, breach of contract, and DTPA violations against the Kesslers. The charge, however, contained only one issue for submission to the jury, that of violations of the DTPA. II. THE MISREPRESENTATION The Fannings specifically alleged that the Kesslers misrepresented the condition of the property's water drainage and previous structural repairs through statements and omissions during the sale. In a "Property Condition Disclosure Statement," the Kesslers checked "no" in answer to two questions regarding whether they were aware of any improper drainage or previous structure repair on the property. The Fannings also complained of the Kesslers' alleged failure to disclose information when asked by the Fannings' real estate agent if Mr. Kessler had anything to tell the Fannings about the house or the property. A plaintiff may bring a DTPA action on these grounds if: 1) the plaintiff is a consumer, 2) the defendant engaged in false, misleading, or deceptive acts, and 3) these acts constituted a producing cause of the consumer's damages. See TEX. BUS. & COM. CODE ANN. § 17.50(a)(1) (Vernon Supp. 1997);[1]Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex.1995); Wheaton Van Lines, Inc. v. Mason, 925 S.W.2d 722, 727 (Tex.App.Fort Worth 1996, writ denied). To prevail on a DTPA claim, a consumer must establish that each defendant violated a specific provision of the Act and that such violation was a producing cause of injury. See Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex.1996). Provisions in section 17.46(b) of the DTPA set forth conduct constituting a "false, misleading, or deceptive act or practice" and subsections (b)(5), (7), (13), and (23) were specifically included in the jury charge in this case. A. Producing Cause The Kesslers claim, in their fourth point, that the trial court erred in entering the judgment because the producing causal connection had been broken. They assert that the evidence fails to show that any statement or failure to disclose by them was a producing cause of the Fannings' damages. Specifically, they contend the Fannings broke any producing causal connection when they obtained their own professional inspection of the property and relied on the resulting report in their purchase of the home. The Fannings reply that there may be more than one producing cause, and that the opportunity to inspect the property does not constitute an affirmative defense to fraudulent representations. In order to recover under the DTPA, it is necessary to prove that any deceptive act or practice was a producing cause of damages. See Weitzel v. Barnes, 691 S.W.2d 598, 600 (Tex.1985); Camden Mach. & Tool, Inc. v. Cascade Co., 870 S.W.2d 304, 311 (Tex.App.Fort Worth 1993, no writ). A showing that a defendant's deceptive act or omission was a producing cause of a plaintiff's damages requires proof of (1) actual causation in fact, (2) that but for the defendant's conduct the plaintiff's injury would not have occurred, and (3) that the act or omission was such a substantial factor in bringing about injury that liability should be imposed. See Prudential Ins. v. Jefferson Assocs., 896 S.W.2d 156, 161 (Tex.1995). For DTPA claims, a plaintiff need only show producing cause and not that the harm was foreseeable. See Doe, 907 S.W.2d at 481. A producing cause has been defined as "an efficient, exciting, or contributing cause, which in a natural sequence, produced injuries or damages complained of, if any." Rourke v. Garza, 530 S.W.2d 794, 801 (Tex. 1975); see also Haynes & Boone v. Bowser 519 Bouldin, Ltd., 896 S.W.2d 179, 182 (Tex. 1995). There must be an "unbroken causal connection" between the act or omission and the injury. Doe, 907 S.W.2d at 481. The Fannings hired Complete Home Inspection Service to inspect the property and report on its condition at the time of the transaction. The inspection of the house, however, did not include the surrounding yard and its drainage. Mr. Fanning testified that if they had known of the problem with the yard not draining, they would not have purchased the property or at least would have hired an engineer or expert to inspect the problem. Mrs. Fanning also testified that they would not have purchased the house if they had known of the problem. This is sufficient to show that but for the misrepresentation or failure to disclose information of the drainage problem, the Fannings would not have purchased the property and that the failure to disclose was a substantial factor in the Fannings' decision to buy the house, which led to their injury. The Kesslers assert that the Fannings' reliance on the inspection was an intervening factor that broke the causal connection. The Fannings, however, relied on several factors, including the Kesslers' honesty in presenting the house and its property. Additionally, the jury was charged on the law in Texas that there may be more than one producing cause. See Haynes & Boone, 896 S.W.2d at 182; Rourke, 530 S.W.2d at 801. The evidence establishes that the Kesslers' misrepresentation or failure to disclose was a producing cause, if not the sole producing cause. The possibility of an independent investigation that might have uncovered fraud does not preclude recovery of damages for fraudulent representations, see Koral Industries v. Security-Connecticut Life Ins., 802 S.W.2d 650, 651 (Tex.1990), and the Fannings' inspection was not a defense to this misrepresentation claim. We overrule the Kesslers' fourth point. B. Fact or Opinion The Kesslers counter the misrepresentation allegations by claiming in their first three points that any representation was an expression of opinion and not a statement of fact. They contend that the trial court thus erred when it entered the judgment and denied their motion for judgment non obstante veredicto, their alternative motion to disregard jury findings, and their motion for new trial. The property disclosure form provided by the Kesslers stated that it was "not a substitute for any inspections or warranties" and that it contained "representations made by the owner(s) based on owner's knowledge." The Kesslers claim this shows that the representations were of opinion rather than fact because they were based on the owner's (the Kesslers') knowledge rather than any inspection or other source. The Fannings assert that the Kesslers fail to apply the standards for determining the difference between expression of opinion, or mere "puffing," and actionable misrepresentations. They also assert that the jury's finding of a DTPA violation rests on the failure to disclose information as well as affirmative misrepresentations and that the Kesslers' acts or omissions amounted to actionable misrepresentation. The DTPA does not specifically mention opinion or "puffing" as a defense. See Humble Nat'l Bank v. DCV, Inc., 933 S.W.2d 224, 229 (Tex.App.Houston [14th Dist.] 1996, writ denied). The Texas Supreme Court, however, has stated that misrepresentations are actionable under the DTPA "so long as they are of a material fact and not merely `puffing' or opinion." Pennington v. Singleton, 606 S.W.2d 682, 687 (Tex.1980). Although a "puffing" or "opinion" defense often pertains to warranty cases, courts have looked to Pennington and allowed an "opinion" defense in misrepresentation claims brought under section 17.46(b)(5) and (7) of the DTPA. See Humble Nat'l Bank, 933 S.W.2d at 229-30; Hedley Feedlot, Inc. v. Weatherly Trust, 855 S.W.2d 826, 838-39 (Tex.App.Amarillo 1993, writ denied) (op. on reh'g); Parks v. U.S. Home Corp., 652 S.W.2d 479, 484 (Tex.App.Houston [1st Dist.] 1983, writ dism'd w.o.j.). An actionable misrepresentation may be broad or general and need not regard specific information. See Pennington, 606 520 S.W.2d at 687. Courts have generally considered three factors in determining whether a statement is opinion or actionable misrepresentation: 1) the specificity versus vagueness of the statement, 2) the comparative knowledge of the buyer and the seller, and 3) whether the representation pertains to a past or current event or condition versus a future event or condition. See Humble Nat'l Bank, 933 S.W.2d at 230; Hedley Feedlot, 855 S.W.2d at 839. We do not find that the terms "improper drainage" or "previous structural repair" are so vague, unsusceptible to comparably more knowledge on the part of the seller, and pertaining to a future event or condition as to be mere opinion or puffing. They clearly pertain to a past or current condition of the property at the time of the sale, and in this case the Kesslers owned and had lived in the house they were selling, which provided them with occasion to know more about drainage problems and past structural repairs than the Fannings. The record shows that standing water would not drain from the yard after periods of heavy rains, a condition that a one-time inspection may not reveal without notice of the problem. Furthermore, the term "improper drainage" has been considered a description of a condition and not merely an opinion, although no detailed definition was provided. See Wade v. Jackson County, 547 S.W.2d 371, 375-76 (Tex.Civ.App.Corpus Christi 1977, writ ref'd n.r.e.) (noting that water standing on a tract of land for four or five days after a heavy rain causes damage to the land). We overrule points one, two, and three. C. Sufficiency of Evidence In their fifth point, the Kesslers assert that the trial court erred in denying their motion for new trial because the evidence is factually insufficient to support the jury's finding that the Kesslers engaged in a false, misleading, or deceptive act or practice that was a producing cause of damages to the Fannings. In their sixth point, they further protest the trial court's overruling of their objection to Special Question No. 1 in the jury charge, based on factual insufficiency of the evidence. Special Question No. 1 contained the following: Do you find from a preponderance of the evidence that Paul and Mary Kessler, or either of them, engaged in any false, misleading, or deceptive act or practice that was a producing cause of damages to John and Alison Fanning? "False, misleading, or deceptive act or practice" means any of the following: Representing that the property had or would have characteristics that it did not have; or Representing that the property was or would be of a particular quality if it is of another; or Knowingly making false or misleading statements of fact concerning the need for repair services; or Failing to disclose information about the property that was known at the time of the transaction with the intention to induce another into a transaction into which the consumer would not have entered had the information been disclosed. Answer "Yes" or "No". This jury submission consisted of relevant portions of section 17.46(b) of the DTPA, which presents a laundry list of deceptive trade practices that are unlawful under the statute. See TEX. BUS. & COM.CODE ANN. § 17.46(b)(5), (7), (13), (23) (Vernon Supp. 1997). The jury answered "Yes" to this question, and the Kesslers assert that the evidence is factually insufficient to support their answer and the resulting judgment because the Fannings failed to show that improper drainage existed at the time of the transaction or that the Kesslers knew of or misrepresented such improper drainage. The Fannings respond that the judgment rests both on misrepresentations and on the Kesslers' alleged failure to disclose material information. They counter that the verdict is therefore supported by sufficient evidence of a violation of the DTPA. The Kesslers' motion for new trial was based on a claim of insufficient evidence. A trial court has wide discretion in granting a new trial, and we will not disturb this 521 discretion on appeal absent a showing of manifest abuse of discretion. See Champion Int'l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex.1988) (orig.proceeding); Gilgon, Inc. v. Hart, 893 S.W.2d 562, 569 (Tex.App.Corpus Christi 1994, writ denied). To determine whether a trial court abused its discretion, we must decide "whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable." Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). Under an abuse of discretion standard, legal and factual insufficiency are relevant factors in assessing whether the trial court abused its discretion. See Beaumont Bank v. Buller, 806 S.W.2d 223, 226 (Tex.1991); D.R. v. J.A.R., 894 S.W.2d 91, 95 (Tex.App.Fort Worth 1995, writ denied) (op. on reh'g); In re Driver, 895 S.W.2d 875, 877 (Tex.App.Texarkana 1995, no writ); Mai v. Mai, 853 S.W.2d 615, 618 (Tex.App.Houston [1st Dist.] 1993, no writ). In reviewing an insufficiency of the evidence challenge, we are required to consider all of the evidence in the case. See Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 29 (Tex.1993). A fact finding should be set aside only if the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). As listed previously, the elements of a DTPA action are: 1) the plaintiff is a consumer, 2) the defendant engaged in false, misleading, or deceptive acts, and 3) these acts constituted a producing cause of the consumer's damages. See TEX. BUS. & COM. CODE ANN. § 17.50(a)(1). We have previously determined that the evidence shows the Kesslers' acts or omissions constituted a producing cause. The provisions in section 17.46(b) of the DTPA set forth conduct constituting a "false, misleading, or deceptive act or practice," and subsections (b)(5), (7), (13), and (23) were specifically included in the jury charge in this case. The Fannings, who were consumers in a transaction to buy a home, were also required to prove that the Kesslers violated at least one of the relevant subsections in section 17.46(b) through affirmative misrepresentations or failure to disclose information. Under the DTPA, a seller is liable for affirmative misrepresentations, despite a lack of notice or falsity, because the law imposes a duty on the seller to know whether an affirmative statement is true. See Camden Mach. & Tool, 870 S.W.2d at 311; Henry S. Miller Co. v. Bynum, 797 S.W.2d 51, 55 (Tex.App.Houston [1st Dist.] 1990), aff'd, 836 S.W.2d 160 (Tex.1992). No such duty arises when the seller fails to reveal information about which he does not know, rather than making representations. See Robinson v. Preston Chrysler-Plymouth, Inc., 633 S.W.2d 500, 502 (Tex.1982); Smith v. Herco, Inc., 900 S.W.2d 852, 859 (Tex. App.Corpus Christi 1995, writ denied). To prove a DTPA action for failure to disclose, plaintiffs must show the following: 1. A failure to disclose information concerning goods or services; 2. Which was known at the time of the transaction; 3. Which was intended to induce them into a transaction; and 4. That they would not have entered into the transaction if the information had been disclosed. See TEX. BUS. & COM.CODE ANN. § 17.46(b)(23); O'Hern v. Hogard, 841 S.W.2d 135, 136 (Tex.App.Houston [14th Dist.] 1992, no writ). There is no duty of disclosure under the DTPA if a defendant fails to disclose material facts it merely should have known. Doe, 907 S.W.2d at 479. The Kesslers contend that they were not aware of any improper drainage or previous structural repair. However, the following testimony was presented at trial: John Fanning testified that almost immediately after they moved into the house they experienced problems with improper drainage. Alison Fanning testified that twice in her presence, the Fannings' real estate agent asked Paul Kessler if he had anything to tell them about the house and he said, "no." She also testified that Paul Kessler admitted to her that the house had a problem with improper drainage and he was aware of it. 522 Bert Barron of RamJack examined the property approximately sixteen months after the Fannings moved in and concluded that the improper drainage had existed for at least three years before his examination. Paul Littlejohn, a hostile witness to the Fannings, testified that he was the next-door neighbor to the property and that he had observed that the area in question would not drain when the other areas would. We have reviewed the evidence in this case and have determined that the trial court did not abuse its discretion in denying the motion for new trial and submitting Special Question No. 1 to the jury.[2] The record contains sufficient evidence that the Kesslers violated at least one of the relevant subsections of DTPA section 17.46(b) through either affirmative misrepresentations or failure to disclose information. We overrule their fifth and sixth points. III. ADMISSION OF PHOTOGRAPHS AND VIDEOTAPE In their seventh and eighth points, the Kesslers contend that the trial court erred by overruling their objections to the introduction of a videotape and photographs offered by the Fannings. "The admissibility of a photograph is conditioned upon its identification by a witness as an accurate portrayal of the facts, and on verification by that witness or a person with knowledge that the photograph is a correct representation of such facts." Davidson v. Great Nat'l Life Ins. Co., 737 S.W.2d 312, 314-15 (Tex.1987). A change in the scene or object photographed will not prevent an earlier photograph from being admissible "if the changes are explained such that the photograph will be helpful to the jury in understanding the nature of the conditions at the time of the controversy." Cheek v. Zalta, 693 S.W.2d 632, 635 (Tex. App.Houston [14th Dist.] 1985, no writ). The predicate for admissibility need not be laid by the photographer, the person photographed, or even a person who was present when the photograph was taken, but any witness who observed the object or scene depicted in the photograph may lay the predicate. See Davidson, 737 S.W.2d at 314-15; Briones v. Levine's Dept. Store, Inc., 435 S.W.2d 876, 880 (Tex.Civ.App.Austin 1968), aff'd, 446 S.W.2d 7 (Tex.1969). The admission of a videotape follows the same conditions. We review a trial court's admission of photographs and videos under an abuse of discretion standard. See Reichhold Chemicals, Inc. v. Puremco Mfg. Co., 854 S.W.2d 240, 248 (Tex.App.Waco 1993, writ denied). We determine "whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable." Worford, 801 S.W.2d at 109. The Kesslers objected to the videotape on the grounds that the sponsoring witness, John Fanning, did not record all of the videotape and that he could not distinguish between the portions he recorded and the portions his wife recorded. They also objected that the photos were taken after drainage repair work had been completed. As to the photographs, the Kesslers objected that they did not show the property as it appeared on the date of the sale. The objections made by the Kesslers went to the weight of the evidence and not the admissibility of the videotape and photographs. See Cheek, 693 S.W.2d at 635. The change in the property between the date of sale and the time the pictures were taken was information that was suitable for cross-examination and presented a fact-question for the jury. See id. Therefore, the trial court's decision to admit the photographs and videotape was not an abuse of discretion, and the Kesslers' seventh and eighth points are overruled. IV. CONCLUSION Having overruled each of the Kesslers' points, the judgment of the trial court is affirmed. NOTES [1] Section 17.50(a) was amended in 1995 by adding a requirement that a consumer prove he relied on the false, misleading, or deceptive practice to his detriment. TEX. BUS. & COM.CODE ANN. § 17.50 (Vernon Supp.1997). [2] Because we find that the evidence supports the jury's finding in relation to the drainage problems of the property, we do not need to address the evidence surrounding the alleged previous structural repairs.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519016/	4 Md. App. 312 (1968) 242 A.2d 819 RONALD BUTINA v. STATE OF MARYLAND. No. 309, September Term, 1967. Court of Special Appeals of Maryland. Decided June 7, 1968. The cause was argued before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ. Robert J. Flynn for appellant. Bernard L. Silbert, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State's Attorney for Prince George's County, and Benjamin R. Wolman, Assistant State's Attorney for Prince George's County, on the brief, for appellee. ORTH, J., delivered the opinion of the Court. The appellant was found guilty of statutory arson by a jury in the Circuit Court for Prince George's County and sentenced to imprisonment for a term of 10 years. I The appellant was convicted of the crime proscribed by Md. Code (1967 Repl. Vol.) Art. 27, § 6, which provides in relevant part: "Any person who wilfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any dwelling house * * * whether the property of himself, or of another, shall be guilty of arson, and upon conviction thereof, be sentenced to the penitentiary for not less than two nor more than twenty years." At common law the felony of arson is the malicious burning of the dwelling house of another. Clark and Marshall, Law of Crimes, 6th Ed., § 13.09, p. 893; Perkins, Criminal Law (1957), Ch. 3, § 2, p. 172. The statute enlarges the common 317 law meaning of arson as by its provisions a person commits arson if he wilfully and maliciously either (1) sets fire to or burns or causes to be burned a dwelling house (and other property that is parcel thereto designated by the statute), or, (2) aids, counsels or procures the burning. Thus, although at common law a person not actually or constructively present who "aids, counsels or procures the burning" is an accessory before the fact, under the statute he is a principal to the arson. This was the conclusion reached by the Court of Appeals in Wimpling v. State, 171 Md. 362. The Court said that although it is consistent with the language of the statute that one may be guilty of arson if he has counseled the burning even though there has been no actual burning, page 370, it may be assumed that in the use of the word "counsel" the legislature meant to "counsel" the burning or setting fire to a dwelling house which in fact has been burned or which has been set on fire. Thus while at common law one who aids, counsels or procures another to wilfully and maliciously set fire to a dwelling house is an accessory, by the statute he is made a principal, his act in so counselling, aiding, or procuring is in itself a substantive offense, page 371, and he is subject to the same punishment as though he himself had actually perpetrated the burning, page 369. Since under the statute two separate substantive offenses of arson are defined, it follows that to be validly convicted a person must be properly charged with the offense of arson which the evidence shows he committed. So if he, in fact, set fire to or burned or caused to be burned a dwelling house, he cannot be convicted on a charge that he aided, counseled or procured the burning, and vice versa. But in considering the offense which he in fact committed, consideration must be given to the distinction at common law between principals and accessories, for even though the statute makes a person a principal who at common law would be an accessory before the fact to arson,[1] we think that a person may be convicted of setting fire to or burning 318 or causing to be burned a dwelling house only if he would have been a principal at common law and that he may be convicted of aiding, counselling or procuring the burning only if he would have been an accessory before the fact at common law. Under the common law, parties to a felony are classified as principals or accessories. Principals in the first degree are those who commit the deed as perpetrating actors, either by their own hand or by the hand of an innocent agent. Persons present, actually or constructively, aiding and abetting the commission of the crime, but not themselves committing it, are principals in the second degree. Accessories before the fact are those persons who abet, procure, counsel, or command the deed perpetrated, but who are not present, actually or constructively, at such perpetration. Agresti v. State, 2 Md. App. 278, 280. But in this State there is no practical distinction between principals in the first and second degree. Vincent v. State, 220 Md. 232, 239, note 1. If the evidence shows that an accused was present, actually or constructively, aiding and abetting the setting of the fire or the burning or the causing to be burned, even though he did not commit the crime himself, thus being a principal in the second degree, he could properly be convicted on a charge that he wilfully and maliciously set fire to or burned or caused to be burned the property. See Thornton v. State, 232 Md. 542, 544; Veney v. State, 225 Md. 237, 238. We do not find it to be the law of this State, that an accused must be specifically charged as a principal in the second degree. 319 The indictment returned against the appellant charged under the statute that he " * * did feloniously, wilfully and maliciously set fire to and burn a certain dwelling house, the property of James Henry Thomas * * ." He was charged, therefore, with the first offense proscribed by the statute and the charge would be proper if the evidence showed that he was either a principal in the first or second degree at common law, that is to say if he himself perpetrated the crime or was present, actually or constructively, aiding or abetting its commission. The charge would not permit the conviction if the evidence showed that he was an accessory before the fact at common law (the second offense proscribed by the statute), that is to say if he aided, counseled or procured the burning without being actually or constructively present. The appellant alleges that by the evidence the acts he committed showed him to be an accessory before the fact at common law and he contends that, therefore, the indictment was "defective and should have been quashed." Even if the evidence adduced at trial so showed, the appellant was not entitled to have the indictment dismissed. The indictment charged him with acts coming fully within the statutory description, in the substantial words of the statute, sufficient to apprise him with reasonable certainty that he was accused of committing arson. Dortch and Garnett v. State, 1 Md. App. 173, 176; Wimpling v. State, supra, 368. It was sufficient on its face. The contention as framed and argued goes to the sufficiency of the evidence before the grand jury but we held in Wilson v. State, 4 Md. App. 192, that an indictment may not be challenged on the ground that there was insufficient evidence before the grand jury. The proper question here is whether there was a variance between the allegata and the probata. If so, the appellant would have been entitled to the grant of his motion for judgment of acquittal made at the conclusion of all the evidence, but not to a dismissal of the indictment. So we must review the evidence before the jury. About 1:00 A.M. on 10 July 1967 Norman M. Thomas was in bed in his frame dwelling house at 611 8th Street, Laurel, Md. when he heard the motor of a car racing. He got up and, looking out the window, saw "an old model black car maybe 320 a Dodge or Plymouth" on the road alongside the house.[2] He went back to bed. "Then I heard this fuming sound, like a whoosh, and when I looked out the back window, that is when the flames were all over the back of the house." He ran downstairs through the kitchen and saw the flames coming through the kitchen window. "I knew then the house was on fire." He ran out the front door and saw a "white man run across the road to the automobile." The car drove away, proceeding west toward uptown Laurel. "I hollered back in the house to my young daughter and told her to try to get the kids out of the house and there was fire and they were all asleep." He was able to put the fire out with the help of a neighbor. Merle Cole, the night manager of a gasoline station in Laurel, testified that in the early morning hours of 10 July an old Plymouth car came into the station. "They came in * * * said they were out of gas, asked if I had a can and I told them yes, and I went to my car and got a can * * * and filled it with gas (two gallons) and gave it to them." The can was put in the car; the gas was not poured into the car's gasoline tank. He identified a can found by the police near the scene of the arson as similar to the can put in the car. Richard Reedy was in the station when the car pulled in. He recognized the car as belonging to a Bill Neilson but when he went over to the car, he did not see Neilson. He saw two men in the car, and identified the appellant as the driver. They got two gallons of gas in a can and pulled out. Officer Gerald Hall of the Laurel Police Department responded to a call in the morning hours of 10 July and went to the Thomas house. Thomas showed him the damage to the house and gave a description of the car "as early model 1949 or 1950 * * * Dodge or Plymouth, black in color." The officer knew that Neilson owned a car answering that description. The officer went to a shopping center near the intersection of Fourth and Montrose Avenues where he had seen the car on other occasions. As he drove around the shopping center he saw a black 1952 Plymouth pull up at the intersection. He asked the appellant, who was driving, for his operator's license and the 321 registration card. The appellant showed him his operator's license and at first said he did not have the registration card, but then he found it in the glove compartment. The appellant was not arrested. Officer Wallace Mitchell of the Laurel Police Department also responded to the call and went to the Thomas house. He observed the damage and made a report. About 40 minutes after he left Thomas he responded to a call and went to the intersection of Fourth and Montrose Avenues. Hall, the appellant, and another man were standing by a 1952 Plymouth. The appellant showed the officer his operator's license and a registration card in the name of Janice Neilson. The appellant was permitted to leave. He had made no statement regarding the fire. Officer Juergen Ervin of the Laurel Police Department testified that the investigation of the fire was turned over to him by the Chief of Police on 14 July. He found that the husband of Janice Neilson had not been interviewed, went to his residence on 15 July and talked to him in the presence of Mrs. Neilson. He went back later that day and requested Neilson to accompany him to the police station. At the station Neilson made a statement and thereafter was charged with arson. Warrants charging arson were obtain for the arrest of the appellant and two other men. The appellant was located about 7:30 P.M. on 15 July near his home. Ervin read the warrant to him and the appellant read it himself. Thereupon Ervin "advised him he had a right to remain silent. Anything you say can be used against you in a court of law. You have a right to talk to a lawyer and to have him with you during questioning. If you cannot afford a lawyer one will be appointed for you before a statement is taken if you wish. If you decide to give a statement you still have the right to stop at any time so you may talk to a lawyer." Ervin asked him if he understood his rights and what had just been explained and he replied that he did. He was asked if he was willing to make a statement without the presence of a lawyer and replied, "Yes." He was asked, "Have any promises, threats or inducements been made to pressure or coerce you into making this statement" and he replied, "No." Ervin took the appellant to the police station. On the way Ervin said nothing to the appellant and the appellant said 322 nothing to Ervin. At the station a document was read to the appellant again stating the rights set forth in Miranda v. Arizona, 384 U.S. 436. It concluded: "Waiver of rights. I have read the statement of my rights and understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me. No pressure or coercion of any kind has been used against me." The appellant signed this document and then gave the police a statement which was reduced to writing and signed by him. At the trial, counsel for the appellant cross-examined Ervin as to the voluntariness of the statement but offered no evidence with regard thereto. The trial court found that the statement was given by the appellant "voluntarily, knowingly and intelligently" and admitted it in evidence.[3] The statement showed that the appellant was asked by the police to tell what happened on 10 July with reference to the burning of Thomas' dwelling. He said: "A. On early Monday morning about 1:00 A.M. 7-10-67, I met Paul White, Neilson, Don Kemper, and Pressley,[4] who were in a 1952 Black Plymouth, owned by Neilson, at the Laurel Swimming Pool, at the end of Main St. At that time Neilson asked me to go to a party, at which time I mounted Neilson's vehicle, and took control of same, as Neilson asked me to Drive his vehicle. We left the Pool, as we arrived at Main and 9th St, Paul White said, make a right here at 9th St, and go down to the Grove area, When we arrived at the Laurel Grove Ave 8th St and Rt 198 323 (Talbott Ave.) White said pull over, we are going to Set the House on Fire, meaning 611 8th St, Laurel Md. I told him no, dont set the House on Fire, because I knew Mr. Thomas. Paul then said pull over I and Kemper, we have to go to the Bath room I stopped the vehicle on Rt 198 (Talbott) and 8th St, Laurel Md. When I had stopped, Paul White and Don Kemper left the vehicle, and Pressley was standing out side of the vehicle, Several minutes later I observed a big flash on the house of 611 Eight St., same started to burn, and I then observed Paul White and Don Kemper come running across the street from the Burning House towards the vehicle. After Paul White and Don Kemper jumped into the car, Paul White said lets get out of here. We drove down Rt 198 towards Harding Pontiac, down Sandy Spring Rd. and stopped by the Laurel Police Station. We left Montgomery St, and then later drove past 611 8th St, which is the House Don Kemper and Paul White set on Fire. After we drove past the Fire we went to 1008 8th St, Laurel Md, the Residence of Mr. Patterson. I wanted to stop at the Fire, however the other guys in the vehicle, Paul White, Don Kemper, Pressley and Neilson said not to stop, they told me to continue on. After we arrived at 1008 8th St, Pressley and myself left in Neilsons Car to get some more Beer, and to see if some other guys would come to the party, As I drove by 4th St and Montrose Ave, Laurel Md, I was stopped by a Laurel Police Officer, after the Officer had talked to me and Pressley they then let us go. I then walked home, and Pressley walked home. I left Neilson vehicle the 1952 Plymouth parked on Rt 198 (Talbott Ave). Q. When you left the Fire at 611 8th St, Laurel did Paul White or Don Kemper say, who set the Fire? A. Don Kemper said he poured the Gasoline all over 324 the House (611 8th St) and got it real good, Paul White then said good. I remember Kemper saying that he had gasoline on His boots', and he tried to wash it off When we were at 1008 8th St, Laurel Md. Q. Do you know what happened to the gas can? A. No. I don't, I didn't even know they had the gas when they pickt me up earlier." No evidence was proffered in behalf of the appellant. It is firmly established that the test in reviewing the sufficiency of the evidence in a jury case is whether any relevant evidence was given to the jury which could have sustained the conviction. Tillery v. State, 3 Md. App. 142. Applying this test, we have no difficulty in determining that the evidence was ample for the jury to find that the appellant was guilty of arson. There is no question as to the proof of the corpus delicti. See Gamble v. State, 2 Md. App. 271. The fire did occur and it is a clear inference from evidence independent of the confession that it was wilfully and maliciously set. See Whitmer v. State, 1 Md. App. 127; Howard v. State, 1 Md. App. 379. We think it clear also that the evidence was sufficient to establish the criminal agency of the appellant. He was driving the car when a two gallon can of gasoline was purchased immediately before the crime and placed in the car.[5] By his own statement he drove the actual perpetrators to the scene of the crime, was actually present in "close proximity or contiguity" in a position to assist if necessary or to watch or prevent interference or detection or to encourage the commission of the crime at the moment of its commission and drove the car in which the actual perpetrators departed from the scene of the crime. The evidence was sufficient for the jury to find that he was a principal in the second degree and to find him guilty of the offense the actual perpetrators committed. Thomas v. State, 2 Md. App. 502; McEntire 325 v. State, 2 Md. App. 449, 453. Therefore, since he was, by the evidence, a principal and not an accessory before the fact, the allegation in the indictment was proper and there was no variance between the charge and the proof. We find that the motion for judgment of acquittal was properly denied and that the evidence was sufficient to sustain the conviction. II The appellant complains that his statement was improperly admitted in evidence. He does not allege on appeal that his statement was obtained without compliance with the Miranda safeguards or that it was the result of promises, inducements, threats or physical violence. He urges, however, that the attention of the police was focused on him and Neilson as the result of an illegal arrest of him. He alleges that when the police stopped the car he was driving and asked for his operator's license and the registration card, he was illegally arrested.[6] The police obtained his name thereby and the registration card disclosed that the car belonged to Janice Neilson. This led the police to her husband, William Neilson, who gave a statement to the police, and it was the confrontation of him with Neilson's statement that caused him to give a statement. He concludes therefrom both that the indictment was found on the basis of evidence illegally obtained and that his statement was inadmissible as "fruits of the poisonous tree." With regard to the indictment, it is the well settled rule that the competency of testimony before the grand jury will not be inquired into by the courts and is no ground to dismiss the indictment. Costello v. United States, 350 U.S. 359, 363; Pick v. State, 143 Md. 192, 196; Wilson v. State, supra. With regard to the statement given by the appellant, it is not necessary for us to determine whether the initial encounter of the appellant and the police was an accosting or an arrest or, if it were an arrest, whether there was probable cause therefor. The question of the legality of the arrest is immaterial as no 326 "fruits" seized thereby were received into evidence. Crosby v. State, 2 Md. App. 578, Hutchinson v. State, 1 Md. App. 362. The "fruits" of an illegal arrest refer to tangible evidence seized. Walker v. State, 237 Md. 516. A statement or confession is not a "fruit" of the arrest in this context. Howard v. State, 1 Md. App. 379; Stackhouse v. State, 1 Md. App. 399. Wong Sun v. United States, 371 U.S. 471, stating the federal exclusionary rule that any evidence obtained as a result of an illegal arrest is tainted as the fruit of a poisonous tree, does not control prosecutions in the State courts. Dailey v. State, 239 Md. 596; Prescoe v. State, 231 Md. 486; State v. Hill, 2 Md. App. 594. In any event, although the registration card of the car driven by the appellant and displayed to the officer showed that the car was registered in the name of Janice Neilson, Officer Hall was aware prior to that time that Neilson had a car answering the description of the one seen by Thomas at the time of the fire and had gone to look for it. Also the name of the registered owner could have been readily traced by the police from the license tags. There is no merit in the contention that the appellant's statement was rendered inadmissible because he was identified by the police at the time of his initial encounter with them or because the registration card linked Neilson to the appellant. Nor do we find merit in the allegation that the appellant's statement "was coerced and illegally obtained otherwise through the medium of Neilson's statement, which was obtained contrary to the requirements of Miranda." Before he made his statement the appellant was confronted with Neilson's statement. As to what effect confrontation with illegally seized evidence has on the admissibility of a confession is one of fact and not a matter of law. The Court of Appeals said in McChan v. State, 238 Md. 149, 159, cert. den. 384 U.S. 1021 (vacated as to one defendant on another point, 384 U.S. 893): "In Fahy v. Connecticut, 375 U.S. 85 (1963), where illegally obtained evidence was held to be prejudicial, the Supreme Court found that the accused should have had an opportunity to show that his admissions were induced by being confronted with illegally obtained evidence. Fahy, does not, however, compel the exclusion of a confession unless it appears that the accused was 327 shown illegally seized evidence and that such confrontation did in fact induce the confession. Voluntariness, therefore, is still the crucial test for determining the admissibility of a confession." See Dailey v. State, supra, 600. Even on the assumption that Neilson's statement was illegally obtained,[7] there was no sufficient showing here that the confrontation did in fact induce the appellant's statement,[8] or that it was, in fact, not voluntarily made. We do not think that the trial court's finding on the evidence as to the factual question of the effect of the confrontation of the appellant with Neilson's statement was clearly erroneous. Md. Rule, 1086. III The appellant complains that he was denied the assistance of counsel. As we understand his first contention in this regard, he urges, on the premise that the stopping of the car driven by the appellant was an arrest, that he was then entitled to counsel. Accepting the premise, arguendo, that the appellant was then arrested, we know of no authority holding that the constitutional rights of a person are violated by the absence of counsel at his arrest. Cherrix v. Warden, 1 Md. App. 65. The appellant made no statement at that time offered in evidence against him and Miranda v. Arizona, supra, cited by the appellant, is not applicable. Crosby v. State, 2 Md. App. 578; Dixon v. State, 1 Md. App. 623. Nor is Escobedo v. Illinois, 378 U.S. 478, applicable. Reeves v. State, 3 Md. App. 195. 328 His second contention with respect to the assistance of counsel is that there was a failure "to timely appoint counsel at the preliminary hearing." The contention is based upon the allegation that the preliminary hearing "inherently" was a critical stage of the proceedings against him. The contention was fully answered in Hannah v. State, 3 Md. App. 325 and in prior opinions of this Court. See Timbers v. State, 2 Md. App. 672; Crosby v. State, supra; Crumb v. State, 1 Md. App. 98. It appears that the appellant did not enter a plea at the preliminary hearing nor was anything that transpired there entered in evidence against him at his trial. Neither Pointer v. Texas, 380 U.S. 400, relied on by the appellant, nor White v. Maryland, 373 U.S. 59 is apposite. The contentions as to the assistance of counsel are without merit. Judgment affirmed. NOTES [1] The arson statute is thus distinguished from the statutes pertaining to robbery and robbery with a deadly weapon, Md. Code (1967 Repl. Vol.) Art. 27, §§ 486 and 488. Sections 486 and 488 do not define the crime of robbery but merely provide a statutory penalty for common law robbery and accessory before the fact to that crime and a statutory penalty more severe when the robbery or attempted robbery or accessory to robbery is committed with a dangerous or deadly weapon. Darby v. State, 3 Md. App. 407, 413. An accessory before the fact to robbery is not made a principal thereby nor is a person who attempts to rob with a deadly weapon or who is an accessory thereto. Agresti v. State, 2 Md. App. 278, 282. In Agresti, at 281-282, we said that at common law, an indictment must charge a person correctly as principal or accessory according to the facts and on an indictment charging a person as a principal there could be no conviction on evidence showing that he was merely an accessory and vice versa. And we noted that even if a statute makes an accessory before the fact a principal and subject to punishment accordingly, unless the statute provides that an accessory before the fact may be charged or indicted as a principal, one who is an accessory cannot be convicted on an indictment charging him as a principal. Code, Art. 27, § 6 contains no reference to the manner of charging the offense. [2] It appears that 8th Street is also known as Laurel Grove Avenue. The dwelling was situated on a corner lot at the intersection of 8th Street and Route 198, also known as Talbott Avenue, the road alongside the house. [3] At an evidentiary hearing prior to trial the hearing judge also found that the statement had been voluntarily made. [4] William Neilson, Marcus Pressley and Paul David White were jointly indicted with the appellant. However the appellant was tried alone. [5] Although in his statement he denied knowing that his companions had "any gas," discrepancies between a confession and testimony as to the circumstances of the crime go only to the weight of the evidence. Whitmer v. State, 1 Md. App. 127. The jury was under no obligation to believe the denial. See Sanders v. State, 2 Md. App. 484; Dunlap v. State, 1 Md. App. 444. [6] However during his testimony at the preliminary hearing he said that no charges were placed against him at that time, that the officers said nothing about placing him under arrest, and that he was, in fact, not placed under arrest. [7] Prior to the appellant's trial there was an evidentiary hearing on a motion filed by Neilson to suppress the statement made by him. The hearing judge found that the Miranda safeguards had been observed and that the statement was freely and voluntarily made. The issue was also raised at the appellant's trial and the trial court found that Neilson's statement "complied with the provisions of the law." [8] At a preliminary hearing at which the hearing judge found the appellant's statement to have been voluntarily made, the appellant testified that the police asked him "* * * would you like to make a statement, said Mr. Neilson had done made statements against me saying that I was involved in one arson charge." He said the police showed him some papers, saying they were Neilson's statement but he did not ask to read it. The appellant did not testify on the matter at the trial.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519040/	806 S.W.2d 131 (1991) Gregory KRAMER, Appellant, v. Valerie MASON, Respondent. No. 58451. Missouri Court of Appeals, Eastern District, Division Two. March 26, 1991. 133 William L. Webster, Atty. Gen., Cynthia H. Hearring, Asst. Atty. Gen., St. Louis, for appellant. Gregory F. Quinn, Frederick P. Johnston, Manchester, for respondent. GARY M. GAERTNER, Presiding Judge. Appellant, Gregory Kramer, the superintendent of Bellefontaine Habilitation Center (Bellefontaine), appeals from a decision of the Circuit Court of St. Louis County affirming the July 28, 1989, administrative decision of the personnel advisory board disapproving and reversing respondent, Valerie Mason's, dismissal from employment. We affirm. Respondent is a Developmental Assistant II[1] at Bellefontaine, a State owned and operated facility for the mentally retarded and developmentally disabled. On January 20, 1989, respondent was working the 2:15 p.m.10:45 p.m. shift in cottage 1710 on the Bellefontaine grounds. About eight individuals or "clients" reside in cottage 1710 including the complainant below, Scott E. The evidence reveals that on the evening of January 20, 1989, Bellefontaine was holding a dance for its clients. Due to an altercation with staff members earlier that day, Scott E. was not permitted to attend the dance. At approximately 7:30 p.m., Scott E.'s roommate, Daryl, returned from the dance and went into their room. Respondent testified that, as soon as Daryl returned, Scott E. "took off back there and started picking on him." Respondent went back to the room and told Scott E. to stop teasing Daryl. Respondent then left the room. A few minutes later, respondent heard Daryl screaming at Scott to leave him alone. Respondent again walked into the room and told Scott E. to stop misbehaving or she would talk to her supervisor about him not being allowed to go home for the weekend. At this point, Scott E. uttered an obscenity and told her she was a black female member of the canine family. Scott E. then began swinging at respondent. Respondent testified that Scott E. then fell back on his bed and kicked respondent in the chest. Respondent waited until Scott E. moderated his kicking, then respondent straddled Scott's legs, and held his arms. Respondent testified that she held Scott E. in this manner for a few minutes and, approximately every 30 seconds, asked him if he were calmed down. When he answered respondent in the affirmative, respondent let him get up. Respondent stated that she held Scott E. down for a total of three to five minutes. Respondent explained that the reason she held him down this long was because she had never seen him that agitated before and feared for the safety of his roommate if she let him up. The following morning, Scott E. reported that respondent had choked him. An examination discovered a petechial rash on his neck consistent with pressure being applied in that area.[2] Margaret Main, a registered nurse with Bellefontaine testified that "a fair amount of pressure" is required to cause a petechial rash and that the rash would probably appear within an hour if a lot of pressure was applied. Respondent was notified by a letter dated February 24, 1989, that she was being terminated. The reason given for the termination included, inter alia, the altercation that occurred on January 20, 1989, with Scott E. A hearing was held on June 6, 1989, before the personnel advisory board. No evidence of any other misconduct other than the January 20, 1989, incident was adduced at the hearing. On July 28, 1989, findings of fact and conclusions of law were handed down with the board finding that the testimony of Scott E. lacked credibility 134 and unanimously reversing the decision to terminate respondent. The decision of the board was affirmed by the Circuit Court of St. Louis County on April 30, 1990. This appeal followed. We initially note that an appellate court sitting in review of an administrative agency reviews the findings and conclusions of the agency rather than the judgment of the circuit court. Hudson v. Wellston School District, 796 S.W.2d 31, 33 (Mo.App., E.D.1990). In conducting such a review, this court may only determine whether the board reasonably could have reached the decision it did. We may not substitute our judgment of the evidence and may not set aside the board's decision unless it is not supported by competent and substantial evidence on the whole record or is contrary to the overwhelming weight of the evidence. Id. In addition, the evidence must be considered in the light most favorable to the board's decision, together with all reasonable inferences where supported. Id. If evidence before an administrative body would warrant either of two opposed findings, the reviewing court is bound by the administrative determination and it is irrelevant that there is evidence to support a contrary finding. Id. Finally, the determination of the credibility of the witnesses is a function of the administrative tribunal. Id. Appellant first claims that the personnel advisory board misapplied the law to the facts in concluding that respondent, by straddling Scott E. on the bed and holding his arms down, did not commit physical abuse of a client as defined by Missouri Department of Mental Health Operating Resolution 2.205. Physical abuse is defined in DOR 2.205 as "1. purposely beating, striking, wounding or injuring any client, or 2. in any manner whatsoever, mistreating or maltreating a client in a brutal or inhumane manner. Physical abuse includes handling a client with any more force than is reasonably or apparently necessary for a client's proper control, treatment or management." See also RSMo § 630.155 (1986). In his initial brief, appellant hangs his hat on the phrase "handling a client with any more force than is reasonably or apparently necessary for a client's proper control, treatment or management." In his reply brief, appellant switched horses and relied on the language "mistreating or maltreating a client in a brutal or inhumane manner." We feel compelled to point out that, as the board found that respondent merely straddled and held down Scott E., appellant's argument that respondent's actions rose to brutal or inhumane treatment are questionable. In addition, as this was first raised in appellant's reply brief, simple fairness precludes our consideration of whether the actions were brutal or inhumane. Reply briefs are solely to be used to "reply" to arguments made by respondents in their briefs to our court and not to raise new points on appeal. Any other holding would deny the respondent the opportunity to respond to appellant's allegations. Big Boys Steel Erection, Inc. v. Hercules Construction Co., 765 S.W.2d 684, 687 (Mo. App., E.D.1989). A consideration of the evidence before the board demonstrates the amphigoric nature of appellant's argument that the force used was more than "reasonably or apparently necessary." Scott E. was described by several witnesses, including himself, as a bad actor with a bad temper. Respondent had earlier warned him to behave and he refused to do so. When she approached him a second time, he started swinging at respondent and kicked her in the chest. Respondent testified that, although Scott E. had a bad temper, she had never seen him quite this physical with a staff member and was concerned for the safety of his roommate, Daryl. She waited for Scott E. to moderate his kicking, straddled him and held his arms. Scott E. then appeared to calm down. Appellant claims that respondent should have, at that point, allowed Scott E. up and that, in failing to do so, she committed physical abuse. We see no "abuse" in failing to let him up until she was sure he was calmed down. *135 Appellant next claims that the board erred in reversing the dismissal of respondent because its findings that respondent had not choked Scott E. were not based on competent and substantial evidence and because the board mistakenly interpreted certain evidence. As noted earlier, this court only reviews the findings to determine if the board reasonably could have reached the decision it did. Hudson, 796 S.W.2d at 33. We may not substitute our judgment of the evidence for that of the board unless the board's decision is not supported by substantial and competent evidence. Id. The board below found that Scott E.'s testimony was not credible and was "confusing, contradictory and inconsistent." After reviewing the transcript, we find this to be an extremely accurate assessment of the testimony of Scott E. Scott E. initially testified that respondent choked him and that he saw marks on his neck immediately after the choking. Later in his testimony, Scott testified that the marks on his neck were self-inflicted. Nurse Main testified that the marks on Scott E.'s neck could have appeared within an hour of the choking, yet Irma Moore, one of respondent's supervisors testified that she went to cottage 1710 just after the incident and remained there for several hours and never saw any marks on Scott E.'s neck. Respondent denied ever choking Scott E. The board did not err. Point denied. Appellant's final point is that the board was "arbitrary and capricious or unreasonable" and abused its discretion in failing to rule on certain objections during the cross-examination of Scott E. Appellant has cited this court to 42 incidents where he claimed the board failed to rule on an objection. Although the board did not use the terms "overruled" or "sustained," in 39 of these incidents the board made its ruling clear by advising the attorneys to move on to the next question, to rephrase the question asked or by telling the witness to answer the question. In several of the incidents cited, the board did expressly sustain or overrule the objection posed. As to the other objections which were not ruled on, this court first recognizes that technical rules of evidence do not control an administrative hearing. Franklin v. Board of Directors School Dist. of Kansas City, 772 S.W.2d 873, 883 (Mo.App., W.D.1989). In addition, since decisions rendered by an administrative body are presumed to be valid, appellants carry the burden of overcoming this presumption by establishing unfairness in the procedure. Mueller v. Ruddy, 617 S.W.2d 466, 475 (Mo.App., E.D.1981). We have reviewed the testimony presented to the board and the objections made by appellant's counsel below.[3] Rather than find unfairness on the part of the board, we find it was admirably restrained in dealing with the situation. Appellant's attorney below requested leeway from the board during his direct examination of the victim and then relentlessly pounded the board with what were often frivolous objections, most of which were followed by a short speech. The testimony of Scott E. was confusing and he continuously contradicted himself. This made it very difficult to get a clear story on cross-examination. With his constant objections, appellant transformed the hearing from a proceeding to ascertain the truth into a battle, complete with snide remarks aimed at respondent's attorney. While we do not wish to discourage attorneys from making helpful objections, we will not countenance pointless objections made for the purpose of hearing oneself speak. The board was not unfair or biased against the appellant and its actions were not arbitrary or capricious. Point denied. Affirmed. CRANDALL, C.J., and CRIST, J., concur. NOTES [1] A Developmental Assistant II is a nonprofessional position as a lead worker in implementing program plans in various areas related to patient welfare. The position involves some supervisory responsibility. [2] A petechial rash is a collection of minute red spots that indicate bleeding from blood vessels. It is not really a "rash" as that word is commonly understood. [3] Appellate counsel did not represent appellant before the board below.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519042/	806 S.W.2d 332 (1991) Stephen MIXON, Appellant, v. NATIONAL UNION FIRE INSURANCE CO. OF PITTSBURGH, PA., Appellee. No. 2-89-266-CV. Court of Appeals of Texas, Fort Worth. March 20, 1991. Rehearing Overruled April 24, 1991. 333 Dushman & Friedman, P.C., and Jack Friedman, for appellant. Camp, Jones, O'Neill, Hall & Bates, and John W. Greene and Barry S. Green, for appellee. Before FARRIS, HILL and MEYERS, JJ. 334 OPINION HILL, Justice. Stephen Mixon appeals from a judgment that he take nothing in this workers' compensation case that resulted from an injury suffered by Mixon in the course and scope of his employment. The jury found that Mixon was permanently and partially incapacitated, but that the incapacity was limited to the use of the left arm. Because of credits due to Aetna for payments made to Mixon or on his behalf prior to trial, the trial court entered a judgment that Mixon take nothing, except for reasonable and necessary medical expenses relating to the injury. The trial court did not grant Mixon's motion for judgment non obstante veredicto. In four points of error, Mixon contends that the trial court erred in: (1) submitting question number three, inquiring whether his incapacity was limited to the use of his left arm, because it is an inferential rebuttal issue; (2) denying recovery based on the jury's affirmative answer to that question because any general injury to the body or its nerves, which then only affects the use of the extremities, may continue to be a "general incapacity" under the meaning of the Texas Workers' Compensation Act if it results in some loss of earning capacity; (3) failing to grant the motion for judgment non obstante veredicto; and (4) assessing court costs against Mixon. This case is governed by TEX. REV.CIV.STAT.ANN. art. 8306, now repealed. We reform the judgment to assess costs of court to National Union because Mixon was a "successful party" within the meaning of Rule 131 of the Texas Rules of Civil Procedure even though he received a takenothing judgment. We affirm the judgment as reformed because we hold that: (1) Mixon waived any error as to the submission of jury question number three on the basis of his argument that it was an inferential rebuttal issue since he failed to object to its submission on that basis; (2) Mixon may not raise the inferential rebuttal issue by means of a motion for judgment non obstante veredicto since the purpose of such a post-trial motion is to raise evidentiary questions; and (3) Mixon is not entitled to recover for a general injury since he suffered only what is classified as a specific injury and did not suffer a concurrent general injury that led to any incapacity. Mixon contends in point of error number one that the trial court erred by submitting question number three, that inquired as to whether his incapacity was limited to the use of his left arm, because it is an inferential rebuttal issue. At trial, Mixon's only objection was that the submission of the issue was contrary to the evidence because all of the evidence related to an injury to his shoulder. Because Mixon's objection at trial is not the same objection he presents on appeal, no error is preserved. See Republic-Vanguard Life Insurance v. Walters, 728 S.W.2d 415, 419-20 (Tex.App.Houston [1st Dist.] 1987, no writ). We overrule point of error number one. Mixon asserts in point of error number three that the trial court erred in failing to grant his motion for judgment non obstante veredicto because question number three was an inferential rebuttal issue that placed an additional and contradictory burden of proof upon him. A complaint that the trial court erred in failing to grant a motion for directed verdict or judgment non obstante veredicto raises only "no evidence" points for purposes of appeal. Southwestern Bell Tel. Co. v. Sims, 615 S.W.2d 858, 861 (Tex. App.Houston [1st Dist] 1981, no writ). Mixon is not complaining about the sufficiency of the evidence, only the propriety of the question as an inferential rebuttal issue. As we have previously noted, Mixon failed to preserve error as to that issue. Any effort to object after the trial would not have been timely. We overrule point of error number three. Mixon argues in point of error number two that the trial court erred in denying him recovery based on the answer to question number three because any general injury to Mixon's body or its nerves, which then affects only the use of the extremities, 335 may continue to be a "general incapacity" under the meaning of the Texas Workers' Compensation Act if it results in some loss of earning capacity. It is undisputed that Mixon was injured on the job on February 25, 1987, and that he suffered a dislocated shoulder. As we have noted, the jury found that the incapacity caused by the injury to Mixon's shoulder was limited to the use of his left arm. Compensable injuries are divided into two main classes, general injuries and specific injuries. Aetna Casualty and Surety Company v. Moore, 361 S.W.2d 183, 185 (Tex.1962). All compensable injuries must be compensated as general injuries unless the Workers' Compensation statutes classify them as the subject of specific compensation. Id. at 185. An injury outside of a specific member that causes disability that is confined to a specific member is entitled to specific compensation. Id. at 187. We interpret the principles outlined in Moore to mean that such an injury, therefore, would be compensated as a specific injury, but not as a general injury, without regard as to whether the worker was able to prove a loss of earning capacity. In contending that his injury may also be classified as a general injury, Mixon relies on the cases of Rivera v. Texas Employers' Ins. Ass'n, 701 S.W.2d 837 (Tex. 1986); McCartney v. Aetna Casualty & Surety Co., 362 S.W.2d 838 (Tex.1962); and Chapa v. United States Fire Ins. Co., 644 S.W.2d 823 (Tex.App.Corpus Christi 1982, writ ref'd n.r.e.). In Chapa, the Court of Appeals held that where there is a specific injury and a concurrent general injury the worker can recover only for the injury that produces the longest period of incapacity or the greatest benefits. Chapa, 644 S.W.2d at 826. In Rivera and McCartney, the Texas Supreme Court held that when an injured employee proves an injury to a specific member of the body and also a concurrent general injury, the jury may consider the combined, unsegregated effects of his general and specific injuries in assessing his incapacity. Rivera, 701 S.W.2d at 839; McCartney, 362 S.W.2d at 840. We agree with the holdings in all of those cases and do not find them to be inconsistent with our holding in this case because in this case Mixon has shown only one injury that might have resulted in any incapacity, an injury that we have held to be a specific injury. He therefore failed to show a concurrent general injury that could have resulted in any incapacity. We overrule point of error number two. Mixon contends in point of error number four that the trial court erred in assessing the costs of court against him because he recovered his right to future medical expenses, even though he otherwise received a take-nothing judgment. Rule 131 of the Texas Rules of Civil Procedure provides that the successful party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided. A "successful party" is one who obtains a judgment of a competent court vindicating a civil claim of right. Perez v. Baker Packers, 694 S.W.2d 138, 143 (Tex.App.Houston [14th Dist] 1985, writ ref'd n.r.e.); Lovato v. Ranger Ins. Co., 597 S.W.2d 34, 37 (Tex.Civ.App. Amarillo 1980, writ ref'd n.r.e.). This case was brought by National Union as an appeal from a final ruling of the Industrial Accident Board of Texas awarding Mixon certain worker's compensation benefits. National Union alleged that the award was wholly erroneous and unjust, both in law and in fact, and should be canceled. Mixon counterclaimed, alleging his injury and seeking workers' compensation benefits, including medical benefits. National Union, in its answer to Mixon's counterclaim, alleged several affirmative defenses, including an assertion that any incapacity was caused solely by disease or injury sustained by Mixon prior to or subsequent to the date of Mixon's injury, and was not connected to his employment on that date. Under the jury's verdict, Mixon was found to be entitled to benefits, but received a take-nothing judgment because of credits due to National Union. He did, however, recover "reasonable and necessary medical expenses relating to this 336 injury as provided by the Texas Workers Compensation Statutes." Because Mixon obtained a judgment of a competent court vindicating a claim of right, civil in nature, he was a "successful party" within the terms of Rule 131. Therefore, the trial court erred in assessing costs of court against him and not National Union. See Perez, 694 S.W.2d at 143. We sustain point of error number four. We reform the judgment to provide that the costs of the trial court are charged to National Union Fire Insurance Company and affirm the judgment as reformed. In view of the reformation of the judgment, one-fourth of the costs on appeal are charged to National Union Fire Insurance Company, with the remainder charged to Stephen Mixon. FARRIS, Justice, concurring. I disagree with the majority holding that Mixon did not suffer a general injury, but I concur in the result. As the majority notes, it is undisputed that Mixon suffered a dislocated shoulder when he was injured on the job. The jury finding that his incapacity was limited to the use of his left arm does not change the nature of Mixon's injuries; he suffered concurrent general and specific injuries. I concur because Mixon's complaints on appeal present no error for our consideration. The Texas Supreme Court has described how jury questions addressing these issues should be submitted. See Rivera v. Texas Employers' Ins. Ass'n, 701 S.W.2d 837, 838-39 (Tex.1986). Because Mixon neither tendered a proper submission of these questions nor objected to question three as an inferential question, he has not preserved error and the judgment of the trial court should be affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519038/	806 S.W.2d 54 (1991) STATE of Missouri, Respondent, v. Sallehuddin HASNAN, Appellant. No. WD 43301. Missouri Court of Appeals, Western District. February 5, 1991. Motion for Rehearing and/or Transfer Denied April 2, 1991. 55 T. Jefferson Stephens, Grant City, for appellant. David A. Baird, Maryville, for respondent. Before GAITAN, P.J., and TURNAGE and KENNEDY, JJ. Motion for Rehearing and/or Transfer to Supreme Court Denied April 2, 1991. GAITAN, Presiding Judge. Appellant, Sallehuddin Hasnan, an alien, non-immigrant student, pled guilty at two separate times to the misdemeanors of passing bad checks in violation of Mo.Rev. Stat. § 570.120 (1986). As a result of these guilty pleas, appellant is facing federal deportation proceedings. Mr. Hasnan appeals the refusal of the trial court to grant his motion for relief from the two judgments and to set aside his guilty pleas. The gist of appellant's argument is that his pleas of guilty, made pro se, should be rescinded because the trial court did not inform him that deportation proceedings could result from his guilty pleas. There are no factual issues to resolve in this case as both parties agree on the material facts. On January 28, 1986, appellant appeared pro se and pled guilty, under § 570.120, to the misdemeanor of passing a bad check in the amount of $10.71. The court suspended imposition of the thirty-day sentence and placed appellant on probation for one year. On December 16, 1986, after passing another bad check, this time for $17.13, appellant again pled guilty pro se to a second violation of § 570.120. As a result of this second guilty plea, the original sentence was executed and a second sentence of 180 days was initially suspended and appellant was placed on two year bench probation. This second sentence was executed after subsequent episodes of writing bad checks. In both criminal proceedings above, the trial court did not inform appellant that a plea of guilty could bring about federal deportation hearings. Upon discovering the possibility of deportation proceedings, appellant filed a motion with the circuit court for relief from the judgment and to set aside his guilty pleas. The court, after hearing evidence and arguments on the motion, denied appellant's request for relief. Appellant seeks review of this decision. The thrust of appellant's argument on appeal is that without disclosure of the possible consequence of deportation, the appellant could not make a knowing, intelligent guilty plea. In his postsentencing motion, appellant sought a civil remedy based upon Missouri Supreme Court Rule 74.06. There is, however, no authority that this civil remedy is appropriate within a criminal context such as this. Appellant, in essence, sought the relief stated in Rule 29.07(d), that the trial court allow him to withdraw his guilty pleas after the sentences had been imposed. Only upon a showing that it is necessary "to correct manifest injustice" can the motion court grant such relief. Rule 29.07(d); State v. England, 599 S.W.2d 942, 947 (Mo.App. 1980). In reviewing the refusal of the motion court to allow withdrawal of the guilty pleas, we must decide whether the trial court abused its discretion or was clearly erroneous. State v. Cowan, 615 S.W.2d 510, 511 (Mo.App.1981). Further, the defendant bears the burden of proving, by a preponderance of the evidence, error in the motion court's ruling. Jackson v. State, 654 S.W.2d 105 (Mo.App.1983); Cowan, 615 S.W.2d at 511. In rejecting the appellant's request for relief, the trial court stated that "the Court [is not] obligated to tell any defendant of every possible legal consequence to a plea of guilty." Indeed, the court's rationale is a colloquial form of the general rule that requires "the court to inform the defendant of the `direct' consequences of his plea; [but not] the `collateral' consequences of his plea." Huffman v. State, 703 S.W.2d 566, 568 (Mo.App. 1986); see also McIntosh v. State, 627 S.W.2d 652, 655 (Mo.App.1981) ("[no] Missouri law or precedent ... requires that the defendant be instructed in the collateral consequences of his guilty plea in order for the plea to `stick'"); George v. Black, 732 F.2d 108, 110 (8th Cir.1984). Thus, in order 56 for the appellant to succeed, he must show that deportation hearings are a direct, and not collateral, result of a guilty plea. Two sources yield a working definition of what constitutes a "direct," verses a "collateral," result of a guilty plea. The first is found in Missouri Supreme Court Rule 24.02(b) which outlines the "Advice to Defendant" that must be given by the court before accepting a guilty plea. Rule 24.02(b) enumerates defendant's rights and the possible results of a guilty plea. It is logical to conclude, as have other courts confronted with this problem, that the possible results enumerated in Rule 24.02(b) are "direct" results of which the defendant must be aware before rendering a valid plea. See Huffman, 703 S.W.2d at 568. Given the mandatory nature of this rule, it is also logical to conclude that this list is exclusive and that all "direct" results are stated therein. Under no construction or reading of Rule 24.02(b) can deportation proceedings be found to be "direct" consequences of a guilty plea. Caselaw provides a second definition for "direct" consequences. This caselaw definition, although more abstract than Rule 24.02(b), also yields the conclusion that deportation proceedings are a collateral consequence of a guilty plea. "The `direct consequences' of a plea are those which definitely, immediately, and largely automatically follow the entry of a plea of guilty." Huffman, 703 S.W.2d at 568; see also George v. Black, 732 F.2d at 110. While there is no Missouri authority directly on point, Rule 24.02(b) is nearly identical to its federal counterpart, Fed.R.Crim.P. 11. See Committee Note, Rule 24.02(b) (1990). Accordingly, Missouri courts have held federal caselaw interpreting and applying Fed.R.Crim.P. 11, as persuasive precedent in understanding Rule 24.02(b). See Huffman, 703 S.W.2d at 568 (Mo.App. 1986); Griffin v. State, 684 S.W.2d 425, 427 (Mo.App.1984). Federal caselaw uniformly holds that deportation proceedings are a collateral result of a guilty plea and as such, need not be disclosed to a criminal defendant entering a plea of guilty. In Downs-Morgan v. United States, 765 F.2d 1534, 1537-39 (11th Cir.1985), the Court was faced, within the context of Fed. R.Crim.P. 11, with the precise issue before us now. The Court stated that deportation proceedings are not a mandatory, automatic result of a guilty plea, but are instead discretionary. Id. at 1538. As discretionary actions, deportation proceedings do not meet the definition of "direct" consequences stated in Huffman. 703 S.W.2d at 568. Further, the Court in Downs-Morgan concluded that "[a]ll the courts considering the various versions of Rule 11 agree that it does not require the trial judge to apprise the defendant of the possible immigration consequences of his guilty plea." Downs-Morgan, 765 F.2d at 1538. The Court's conclusion in Downs-Morgan was based upon a multitude of federal and state decisions reaching the same result. Id. at 1538, 1539 n. 12; see also United States v. Campbell, 778 F.2d 764, 767 (11th Cir. 1985). The reasoning stated in Downs-Morgan persuades us that deportation proceedings are a collateral consequence of a guilty plea. Thus, the motion court did not err in refusing to grant appellant's request for relief from the judgments. The circuit court, is accordingly, affirmed. All concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519059/	100 N.J. Super. 595 (1968) 242 A.2d 861 LLOYD W. MC CORKLE, COMMISSIONER OF INSTITUTIONS AND AGENCIES OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. BERNARD SMITH, DEFENDANT-APPELLANT. BERNARD SMITH, PLAINTIFF-APPELLANT, v. LLOYD W. MC CORKLE, DEFENDANT-RESPONDENT. Superior Court of New Jersey, Appellate Division. Argued April 22, 1968. Decided May 10, 1968. 596 Before Judges GOLDMANN, KILKENNY and CARTON. Mr. Samuel A. Donio, assigned counsel, argued the cause for appellant Bernard Smith. Mr. Eugene T. Urbaniak, Deputy Attorney General, argued the cause for respondent (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney). The opinion of the court was delivered by KILKENNY, J.A.D. In these combined appeals Bernard Smith, a long-term prisoner at State Prison, charges that: (1) the Commissioner of Institutions and Agencies did not 597 have authority under R.S. 30:4-7 to transfer him to a state mental hospital; (2) his commitment to the Trenton State Hospital was done under circumstances fundamentally unfair and shocking to a sense of justice, in violation of constitutional due process guaranteed by the Fourteenth Amendment, and (3) his continued detention at that hospital entitled him to a writ of habeas corpus, erroneously denied. At the time of oral argument of this appeal Smith had been retransferred from the Trenton State Hospital to State Prison, thereby making moot substantially all of his claims of administrative and judicial error. Since the issues may arise again, we consider for future guidance the points advanced by him. Smith was received at State Prison on December 19, 1946 after conviction in Atlantic County of robberies, breaking and entering, and murder. Consecutive sentences aggregating 48 to 52 years were imposed, to which was superadded a consecutive life sentence. Thereafter, the Mercer County Court imposed an additional five-to-seven-year sentence for atrocious assault and battery, which was made consecutive to the aforementioned sentences, and later lodged as a detainer. The record indicates that Smith has a long history of mental illness. As early as November 24, 1954 Dr. Paul B. Means, a staff psychiatrist at State Prison, indicated that Smith required treatment for a psychopathic personality with psychosis paranoid type. By reason thereof, he was transferred to the New Jersey State Hospital for treatment for that condition. Authority for the transfer was based on R.S. 30:4-7. Smith improved and he was returned to prison on February 28, 1964. On January 27, 1965 Dr. Sidney G. Fine, a clinical psychiatrist at the State Prison, found Smith in partial remission with a diagnosis of schizophrenic reaction. Subsequent examinations by Dr. Fine in March and April, and on May 21, 1965 disclosed his adjustment as not favorable. Smith was retransferred to the State Hospital on May 21, 1965. He remained there until January 17, 1966 when, his 598 condition having improved, he was again transferred to prison to continue service of his sentences. Dr. Fine again found him psychotic on August 10, 1966 and on the same day Smith was once more transferred to the State Hospital. After this transfer, Smith challenged his continued hospitalization. Judge Kingfield, sitting specially on September 22, 1966 at the hospital, after hearing and considering the psychiatric testimony presented, found that Smith was still in need of hospitalization. A writ of habeas corpus was denied. All of the above transfers were made under the authority of R.S. 30:4-7. However, the last transfer to the hospital was followed by a regular commitment hearing in the Mercer County Court, pursuant to R.S. 30:4-82. At that hearing, Smith asked for the appointment of an attorney or a psychiatrist to act in his behalf. His request was denied by the hearing judge. Following testimony by Dr. Joachim Elizondo and Dr. Pongrac Feniczy, two licensed physicians on the staff of the New Jersey State Hospital at Trenton, and also the testimony of Smith, the County Court determined that he was mentally ill and required hospitalization for such mental illness. Accordingly, an order was entered on May 12, 1967 committing Smith to the New Jersey State Hospital at Trenton to be cared for there at the expense of the State of New Jersey. Subsequent thereto, as first noted above, Smith recovered his mental competency sufficiently to be returned to State Prison. (We have informally been advised by his attorney that Smith was transferred back to the State Hospital on or about April 28, 1968). I We find lacking in merit Smith's claim that the Commissioner of Institutions and Agencies did not have authority under R.S. 30:4-7 to transfer him from State Prison to the State Hospital at Trenton. That statutory provision, originally L. 1918, c. 147, sets forth: 599 "Each board of managers shall have power to place any inmate in any hospital in the State for such medical or surgical treatment as may be necessary, which cannot properly and adequately be rendered within the institution, and to pay for the care, maintenance and treatment of such persons, the approval of the commissioner first having been obtained." To facilitate transfers, often arising under emergency conditions, the Board of Managers of State Prison has authorized the Commissioner, upon request of the Warden, to make these transfers. Smith's transfers were made pursuant to the statutory authority and administrative procedure. The State Prison does not have a psychiatric unit wherein patients suffering from mental illness can be treated on a long-term basis. There are available the services of a medical director, psychiatrist and nurses to deal with day-to-day problems. There is an infirmary to accommodate surgical cases and after-care convalescence on a longer term basis, but a ward for psychotic patients has not yet been developed. Hence, when a prisoner becomes mentally ill and poses a danger to himself and other prison inmates, temporary transfer to a mental hospital where he can be properly treated becomes necessary and is sanctioned by R.S. 30:4-7. These temporary transfers from prison to hospital now limited to 30 days without formal commitment by L. 1965, c. 59, § 70 (N.J.S.A. 30:4-84) permits psychiatric treatment of the prisoner under more suitable surroundings at the expense of the State. Their salutary benefits were manifested in Smith's case by the improvement in his mental condition as a result of the hospital care. Additionally, the transfer without court commitment proceedings under R.S. 30:4-82 eliminated any stigma possibly attaching to the entry of the court order and the determination of mental illness expressed therein. The prison authorities have found by experience that episodes of psychosis on the part of inmates are frequently of short duration and, therefore, do not warrant formal commitment proceedings. 600 When the prison and hospital authorities ultimately felt that Smith's psychotic episodes would continue, then a regular commitment proceeding was pursued under R.S. 30:4-82. There has been no showing that Smith has been prejudiced by earlier transfers to the hospital, without court order, for substantially longer periods than now contemplated by law and the administrative regulations. In each instance, he has been retransferred to prison in better mental health. He has not suffered so far as parole is concerned. The parole board heard his application for parole on February 21, 1968. Another hearing is scheduled for May 1969. Much will depend upon an improvement in his mental condition. We conclude that the Commissioner of Institutions and Agencies does have authority under R.S. 30:4-7, as implemented by the administrative regulations, to make transfers of inmates of State Prison to a state mental hospital, when the need arises, without formal court commitment proceedings, but subject to the limitations imposed by L. 1965, c. 59, § 70; N.J.S.A. 30:4-84. II In the hearing before Judge Kingfield, a question arose as to whether Smith's challenge as to the propriety of the Commissioner's order of transfer required review in the Appellate Division under R.R. 4:88, rather than the sought for writ of habeas corpus. Despite the judge's view that Appellate Division review was the proper remedy, Smith was accorded a hearing on the merits as to his application. A writ of habeas corpus was denied. The substantive issue became moot when Smith was returned to State Prison, where he wanted to be when he challenged his transfer to the State Hospital. As to the procedural question, R.R. 4:88 provides a simple and direct appellate review of any final order or decision of any state administrative agency or official. This rule presents 601 an available remedy to one who feels aggrieved by a state administrative ruling. As to persons confined in any hospital for the insane within this State, an application for a writ of habeas corpus is listed as an appropriate remedy in N.J.S. 2A:67-13, paragraph e, for determining sanity or insanity. So, too, N.J.S.A. 30:4-24.2, in defining the rights of patients, including the mentally ill, committed to institutions in this State, provides: "Any individual detained pursuant to this act shall be entitled to a writ of habeas corpus upon proper petition by himself, by a relative, or a friend to any court of competent jurisdiction in the county in which he is detained." Thus, habeas corpus appears to be an available remedy to one confined in any hospital or institution on the grounds of insanity or mental illness for the purpose of determining the basis for the confinement. Is habeas corpus an appropriate remedy when it will not effect the complete release of the person detained, but merely alters the place of his confinement from State Prison to a state mental hospital? The converse of this situation was considered in State v. Newton, 17 N.J. 271 (1955). There, Newton petitioned for a writ of habeas corpus when he was transferred from a mental institution, to which he had been committed as a sex offender, to State Prison to serve the remainder of his term. Denial by the County Court of the writ was affirmed by the Supreme Court. It noted that Newton was not entitled, in any event, to his immediate release from custody and denial of the writ of habeas corpus might be sustained on that ground alone. But see State v. Wingler, 25 N.J. 161, 180-181 (1957). However, in Newton, the court proceeded to decide the issue on its merits and concluded that the Commissioner of Institutions and Agencies had the authority, in his discretion, to transfer Newton from a mental institution to State Prison to serve the remainder of his term. 602 In the instant case Smith, too, was not entitled to immediate release from custody when he sought by habeas corpus proceeding to review the validity of the Commissioner's order, transferring him from State Prison to the State Hospital at Trenton for psychiatric treatment. The orders of May 24, 1965 and August 10, 1966 recited that Smith was "to be retransferred to the State Prison at Trenton upon completion of this special service." While habeas corpus may have been a technically available remedy, by virtue of N.J.S. 2A:67-13 or N.J.S.A. 30:4-24.2 supra, the ordinary remedy in such a situation was a review of the administrative action in the Appellate Division, pursuant to R.R. 4:88-8. The judicial commitment by the County Court was reviewable by appeal a remedy Smith pursued herein. In all events, Judge Kingfield properly denied the writ on the merits. Furthermore, the challenged action was remedied by Smith's retransfer to State Prison during the pendency of this appeal. III It would have comported more with fundamental fairness to have assigned an attorney to act on Smith's behalf, when he made a request for an attorney on his application for habeas corpus and at the commitment hearing in the County Court. We acceded to such a request when he sought leave to appeal as an indigent. In our view, counsel should be provided in every judicial commitment proceeding; this is the proper practice and one that should be pursued. See People ex rel. Rogers v. Stanley, 17 N.Y.2d 256, 270 N.Y.S.2d 573, 217 N.E.2d 636 (Ct. App. 1966). However, the denial of Smith's requests for counsel at the habeas corpus and County Court hearings raises a moot issue at this time in the light of Smith's retransfer from the State Hospital to State Prison. What he sought by habeas corpus was thus accomplished; the County Court order of commitment spent itself. Its only use was to effect 603 a commitment under R.S. 30:4-82. Its vacation at this time would serve no useful purpose. Under the circumstances, the orders under review are affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519057/	522 F. Supp. 867 (1981) Mark LOMBARDI, an Infant, by his natural father, Vincent Lombardi, and on behalf of all those similarly situated, Plaintiffs, v. Gordon M. AMBACH, Commissioner, State Education Department, Defendant. 79 C 1396. United States District Court, E. D. New York. July 17, 1981. 868 Murray B. Schneps, New York City, for plaintiffs. Robert D. Stone, New York State Dept. of Ed., Albany, N. Y., for defendant; by Seth Rockmuller, Albany, N. Y. MEMORANDUM AND ORDER NEAHER, District Judge. Plaintiff, now aged 20, allegedly suffers from a neurological impairment that qualifies him to obtain through his local school board an individualized educational program appropriate to his special education needs, pursuant to N.Y.Educ. Law §§ 4401-4407 (McKinney's). The present action arises from the refusal of defendant Ambach, Commissioner of the New York State Education Department, to approve for the academic year 1976-1977 and thereafter, the plan of plaintiff's school board to contract for plaintiff's public education outside his school district and place him at the Trinity-Pawling School, a private residential school that purportedly offered an educational program appropriate to plaintiff's needs. The complaint alleges that the refusal unlawfully deprived plaintiff of a free education, in violation of the fifth and fourteenth amendments to the United States Constitution, federal statutory law, in particular, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the provisions of the Education for All Handicapped Children Act of 1975, 20 U.S.C. § 1401 et seq., and provisions of New York's constitution and statutory law. 869 For relief, plaintiff sought a declaration that the Commissioner's acts were unlawful as alleged, an injunction requiring defendant to execute contracts with the allegedly suitable and appropriate school attended by plaintiff and funding for his continued attendance, and a judgment directing reimbursement to plaintiff for his payment for education services which defendant did not pay but allegedly should have.[1] The action is now before the Court on plaintiff's motion for summary judgment, Rule 56(a), F.R.Civ.P., and defendant's motion to dismiss the complaint, Rule 12(b)(6), which has been treated by the parties as one for summary judgment. For the reasons that follow plaintiff's motion is denied, defendant's motion is granted and the action is dismissed. Before the merits of the motions are discussed it will be helpful briefly to put this lawsuit in the statutory and administrative context from which it arose, viz., the provision of free public education to handicapped children. While § 504 of the Rehabilitation Act generally proscribes discrimination against any "otherwise qualified handicapped individual" in any program or activity receiving federal funds, the Education for All Handicapped Children Act, supra, provides a detailed, comprehensive scheme for assuring that handicapped children obtain an appropriate, free education. States that wish to alleviate the financial burden of providing appropriate educational services for handicapped children can receive the federal funds made available by this Act on a fiscal year basis, by complying with various requirements of the federal statute and implementing regulations, 45 C.F.R. Part 121a. To be eligible for these funds the State must have "in effect a policy that assures all handicapped children the right to a free appropriate public education," 20 U.S.C. § 1412(1), and a plan modeled on the provisions of 20 U.S.C. § 1413(b), detailing the policies and procedures that will insure there are sufficient kind and number of facilities, personnel and services throughout the State to achieve the goal of educating handicapped children, see 20 U.S.C. § 1412(2)(A)(iii). Under 20 U.S.C. § 1412(5)(A) the State also must establish the procedural safeguards set forth in 20 U.S.C. § 1415. Under its plan the State must ensure that an "individualized educational program" is established, and revised annually, for each handicapped child. See 20 U.S.C. § 1414(a)(5). In New York this duty has devolved on the board of education for each school district. Through a duly established "committee on the handicapped," each school board must ascertain the number of handicapped children within the district and the nature of each child's handicapping condition. N.Y.Educ. Law, § 4402.1.a, b(1), (3). The committee on the handicapped is directed to "review and evaluate all relevant information" about each child and to make recommendations as to appropriate educational programs and placement. Id., § 4402.1.b(3)(a), (b). Federal law also requires that the responsible State educational agency or unit "insure that a continuum of alternative placements is available to meet the needs of handicapped children for special education," 45 C.F.R. § 121a.551(a), as part of the State's general obligation to insure that to "the maximum extent appropriate" handicapped children are educated with children who are not handicapped, 20 U.S.C. § 1412(5)(B); 45 C.F.R. § 121a.550(b). When children are placed in private schools the State must insure that this occurs "at no cost to their parents." 20 U.S.C. § 1413(4)(B)(i). In "all such instances," however, "the State educational agency shall determine whether such [private] schools and facilities meet the standards that apply to State and local educational agencies and [shall insure] that children so served have all the rights they would have if served by such agencies." 20 U.S.C. § 1413(4)(B)(ii). 870 In New York, to satisfy its obligation "to furnish suitable educational opportunities for handicapped children," N.Y.Educ. Law § 4402.2.a, the local board of education "shall select the most reasonable and appropriate special service or program for such children" from the programs listed in N.Y. Educ. Law § 4401.2, which include "contracts with private residential schools which have been approved by the commissioner and which are within the state for special services or programs," id., § 4401.2.g. "All contracts with private schools pursuant to the provisions of paragraphs d, e, f, g, h and l of [§ 4401.2] shall be subject to the approval of the commissioner." Id., § 4402.2.b(2). The procedural safeguards required by 20 U.S.C. § 1412(5)(A) to be provided by the State plan must include an opportunity for an impartial due process hearing at which the parents or guardian of a handicapped child may "present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." 20 U.S.C. § 1415(b)(1)(E). If the State educational agency does not conduct the hearing itself, there must be opportunity for the aggrieved party to appeal the decision from the local educational agency to the State agency, which must render an independent decision after impartial review of the hearing below. 20 U.S.C. § 1415(b)(2), (c). Any party "aggrieved" by the State agency's findings or decision under § 1415(c) "shall have the right to bring a civil action with respect to the complaint presented pursuant to this section [§ 1415]," in any State court of competent jurisdiction, or in federal district court "without regard to the amount in controversy." 20 U.S.C. § 1415(e)(2). With respect to placement of a handicapped child in a private school, which is at the core of this lawsuit, it bears noting that "disagreements between a parent and a public agency regarding the availability of a program appropriate for the child, and the question of financial responsibility, are subject" to these due process procedures. 45 C.F.R. § 121a.403(b). At the outset, the Court is confronted with defendant's contention, based on the Court of Appeals' recent decision in Riley v. Ambach, No. 80-7600, slip op. 3113, (May 19, 1981), that the action is presently unsuited for consideration on the merits because plaintiff has not exhausted his administrative remedies. On the authority of that case we conclude that exhaustion is required, and that the action should be dismissed. In Riley v. Ambach, plaintiffs challenged actions of New York State and its Commissioner of Education which (1) defined as handicapped only those learning disabled children who exhibited a discrepancy of 50% or more between actual and expected achievement; and (2) removed from a list of schools qualified to meet the educational needs of handicapped children like plaintiffs all residential schools serving children with specific learning disabilities. Although the district court had reached the merits and enjoined these actions as inconsistent with the federal scheme, the Court of Appeals reversed, holding the plaintiffs improperly failed to exhaust administrative remedies. Observing that "[t]here are cases in which `[s]tate administrative remedies have been deemed inadequate by federal courts, and hence not subject to the exhaustion requirement, on a variety of grounds,' Gibson v. Berryhill, 411 U.S. 564, 575 n.14 [93 S. Ct. 1689, 1696 n.14, 36 L. Ed. 2d 488] (1973)," Riley v. Ambach, supra, slip op. at 3124-25, including agency predetermination of the issue, the court of appeals acknowledged that the "rule" requiring a plaintiff to "exhaust state administrative remedies before bringing a federal suit under the Education for All Handicapped Children Act has accordingly been bypassed in cases where the exercise of state administrative remedies would be futile," id., slip op. at 3125. Nevertheless the court determined that plaintiffs had not made "the requisite showing that they cannot secure the relief they seek from the State." Id. The court recognized that residential placement for children with learning disabilities 871 had been "rejected in advance by the Commissioner" but nonetheless required exhaustion because "the Commissioner might reverse himself in a compelling case," id., slip op. at 3128. The court explained that while "[n]ormally, exhaustion would not be required simply to afford an administrator an opportunity to revise an earlier decision or to make an exception to a previously promulgated rule of general application," id., slip op. at 3129, adjudication of the validity of the Commissioner's ruling on residential placements would be "significantly enhanced by the details of a particular case." Id. We think the Riley court's reasoning has application here. From the material appended to the parties' affidavits, it appears that at the end of the 1975-1976 academic year, which plaintiff had passed at an approved school in New York City, plaintiff's educational needs were reassessed and determined to require placement in a different school. The Port Jefferson school district committee on the handicapped recommended that plaintiff be placed at Trinity-Pawling in May 1976. In recognition that the school was not approved by the Commissioner for special placements, legal opinion was sought on behalf of the school board as to whether the board could contract to place a student at an unapproved private school, and who would bear the cost. The response of counsel for the State Education Department in two letters dated June 9, 1976 and June 17, 1976, was that the board of education could not contract with an unapproved school for the placement. The record does not show that plaintiff's parents undertook further proceedings before the committee on the handicapped or the board after they were informed that their son could not be placed at Trinity-Pawling at public expense. In September 1976 plaintiff began attending school at Trinity-Pawling. In October 1976 the Port Jefferson board of education, through Dr. Joseph Ennis, director of Guidance and Pupil Personnel Services at a Port Jefferson high school, renewed its attempts to gain approval for plaintiff's placement at Trinity-Pawling. This correspondence culminated in a January 1977 application for approval, which was rejected by a February 1977 letter from State Education Department counsel reaffirming that a board of education did not have authority to contract with an unapproved school. Thereafter plaintiff instituted an Article 78 proceeding challenging the Commissioner's refusal to approve the contract. The lower court's dismissal of the petition was affirmed, Lombardi v. Nyquist, 63 A.D.2d 1058, 406 N.Y.S.2d 148 (3d Dept.), leave to appeal denied, 45 N.Y.2d 710, 409 N.Y.S.2d 1029, 381 N.E.2d 616 (1978). Although we recognize that plaintiff has already expended much effort in seeking to establish his rights, the course of action he has pursued does not satisfy the exhaustion of remedies that the Education for the Handicapped Act requires. Essentially this lawsuit challenges the lawfulness of the Commissioner's interpretation of New York law to prohibit contracting for the placement of handicapped children in a school that is not on the approved list, even though only that school assertedly has the program that the local board of education believes is appropriate for one of its pupils. Plainly, one of the central, and contested issues of fact in the controversy is whether Trinity-Pawling was the only educational placement appropriate to meet plaintiff's special education needs. That determination should have been made after ample investigation and a hearing, either before the committee on the handicapped or the board of education. As plaintiff's papers indicate, the reason this was not done, despite the advice of State Education Department counsel to seek alternative placements, was that initially plaintiff's parents and the responsible board of education members were of the same mind as to where plaintiff should have been placed. But once the Commissioner's interpretation of the law had frustrated these plans, it became the board's duty to place plaintiff in accordance with the law. On their part, plaintiff's parents were free to challenge the board's determination, and insist on Trinity-Pawling, through the due process 872 hearings and Commissioner's review accorded them by N.Y.Educ. Law § 4404. In this case we believe that, as was true in Riley v. Ambach, supra, the ultimate adjudication concerning the validity of the Commissioner's challenged action would have been "significantly enhanced by the details of the particular case." Slip op. at 3129. Indeed, close scrutiny of the parties' papers suggests that a more closely controverted administrative process might have uncovered a school with a suitable program. Although it may not have been plaintiff's preference, it might have seemed appropriate upon reflection. Notwithstanding our determination that his suit may not be heard until the administrative proceedings are exhausted, we believe it proper to address briefly some of defendant's contentions, since we conclude that they would foreclose suit in this court if plaintiff elected to pursue the administrative remedy and renew his action if still dissatisfied. First, plaintiff's claim for injunctive relief is now moot. Plaintiff's father's affidavit supporting the motion for summary judgment acknowledges that when "the local high school developed an appropriate program suitable" to plaintiff's needs, "he commenced attendance in that program, from January 1979 to the present time." The existence of an admittedly "appropriate" program in plaintiff's local school very plainly renders nugatory plaintiff's request for declaratory and injunctive relief as to the future application of the Commissioner's interpretation, since he is no longer harmed by it. Furthermore, as to the period from September 1976 through December 1978, when plaintiff attended Trinity-Pawling at his parents' expense without reimbursement from the State, we find his claim for reimbursement for that period barred in this court by the eleventh amendment's declaration that "[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State." See Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974); Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504, 33 L. Ed. 842 (1890). Plaintiff has offered no meaningful distinction between the present case and Edelman v. Jordan, which similarly sought reimbursement from a State of federal moneys allegedly wrongfully withheld. We note that here, as in Edelman, the reimbursement plaintiff seeks "will obviously not be paid out of the pocket" of named defendant Ambach, but "must inevitably come from the general revenues" of New York. 415 U.S. at 664, 665-66, 94 S.Ct. at 1356-57. As to plaintiff's attempt to avoid the eleventh amendment bar by arguing that the funds New York received pursuant to the Education for the Handicapped Act are required not to be commingled, see 20 U.S.C. § 1413(a)(9), we think this argument "neglects the fact that where the State has a definable allocation to be used in the payment of public aid benefits, and pursues a certain course of action such as [committing funds for payment of contract services provided by approved schools only] the subsequent ordering by a federal court of retroactive payments ... will invariably mean there is less money available for the continuing obligations of the public aid system." Edelman v. Jordan, 415 U.S. at 666 n.11, 94 S.Ct. at 1357 n.11. Finally, as to plaintiff's remaining request for a declaratory judgment that the Commissioner's action between 1976 and 1978 was unlawful, we note that a "`declaratory judgment, like other forms of equitable relief, should be granted only as a matter of judicial discretion, exercised in the public interest.' Eccles v. Peoples Bank, 333 U.S. 426, 431 [, 68 S. Ct. 641, 644, 92 L. Ed. 784] (1948)." Hospital Association of New York State, Inc. v. Toia, 577 F.2d 790, 798 (2d Cir. 1978). The only purpose we can discern in proceeding to consider the request for declaratory relief is that a judgment in plaintiff's favor might facilitate his claim for monetary relief in the State 873 courts. We do not think that would be an appropriate exercise of federal judicial resources. See id. Accordingly, plaintiff's motion for summary judgment is denied and defendant's motion to dismiss is granted. SO ORDERED. The Clerk of the Court is directed to enter judgment for defendant. The Clerk is further directed to forward copies of this memorandum and order to counsel for the parties. NOTES [1] The complaint also requested a determination that the action be permitted to proceed as a class action, Rule 23, F.R.Civ.P. By memorandum order dated May 5, 1980, the Court denied plaintiff's motion for an order of class determination.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519072/	806 S.W.2d 904 (1991) John MARSHALL, Individually and d/b/a The Copper Penny, Appellant, v. TELECOMMUNICATIONS SPECIALISTS, INC., Appellee. No. 01-90-00129-CV. Court of Appeals of Texas, Houston (1st Dist.). March 21, 1991. 905 John K. Grubb, Houston, for appellant. John M. McDermott, Houston, for appellee. Before DUNN, SAM BASS and MIRABAL, JJ. OPINION DUNN, Justice. Appellee, Telecommunications Specialists, Inc., sued appellant, John Marshall, individually and d/b/a The Copper Penny, for anticipatory breach of a lease agreement for telephone equipment. After trial to the court, the court entered judgment in favor of appellee in the amount of $18,051.98. The trial court filed no findings of fact or conclusions of law. Appellant appeals the judgment. On October 28,1985, appellant and appellee entered into a written rental agreement, which, as later modified, provided appellant would lease from appellee certain telephone equipment for a period of 63 months commencing November 15, 1985. Later, appellant stopped making payments under the agreement, and appellee repossessed some of the equipment. 906 At trial, appellee sought to hold appellant liable for the present value of the unpaid rentals, less the reasonable value of rerenting the equipment. In his first point of error, appellant contends that the trial court erred in allowing appellee's witness to testify to the present value of the unpaid rentals under the lease because such testimony was hearsay based on a document not admitted into evidence. During her testimony, Mildred Davidson, appellee's collection department supervisor, referred to a document marked as exhibit four, but the document was never admitted into evidence. Davidson testified that the document reflected the calculation of the present value of the unpaid rentals on the equipment. She did not prepare the figures on the document. When appellee's counsel asked Davidson what the present value of the unpaid rentals on the equipment was, appellant's counsel objected. Appellant's counsel took Davidson on voir dire and established: (1) Davidson could calculate the present value of the rentals; (2) She needed figures contained on the document to do the calculation; and (3) She had no personal knowledge, independent of the document, of the amount of money appellant owed appellee. Appellant's counsel reurged his objection to the testimony as based on a document not admitted in evidence, which contained hearsay based upon hearsay, and of which she had no personal knowledge. The court overruled the objection. Davidson testified that the present value of the rentals was $18,051.98. However, on cross-examination, she admitted she could not tell the present value without looking at the document, nor could she determine what factors were used in calculating the present value. Davidson admitted she did not know what capitalization rate was used to determine the present value, but the rate used was the interest rate used at the time of the rental agreement. Davidson testified by reading from a document. The document was a statement made by someone other than Davidson repeated by her while testifying at trial, offered in evidence to prove the truth of the matter asserted. The testimony was clearly hearsay. Tex.R.Civ.Evid. 801(d). Appellee did not attempt to introduce the document under the business records exception to the hearsay rule. We hold the trial court erred in overruling appellant's objection and permitting Davidson to testify to the present value of the unpaid rentals from the document not introduced in evidence. We conclude this error was harmful. Davidson's testimony concerning the present value is exactly the amount of the judgment. Undoubtedly this testimony was the evidence the trial court used to determine the amount of the judgment. Thus, the trial court's error in admitting the testimony was harmful. See Tex.R. App.P. 81(b)(1) (no judgment shall be reversed on appeal unless the appellate court finds the error committed by the trial court was reasonably calculated to cause and probably did cause rendition of an improper judgment). We sustain appellant's first point of error. In his second point of error, appellant contends that the trial court erred in entering judgment for appellee in the amount of $18,051.98 because no evidence supported appellee's damages. In the absence of findings of fact or conclusions of law, an appellate court presumes the trial court made all necessary findings to support the judgment. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989); In re Estate of Johnson, 781 S.W.2d 390, 391 (Tex.App.Houston [1st Dist] 1989, writ denied). Implied findings of fact may be challenged by "no evidence" points just as jury findings and a trial court's 907 findings of fact may be. Roberson, 768 S.W.2d at 281. In determining whether there is any evidence to support the judgment and the implied findings of fact, an appellate court can only consider the evidence that is favorable to the judgment and must disregard all evidence to the contrary. Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982). If there is any evidence of probative force to support the finding, the appellate court must uphold it. Sherman v. First Nat'l Bank, 760 S.W.2d 240, 242 (Tex.1988); Glockzin v. Rhea, 760 S.W.2d 665, 666 (Tex.App.Houston [1st Dist.] 1988, writ denied). The case was tried on the theory of anticipatory breach of the lease. Under this theory, appellee was required to prove the present value of the remaining rentals under the lease contract, reduced by the reasonable value of re-renting the equipment. See Crabtree v. Southmark Commercial Management, 704 S.W.2d 478, 480 (Tex. App.Houston [14th Dist.] 1986, writ refd n.r.e.) (landlord, who treated tenant's conduct as anticipatory breach, was limited to recover damages in the amount of the present value of the rentals that accrue under the lease reduced by the reasonable cash market value of the lease for the unexpired term); Speedee Mart, Inc. v. Stovall, 664 S.W.2d 174, 177 (Tex.App. Amarillo 1983, no writ) (landlord, who treated tenant's conduct as anticipatory breach, can recover contractual rental reduced by amount received from new tenant). The absence of evidence to prove an element of a party's cause of action is fatal to the right of recovery, and the court should render judgment against that party. Amarillo Nat'l Bank v. Terry, 658 S.W.2d 702, 705 (Tex.App.Amarillo 1983, no writ). To determine the present value of the remaining rentals, the trial court must be presented with evidence of the remaining rentals. The rental agreement was introduced into evidence; it established that payments of $458.80 per month were due for 63 months commencing on November 15, 1985. However, the evidence must also establish the date of the breach, or the date appellant stopped making rental payments. Davidson testified, while on voir dire, concerning the number of payments appellant made under the rental agreement. She testified by reading from the document marked exhibit four. She admitted she had no personal knowledge of the number of payments made by appellant: Question: All right. Now you [Davidson] have no personal knowledge of the amount of money that Mr. Marshall [appellant] owes your company, do you? You don't have personal knowledge of how many payments he actually sent in, do you? Answer: No. I would haveWell, yes. Here it is here. He made eight payments. Question: I'm talking about personal knowledge, not what you see on that document, but your personal knowledge. Answer: Well, no, not my personal knowledge. (Emphasis added.) While Davidson stated that appellant made eight payments, she admitted that she had no personal knowledge and only testified by reading from a document not admitted in evidence. Since we held above that Davidson's testimony was timely objected to hearsay, we are prohibited from considering it as evidence to support the trial court's judgment of $18,051.98. See Cottle v. Knapper, 571 S.W.2d 59, 62 (Tex.Civ.AppTyler 1978, no writ) (inadmissible testimony should not be considered on appeal in determining the sufficiency of the evidence); Texas Dep't of Pub. Safety v. Nesmith, 559 S.W.2d 443, 447 (Tex.Civ.App.Corpus Christi 1977, no writ) (incompetent evidence, although admitted at trial, should not be considered on appeal as having any probative value). No other evidence was introduced concerning the number of payments appellant made under the agreement or the date appellant breached the agreement. 908 Appellee contends that the trial court could take judicial notice of the date of the trial and find that appellant had stopped making payments on that date. Trial was held on October 9, 1989; thus, 16 payments were still due under the lease. Using the date of trial as the date of the breach, the amount of the payments due under the agreement was $7,340.80. Obviously, the trial court's judgment of $18,051.98 was not based on this evidence. We find the trial court did not find the date of the trial was the date of appellant's breach. During his deposition, which was read into evidence, appellant admitted he had stopped making payments under the agreement. The entire deposition was not admitted into evidence. Specifically, the date of the deposition was not in evidence. Thus, the trial court could not rely on the date of the deposition as the date of the breach. Appellee contends that the trial court could have determined that the agreement was breached on the day its petition was filed, June 26, 1987. However, the petition was not admitted in evidence. Pleadings are not proof. In addition, no other evidence established that the agreement was breached on June 26, 1987. Hence, the trial court could not have determined the date the petition was filed was the date of the breach. The dissent asserts that proof of the date of the breach was excused because the parties stipulated to the date, and, as a result, the trial court could take judicial notice of the date alleged in appellee's petition, October 1, 1987. The dissent reasons that the trial court could have determined that the date of the breach was October 1, 1987, as set out in the petition. Thus, there was some evidence to support the trial court's judgment. However, while appellant's counsel did state that he would agree to whatever date appellee's counsel stated the breach occurred, appellee's counsel never asserted any date. Thus, there was no stipulation. See Mann v. Fender, 587 S.W.2d 188, 202 (Tex.Civ.App.Waco 1979, writ ref'd n.r.e.) (if a trial stipulation is uncertain in its terms, trial court should disregard it); Jackson v. Lewis, 554 S.W.2d 21, 24 (Tex. Civ.App.Amarillo 1977, no writ) (a stipulation, which is ambiguous, may not be given any effect). In the absence of a complete stipulation between the parties concerning the date of the breach, appellee was required to introduce evidence at trial establishing the date. Appellee failed to introduce such evidence or to enter a complete stipulation establishing the date of the breach. Since no evidence established the date of appellant's breach of the rental agreement or the number of payments appellant had made under the agreement, no evidence established the amount of rent due under the agreement, and no evidence established the amount of appellee's damages. Therefore, we find no evidence supported the trial court's judgment. We sustain appellant's second point of error. Due to the disposition of appellant's first and second points of error, we do not address his other points of error. We reverse the judgment and render a take nothing judgment for appellee. MIRABAL, Justice, dissenting. I respectfully dissent. The majority opinion sustains appellant's second point of error on the basis that there is no probative evidence concerning "the number of payments appellant made under the agreement or the date appellant breached the agreement." I respectfully submit that it was not necessary for appellee to prove the date of default because both parties, at the beginning of the trial, stipulated there were no issues of fact as to the fact of default or the date of the breach. Before the first witness was sworn, the following transpired: THE COURT: Okay. I asked what the controverted issues of fact are. Is there a controversy over the date of the default? 909 [APPELLEE'S COUNSEL]: No, Your Honor, there's no controversy. There's no controversy over the date that he quit paying rentals. .... [APPELLANT'S COUNSEL]: I think, Your Honor, to clarify things there's no doubt the lease was executed. There's no doubt a default occurred. I do not have the date of the default. Whatever date the counsel represents to the Court I'm willing to accept that. Then we get into what occurred after the default as far as the equipment, the value of the equipment, where it's located, how much it was sold for. Those I think are the contested issues of facts and then from that fits obviously the Court's decision as to the applicable law. Appellant's counsel specifically conceded that the date of default was whatever date appellee said it was. The parties agreed that was not a contested matter. In its original petition, appellee stated: "Defendant has failed to pay the monthly rental payments when due. Rental payments have been due since October 15, 1986." As a result of the stipulation that there was no issue of fact as to the date of default, appellee's statement in its original petition as to the date of default is to be taken as true. A trial court can properly take judicial notice of pleadings in a case. Johnson v. Coca-Cola Co., 727 S.W.2d 756, 759 (Tex.App.Dallas 1987, writ ref'd n.r. e.); Texas Sec. Corp. v. Peters, 463 S.W.2d 263, 265 (Tex.Civ.AppFort Worth 1971, no writ). The pleadings themselves are not evidence, but a stipulation of the parties that certain allegations are true and uncontested obviates the need for evidence as to the matters conceded to by the defendant. The rental agreement provided for payments of $458.80 per month, plus taxes, for 63 months commencing on November 15, 1985. The date of default was October 15, 1986. Therefore, 52 months remained on the rental agreement after default, and at a rental rate of $458.80 per month, a total of $23,857.60 would have been paid by appellant if there had been no default and payments were made through the end of the lease term. The case was tried on the theory of anticipatory breach of the lease. Under this theory, appellee had to prove the present value of the remaining rental obligations that would have accrued under the lease contract, reduced by the reasonable market value of the unexpired term of the lease. Crabtree v. Southmark Commercial Management, 704 S.W.2d 478, 480 (Tex. App.Houston [14th Dist.] 1986, writ ref'd n.r.e.); Speedee Mart, Inc. v. Stovall, 664 S.W.2d 174, 177 (Tex.App.Amarillo 1983, no writ). When the factfinder is provided with the sum total of the remaining rental obligations, it is within its prerogative to determine the present value of the future damages. In Texas, specific evidence of the present value discount rate is not required. Missouri R.R. v. Kimbrell, 160 Tex. 542, 547, 334 S.W.2d 283, 286 (1960); Taylor Publishing Co. v. Systems Mktg., Inc., 686 S.W.2d 213, 217 (Tex.App.Dallas 1984, writ ref'd n.r.e.). With regard to the last element of appellee's measure of damages, i.e., "the reasonable market value of the unexpired term of the lease," appellee's witness testified as follows: Question: If some TIE Ultracom 1236 equipment in used fashion was picked up since 1985, what is the likelihood that, say, 20 or so of those used TIE Ultracom 1236 telephones, what is the likelihood that any of them would have been rerented? Answer: Very, very small, very, very small. Question: What is the likelihood that they will be rerented by October of 1990? Answer: There again, very small. Question: Would you say almost none? Answer: Practically nil. Question: Is the TIE Ultracom 1236 telephone currently being rented out as new equipment by TSI? Answer: No, sir. From this evidence, the trial court could have concluded that the unexpired term of 910 the phone equipment lease had little or no reasonable market value. In my opinion, the trial court had before it sufficient evidence on all the essential elements of appellee's claim for damages to support its judgment in the amount of $18,051.98. This is true, even disregarding the testimony of Mildred Davidson, which was complained about in appellant's first point of error. Because I conclude the error, if any, in admitting Davidson's testimony was harmless, due to other sufficient, independent evidence to support the judgment, I would overrule appellant's point of error one. Because I believe the evidence is both legally and factually sufficient to support the trial court's judgment, I would overrule points of error two and three. In point of error four, appellant asserts the trial court erred in entering the judgment in its present form because the judgment does not name against whom the judgment is recoverable. The judgment simply states that Plaintiff is "granted judgment in the amount of" $18,051.98. There is only one plaintiff and one defendant in this case. If the identity of a party can be established from the caption, records, pleadings, and process in the case, the failure to name the party in the body of the judgment may be disregarded. Gomez v. Bryant, 750 S.W.2d 810, 811 (Tex.App. El Paso 1988, no writ); see also Schaeffer Homes, Inc v. Esterak, 792 S.W.2d 567, 569 (Tex.App.Dallas 1990, no writ); Crystal City Indep. School Dist. v. Wagner, 605 S.W.2d 743, 745 (Tex.Civ.App.San Antonio 1980, writ ref'd n.r.e.). Appellee sought judgment in its pleadings against appellant; appellant was served and answered; and appellant appeared at trial to defend the case. Appellant was the only one appellee could have been granted a judgment against. I would overrule point of error four. I would affirm the judgment.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519070/	100 N.J. Super. 434 (1968) 242 A.2d 386 ALPHONSE NESTA, PLAINTIFF-APPELLANT, v. ARNOLD MEYER, DEFENDANT-RESPONDENT. Superior Court of New Jersey, Appellate Division. Argued March 11, 1968. Decided April 22, 1968. 439 Before Judges CONFORD, COLLESTER and LABRECQUE. Mr. John F. Russo argued the cause for appellant. 440 Mr. Vincent D. Enright, Jr. argued the cause for respondent (Messrs. Harth & Enright, attorneys). The opinion of the court was delivered by LABRECQUE, J.A.D. Plaintiff Alphonse Nesta appeals from a judgment for defendant following an adverse jury verdict, and from denial of his motion for a new trial. Plaintiff sued for personal injuries arising out of an automobile collision which occurred at the intersection of Route 35 and First Street, Ortley Beach, Ocean County. At the point of the accident Route 35 is a divided highway consisting of two northbound and two southbound lanes (the northbound section is one block to the east of the southbound section). Plaintiff had been following defendant as they were proceeding in a southerly direction in the right-hand lane. He pulled out to pass defendant when he was about 200 feet (one block) from First Street. While plaintiff was in the passing lane defendant attempted a left-hand turn into First Street from the right-hand lane. In doing so he collided with plaintiff with resultant personal injuries to the latter. The speed limit was 35 miles per hour and there was a sign 75 feet from the point of impact directing traffic to keep right execpt while passing. Plaintiff testified that defendant had been proceeding slowly; he pulled out intending to pass defendant but then changed his mind; he himself was traveling only about 25 miles an hour and the two cars had been moving alongside one another for about 50 feet before the crash. Defendant's version was that he had observed plaintiff approaching from the rear when he was about a block from the intersection. In preparing to make a left-hand turn he had put on his left turn signal "a block back at least" and when about 150 feet from the intersection had applied his brakes. He had reduced his speed to at about five miles an hour when he turned left from the right lane. Plaintiff denied seeing the left turn signal at any time. 441 The accident was investigated by Officer Chafatelli of the local police who related that he found 15 feet of skid marks made by plaintiff's automobile prior to the point of impact and 35 to 45 feet of skid marks (which were somewhat lighter in color) beyond it. He was unable to state the length of the break between the two sets of skid marks but testified that they were all in the left (passing) lane. Defendant testified that about half an hour after the accident he and another person returned to the scene with a 100-foot tape and found that the skid marks measured 145 feet in length. There was no attempt to reconcile the difference between the two measurements although the break described by Chafatelli may have accounted for part of it. The jury returned a verdict of no cause for action by a 10 to 2 vote. The trial judge denied plaintiff's motion for a new trial and the present appeal followed. Plaintiff's first point is two-pronged: that it was error to exclude "expert" testimony by Chafatelli as to plaintiff's speed, based upon the skid marks made by plaintiff's car, and error to allow testimony as to the presence of such skid marks in the absence of expert testimony as to their significance. We find neither contention to be meritorious. In determining whether the conduct of the respective drivers comported with reasonable care under the circumstances presented at the time of the accident in question, it was proper to submit to the jury evidence as to the skid marks left by their vehicles. These were relevant not only as to speed but as to the location and direction of the vehicles and the reactions of the drivers to the situation which presented itself. Cf. Tischler v. Steinholtz, 99 N.J.L. 149 (E. & A. 1923); DiNizio v. Burzynski, 81 N.J. Super. 267, 272 (App. Div. 1963). Where speed is in issue, the distance required to bring a vehicle to a stop, the skid marks left in connection therewith and the final position of the car, are significant elements. Cf. State v. Kellow, 136 N.J.L. 1, 5 (Sup. Ct. 1947), affirmed 136 N.J.L. 633 (E. & A. 1948). Expert 442 testimony is not a prerequisite to the admission of such testimony. Plaintiff argues that Officer Chafatelli was qualified as an expert to determine speed based upon skid marks and that it was error to decline to permit him to testify as to plaintiff's speed from the skid marks. We disagree. In general, expert testimony is admissible where the witness offered has peculiar knowledge or experience not common to the world which renders his opinion founded on such knowledge or experience an aid to the court or jury in determining the question at issue. Rempfer v. Deerfield Packing Corp., 4 N.J. 135, 141-42 (1950). In DiNizio v. Burzynski, supra, 81 N.J. Super. pp. 272-274, cited by plaintiff, we held that, where the speed of the vehicle was in issue, opinion evidence from a qualified expert, in reply to a hypothetical question which included the facts in the case concerning the course, length and nature of skid marks left by the vehicle, was properly admitted. In that case the expert witness was a traffic engineer, Director of the Department of Safety and Traffic of the New Jersey Automobile Club and had a long history of training and teaching in the fields of driver education, traffic safety and accident prevention. Here the police officer was not an engineer and had had no special training in assessing the speed of vehicles from skid marks or other indicia at the scene. It is a matter of common knowledge that skid marks may be affected not only by the speed at which a vehicle is being driven, but by the condition of the surface of the highway, the type of tread and degree of wear of the tires, the weight of the vehicle, the condition of the brakes and the manner in which they are applied. Within the discretion allocated to trial courts in matters of this type, we find no mistaken exercise of discretion in the exclusion of the proffered testimony. Further, assuming that the testimony was improperly excluded, we are satisfied that plaintiff suffered no prejudice. R.R. 1:5-3(b); cf. DiNizio v. Burzynski, supra, at pp. 274-275. While the offer of proof did not go so far 443 as to state what the officer's estimate of plaintiff's speed would have been had he been permitted to testify, it is entirely reasonable to conclude that had he been permitted to do so his opinion would not have been helpful to plaintiff. He testified in response to a question as to the knowledge he had acquired when attending the Police Academy that "for instance, if there was [sic] 50-60 feet of skidmarks, the car was [going] well over 85 miles an hour." Plaintiff next contends that the trial judge erred "in not illustrating and defining to the jury the effect of speed with regard to proximate cause and in refusing to charge plaintiff's request[s] concerning the same." Since there was no objection to the charge, R.R. 4:52-1, such a contention on plaintiff's part would ordinarily be cognizable only as plain error. R.R. 1:5-3(c). Plaintiff urges, however, that since his contention under this point was raised in timely requests to charge, he was not required to again object to the failure to charge them. We disagree. It was held to the contrary in In re Parking Authority of City of Hackensack, 30 N.J. Super. 534, 543 (App. Div. 1954). Further, at the conclusion of the charge counsel for plaintiff was addressed directly by the court as to whether he was objecting to the charge as given and stated in reply, "I have no objections." Later, after the jury had been recharged in response to a juror's question bearing on whether speed of itself would constitute contributory negligence, the court again inquired of counsel, "do you have anything to add?" to which counsel for plaintiff replied, "I think your Honor covered it." See Keiffer v. Food Products Trucking Co., 73 N.J. Super. 285, 305 (App. Div. 1962), certification denied 37 N.J. 524 (1962). Thus his two affirmative representations to the court that he was satisfied with the charge as given amounted to much more than mere omission to object. See Lippman v. Ostrum, 22 N.J. 14, 26 (1956). The fact that a party has submitted a timely request to charge, does not ordinarily dispense with the obligation imposed by R.R. 4:52-1 to object to the trial judge's 444 omission to so charge. When counsel conceives that a portion of the charge as given is inadequate or inconclusive especially upon specific inquiry by the judge upon a subject close to or identical with matters involved in the request to charge it becomes his duty to alert the court in clear language to the claimed inadequacy or error, stating his grounds therefore. Here counsel, on inquiry, did exactly the opposite. We are satisfied and hold that the point raised may be considered only as plain error and we proceed to its consideration on that basis. Specifically, plaintiff argues that the trial judge should have charged two of his requests bearing on contributory negligence (they are not contained in the appendix) the pertinent portions of which are alleged to have been as follows: "There has also been testimony introduced in this matter regarding the question of speed of the plaintiff's vehicle. I charge you in evaluating this question of contributory negligence that contributory negligence is conduct on the part of the plaintiff that involved an unreasonable risk of harm to him and contributes as a legal cause to his injury. But, in order to bar recovery, the unreasonableness of the plaintiff's conduct must have been in its tendency to expose him to the particular risk from which his injury resulted. Thus, a person injured by one means is not denied recovery for his failure to guard himself against potential harm from another entirely unrelated means. * * * * * * * * * * * that if you find that Alphonso Nesta was negligent but that such negligence simply presents the condition under which the injuries were received but was not a contributory cause thereof, then such negligence would not be considered a proximate cause of the plaintiff's own injuries. Thus, in order to bar recovery by the plaintiff for the injuries sustained the defendant must prove by a preponderance of the evidence that the plaintiff was negligent and must further prove by a preponderance of the evidence that the plaintiff's negligence proximately, that is directly, contributed to the happening of the accident and the resulting injuries." It would have been appropriate had the jury been charged as requested. The fact that a plaintiff has failed to exercise reasonable care for his own safety does not bar his recovery unless his harm has resulted from one 445 of the hazards which makes his conduct negligent. Restatement, Torts § 468, p. 516 (2d ed. 1965). As is stated in the comment which follows the above section: "When the harm to the plaintiff does not result from the only hazard which his conduct has created, or from one of the group of hazards which go to make up the total risk to which his conduct has exposed him, but results in some other manner, his contributory negligence does not bar his recovery. Thus one whose negligent conduct in crossing a street without looking out for vehicles has subjected him to the risk of being run down by a car is not barred from recovery where, as a result of that conduct, he is unforeseeably injured by an explosion of dynamite carried in a truck which collides with an automobile." By clear analogy, where an automobile is struck by a tree which falls across the highway, the driver is not to be held guilty of contributory negligence because his presence there at the time the tree fell was occasioned by the fact that prior thereto he had exceeded the speed limit. Prosser, Torts § 64, pp. 431-432 (3d ed. 1964). In such case the fall of the tree would be an unexpected and fortuitous occurrence which had no relation to the necessity that the driver proceed at a reasonable speed. Cf. Stoelting v. Hauck, 32 N.J. 87, 101 (1960). In considering whether the omission to charge as requested calls for reversal under the plain error rule we note that this alleged deficiency has not been briefed by plaintiff as plain error nor has plain error been included as an issue in the Statement of Questions Involved in his brief as required by R.R. 1:7-1(c). Brodzinski v. Pulek, 75 N.J. Super. 40, 44 (App. Div. 1962), certification denied, Brodzinski v. Pulek, 38 N.J. 304 (1962). Ordinarily, no point will be considered which is not set forth or necessarily suggested in the Statement of Questions Involved. Aiello v. Myzie, 88 N.J. Super. 187, 193 (App. Div. 1965), certification denied 45 N.J. 594 (1965). However, we have considered the issue and find it to be without merit. 446 We have noted above that, notwithstanding the failure of the court to charge as requested, plaintiff's counsel, at the conclusion of the charge as delivered, and again at the conclusion of the supplementary charge on proximate cause given in response to a juror's question, affirmatively expressed satisfaction with the charge. He did so even though he knew at the time that it did not contain the essence of the formal requests whose omission he now argues was error. We incline to the view that the sound administration of justice does not permit a litigant to avoid the effects of such conduct under cover of the plain error rule. Relief under the plain error rule is to be sparingly granted. Ford v. Reichert, 23 N.J. 429, 435 (1957). The purpose of the rule requiring objection to the charge is to alert the trial judge to the asserted error and thus afford him an opportunity of correcting it before the jury retires to deliberate. Gluckauf v. Pine Lake Beach Club, Inc., 78 N.J. Super. 8, 18 (App. Div. 1963). Frequently, for reasons of trial strategy or otherwise, experienced counsel elects to overlook an omission or inadvertence on the part of the trial judge. In such case an inference of passive indifference, if not acquiescence, may be drawn. Cf. Priest v. Poleshuck, 15 N.J. 557, 564 (1954); Valls v. Paramus Bathing Beach, Inc., 46 N.J. Super. 353, 357 (App. Div. 1957). But counsel may not be permitted to overlook alleged error in the charge as given to gamble on a favorable verdict and, upon the coming in of an adverse one, seek a "second bite of the apple" on the basis of plain error. Cf. Lippman v. Ostrum, supra, 22 N.J., at p. 26. Here we are satisfied and hold that counsel's affirmative expressions of satisfaction with the charge as given so strongly bespoke acquiescence as to lead us to the conclusion that denial of the relief sought on the basis of plain error would not be inconsistent with substantial justice. R.R. 1:5-3(c). Plaintiff next urges that it was error to permit defense counsel to question him with regard to skid marks at the scene other than those made by the respective vehicles. 447 During plaintiff's cross-examination he was asked whether he found other skid marks and replied in the affirmative. He was then cross-examined without objection until he was asked to describe their length. Plaintiff then objected but the question was allowed for the purpose of affecting his credibility by demonstrating that his testimony at the trial varied from that given in his prior deposition. The trial judge is vested with considerable discretion in determining the extent to which cross-examination may be permitted. We do not find that it was mistakenly exercised here and, in any event, plaintiff could have suffered no prejudice thereby, R.R. 1:5-3(b), since the trial judge made it clear that the marks were unconnected with the accident. Plaintiff next complains that it was error "to permit the defendant to testify with regard to the out-of-court statement of a witness and * * to refuse to allow the plaintiff to introduce a statement concerning the same." We find this point to be without merit. The trial judge did not "permit" defendant to so testify. In his direct examination defendant had testified that he and a friend named Baker had returned to the scene of the accident one-half hour after its occurrence, and had found that the skid marks left by plaintiff's car measured 145 feet in length. Baker was not produced, defendant testifying that upon endeavoring to reach him he found that he had gone to Boston. During the course of his cross-examination the following took place: "Q. You don't know this yourself? A. What is that? Q. That Mr. Baker went to see his children in Boston? A. Oh, he's there, he's gone. Q. Well, somebody told you that? A. Yes. Q. Have you made any attempts to go to his house and subpoena him to come here to Court in this trial, or anyone on your behalf? A. I was over his home on Thursday morning, the day of the trial, when we were to appear here, and explained to him that he 448 probably would be needed in Court and he told me then that someone had come to his house with a statement to sign, stating that the skidmarks were 145 feet, that he was at the scene of the accident after it happened, and they asked him to sign this affidavit, or whatever it was, and he was told that he wouldn't have to bother to appear." Most of the final answer was clearly not responsive and could have been, but was not made the subject of a motion to strike by counsel for the plaintiff. Instead, he elected to let the answer stand and sought to utilize it as a basis for the introduction of an alleged statement (referred to as having been signed by Baker) which he produced and asked Meyer to examine to see if there was any reference in it to 145 feet of skid marks (the inference was that there was not). In the absence of any identification of the statement or proof that it was the one referred to by Baker as related in defendant's hearsay testimony, this procedure was clearly irregular and the trial judge properly sustained defendant's objection to the question. During the colloquy which preceded the ruling counsel for plaintiff repeated the witness' statement in the presence of the jury. Following the ruling there was no motion to strike. There was no error. We further hold that the judgment was not invalidated by receipt of the jury's verdict and the polling of the jury in the absence of plaintiff's counsel. This point is not supported by any factual reference to the appendix. Plaintiff states in his brief that both his and defendant's counsel had left telephone numbers with "the court" where they could be located when the jury was ready to render its verdict, but counsel for plaintiff was "not notified" and the verdict was received when only counsel for defendant was present. In the absence of an allegation that no attempt was made to locate counsel for plaintiff, we assume that such an attempt was made but counsel could not be immediately located. Plaintiff has cited no case which holds that the verdict in a civil case may not be received by the court and 449 the jury polled in the absence of counsel, and we know of none. The general rule is to the contrary where there is no statute or rule which requires counsel's presence. 89 C.J.S. Trial § 489, p. 149 (1955); Henderson v. Zubik, 390 Pa. 521, 136 A.2d 124, 127 (Sup. Ct. 1957). See also Gould v. Magee, 3 N.J.L. 66 (475) (Sup. Ct. 1809). Of course, normal practice contemplates that both counsel be in the courtroom when the jury returns its verdict and counsel should take care to be present without putting the court to trouble or delay in locating him. It is conceded that the verdict was received and the jury polled in open court in the presence of the trial judge, see R.R. 4:40-4, and that plaintiff's counsel entered the courtroom just as the jury was leaving. His objection to such procedure, if any, should have been made to the court at that time. The refusal of the trial judge to permit plaintiff to introduce evidence that defendant had been issued a summons for careless driving was likewise proper. While conceding that ordinarily it would be improper to allow evidence that a party involved in an accident had been issued a traffic summons, plaintiff contends that the evidence was admissible here for the purpose of showing "interest" on the part of defendant. Not so. State v. Cerligione, 133 N.J.L. 424 (Sup. Ct. 1945), affirmed 134 N.J.L. 617 (E. & A. 1946), and State v. Salimone, 19 N.J. Super. 600 (App. Div. 1952), certification denied 10 N.J. 316 (1952), cited by plaintiff in support of this contention, are inapposite. The evidence was properly excluded. Hintz v. Roberts, 98 N.J.L. 768, 771 (E. & A. 1923); Hoffman v. Goldfield, 129 N.J.L. 359, 362 (Sup. Ct. 1943). Plaintiff contends that the trial judge's denial of his motion for a new trial was error. He urges that defendant's negligence was clearly established and that any finding that plaintiff was guilty of contributory negligence was so contrary to the weight of the evidence as to justify the conclusion that it was the product of mistake, passion, partiality or prejudice. The thrust of his argument is that the only 450 possible conclusion from the proofs was that he was free from contributory negligence since he had been guilty of no negligence and, even if he had, the accident would have occurred regardless of it. The trial judge, following the mandate of R.R. 4:61-1 and applying the rule laid down in Kulbacki v. Sobchinsky, 38 N.J. 435, 444 (1962), declined to disturb the verdict. Having observed the witnesses, he was in a better position than we to judge of their credibility. Hartpence v. Grouleff, 15 N.J. 545, 549 (1954). We may disturb his adverse ruling on the motion only if it amounted to a "manifest denial of justice under the law." Our review of the record before us convinces us that it did not. Plaintiff was required to operate his vehicle at such speed and under such control as would a reasonably prudent person, having in mind the traffic conditions ahead. He had been following defendant and when 200 feet from the intersection attempted to pass. His speed in this endeavor could have been found to be related to the failure on his part to observe the turn indicator on defendant's vehicle. Further, the hazards peculiar to speed involve diminished control of the vehicle. 2 Harper & James, the Law of Torts, § 20.5, p. 1148 (1956). Here, the faster he accelerated as he approached the intersection in the act of attempting to pass, the less able he would have been to control his vehicle in the event of any movement of defendant's car to the left, and the more likely the chance of a collision between them. The issue of whether or not his speed (in terms of being too fast for conditions) amounted to contributory negligence was peculiarly for the jury's determination. It could either have found that his speed proximately contributed to the occurrence of the accident, having in mind the aggregate of the hazards he should reasonably have foreseen might result therefrom, or that the movement of defendant's car was such an unexpected event that plaintiff's speed played no part in bringing about the ensuing collision, i.e., the collision would have occurred regardless of the 451 speed at which he was traveling. Cf. Menger v. Laur, 55 N.J.L. 205, 215 (Sup. Ct. 1893). See also Berry v. Sugar Notch Borough, 191 Pa. 345, 43 A. 240 (S.Ct. 1899). Plaintiff's argument presumes that the jury was bound by his testimony that as he was proceeding slowly opposite defendant's car the latter turned left directly into him. But the jury could have determined from the evidence that the relative position of the cars was not as he had testified and that he was traveling much faster than he had admitted. He told Officer Chafatelli at the scene that defendant made a turn into his "path," which would indicate that the cars were not abreast when defendant made his move. Confirmation of this is found in Chafatelli's testimony that the initial skid marks made by plaintiff's car began 15 feet before the point of impact. If allowance is made for reaction time, the jury could have found that plaintiff was aware of defendant's move some time before his wheels began to leave skid marks. He admitted telling Mrs. Meyer immediately after the accident that if he had seen their signal he would have stopped. The jury could have concluded from the proofs that if he had been paying better attention to the signals of the car ahead and driving more slowly, plaintiff would not have sustained the injuries claimed. We find the remaining points raised to be without merit. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519071/	522 F. Supp. 367 (1981) WARRINGTON ASSOCIATES, INC., a Minnesota corporation, Plaintiff, v. REAL-TIME ENGINEERING SYSTEMS, INC., an Illinois corporation, Defendant. No. 80 C 1349. United States District Court, N. D. Illinois, E. D. August 26, 1981. Samuel A. Haubold, Jack A. Rovner of Kirkland & Ellis, Chicago, Ill., for plaintiff. Michael Piontek, Thomas R. Juettner of Gary, Juettner & Pyle, Chicago, Ill., for defendant. MEMORANDUM AND ORDER MORAN, District Judge. Plaintiff, Warrington Associates, Inc. ("Warrington"), a designer and marketer of computer software programs for banks and other financial institutions, has filed this action alleging the wrongful appropriation 368 and use of its trade secrets and proprietary materials by defendant, Real-Time Engineering Systems, Inc. ("Real-Time"). More specifically, in its five-count amended complaint, Warrington alleges that Real-Time, individually and in conspiracy with others, misappropriated Warrington's secret computer software programs (Count I), unlawfully interfered with and conspired to breach contractual assurances of confidentiality owed to Warrington (Counts II and III), infringed Warrington's copyrights (Count IV), and engaged in unfair competition (Count V). Now before the court is what was, initially, Real-Time's motion to dismiss all but the federal copyright claims on the ground that the common law tort counts are preempted by the Copyright Act of 1976, 17 U.S.C. § 101 et seq. Both sides, however, have submitted extensive evidence outside the pleadings, as well as legal memoranda raising additional issues and sounding like post-trial briefs. In light of these submissions, pursuant to Fed.R.Civ.P. 12(b), the motion has been regarded as one for summary judgment. Stripped of their hyperbole, the memoranda raise several discrete issues: (1) whether the common law trade secrets claims are preempted by federal law; (2) if they are not, whether Warrington, by securing copyright protection for its User's Manual, has so extensively disclosed its confidential information so as to forfeit any common law protection for those secrets; and (3) whether Real-Time intended to pirate Warrington's materials. Because the court concludes, first, that the trade secrets claims are not preempted, and second, that genuine material issues of fact remain as to Real-Time's intent to misappropriate as well as the extent to which the information was disclosed without assurances of confidentiality, the motion for summary judgment is denied. A. Legal Issues: Preemption. The scope of federal preemption of state law by the Copyright Act is prescribed by that statute itself. In Section 301(b), the Act provides: Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to * * * * * (3) activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106. An analysis of the interests secured by Copyright and trade secret law makes plain that the claims are not "equivalent" as intended by the Congress. It is well-settled that copyright protection extends not to an idea itself, but rather to the particular expression used by its author. Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corporation, 562 F.2d 1157 (9th Cir. 1977); Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904 (3d Cir. 1975). In contrast, the protection provided by the common law of trade secret misappropriation extends to the very ideas of the author, subject, of course, to the requirement that the idea has some originality and is as yet undisclosed or disclosed only on the basis of confidentiality. Ferroline Corp. v. General Aniline & Film Corp., 207 F.2d 912, 921 (7th Cir. 1953); Wesley-Jensen, Inc. v. Reynolds, 182 U.S.P.Q. 135 (N.D.Ill.1974). The practical distinction between the two interests is manifest. While disclosure of the expression does not vitiate rights secured by copyright law, that same disclosure may well strip the underlying idea of its confidentiality, and thus its status as a trade secret. To a certain degree the two respective rights in intellectual property interact. To the extent a work has been copyrighted and published, the chances of unprivileged disclosure may increase. But the mere fact that an expression is copyrighted does not, in and of itself, disclose the trade secret or eliminate its mantle of confidentiality. In light of the analysis expressed above, it is hardly surprising that neither Congress nor the courts have viewed the federal Copyright Act as preempting the common law of trade secret misappropriation. For example, in the legislative history of the 369 Copyright Act, the House Committee Report states: The evolving common law rights of "privacy," "publicity," and trade secrets, ... would remain unaffected so long as the causes of action contain elements such as an invasion of personal rights or a breach of trust or confidentiality .... H.Rep.No. 94-1476, 94th Cong., 2d Sess. 132 (1976) reprinted in 5 U.S.Code Cong. & Admin.News at 5746-5747 (1976). Both federal and state courts have concurred. In an analogous context, the Supreme Court found nothing incompatible between the law of trade secrets and federal patent statutes. Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 94 S. Ct. 1879, 40 L. Ed. 2d 315 (1974). If anything the congruence and, concomitantly, the likelihood of preemption, between patent and trade secret law is stronger than between trade secret and copyright law. See also, Synercom Technology, Inc. v. University Computing Co., 474 F. Supp. 37 (N.D.Tex.1979); Compumarketing Services Corp. v. Business Envelope Manufacturers, Inc., 342 F. Supp. 776, 777 (N.D.Ill.1972). Finally, whether Wisconsin or Minnesota law is applied,[1] state law provides an area of protection extending beyond copyright. The highest courts of both states have continued to recognize causes of action for trade secret misappropriation subsequent to the amendment of the federal Copyright Act in 1976. The common law of each of these forums stresses that the trade secrets tort is premised on concepts of breach of trust and confidentiality, and not copying. See Eutectic Welding Alloys Corp. v. West, 281 Minn. 13, 160 N.W.2d 566, 570 (1968); Cherne Industrial, Inc. v. Grounds & Associates, Inc., 278 N.W.2d 81 (1979); Instrumentation Services, Inc. v. General Resource Corp., 283 N.W.2d 902 (1979) (unfair competition). See also, Gary Van Zeeland Talent, Inc. v. Sandas, 84 Wis. 2d 202, 267 N.W.2d 242 (1978); Abbott Laboratories v. Norse Chemical Corp., 33 Wis. 2d 445, 147 N.W.2d 529 (1967). Accordingly, the court holds that the Copyright Act does not preempt Warrington's common law tort claims in this action. B. Factual Issues: Disclosure, Access and Intent. As noted above, although the Copyright Act does not preempt Warrington's trade secret claim, the fact that it registered its User's Manual for a copyright might well affect the continued secrecy of the ideas in that manual for which Warrington seeks trade secret protection. However, on the basis of the record before the court, no final determination on this issue can be made at this time. Viewing the evidence favorably to Warrington, deposition testimony permits the inference that Warrington only released the copyrighted manual after receiving assurances of confidentiality from the users. Thus, while Warrington's self-serving declaration that it registered the manual with the Copyright Office as "unpublished" does not, in itself, defeat Real-Time's claim that Warrington's information is in the public domain, the court cannot conclude, as a matter of law, that Warrington's proprietary materials have lost their mantle of confidentiality.[2] 370 Similarly, summary judgment also is premature with respect to other issues raised by Real-Time. For example, even assuming that Real-Time had access only to Warrington's User's Manual (as opposed to the Operations Manual and computer source tapes), the deposition testimony of Richard Mulligan, Real-Time's President, indicates that the information contained in the User's Manual is of such a highly technical nature that pirating of Warrington's trade secrets may have been possible from this source alone. As such, the fact that Real-Time's access to Warrington's materials was restricted is not determinative on summary judgment. Finally, genuine issues of fact remain concerning Real-Time's intent to misappropriate Warrington's trade secrets. Admittedly, Warrington has not yet submitted any direct evidence demonstrating Real-Time's actual knowledge of Warrington's nondisclosure agreements. But such evidence hardly is essential to preclude summary judgment here. Mulligan's deposition testimony reveals that the overwhelming industry practice was to make available software packages upon pledges of confidentiality. Mulligan acknowledged at this deposition that Real-Time had never previously been afforded such extensive access to a competitor's materials when it proposed to develop compatible software programs for prospective clients. With these facts in the record, it is not necessary to accept Warrington's rather strident description of Real-Time's deal with the Kellogg Bank as a "kickback" in order to draw the inference that Real-Time nevertheless had notice of the Bank's confidentiality obligations and intended to disregard them. Accordingly, the motion for summary judgment is premature and is denied. C. Co-Conspirator Claims. There is, however, one point raised in Real-Time's motion that is well-taken. In its complaint, Warrington alleges that Real-Time and Mulligan were co-conspirators in the pirating of Warrington's secrets. Normally, however, a corporation cannot conspire with its own officers. Nelson Radio & Supply Co. v. Motorola, 200 F.2d 911, 914 (5th Cir. 1952). Warrington seeks to avoid the application of this rule by citing the narrow exception created by the Fourth Circuit in Greenville Publishing Co. v. Daily Reflector, Inc., 496 F.2d 391, 399 (4th Cir. 1974). In Greenville Publishing, the court recognized that a conspiracy between a corporate entity and its officer was possible where the officer had an independent stake in the allegedly illegal activity. Apparently citing the Greenville exception has proved far easier for Warrington than providing facts which might support its application. Simply put, Warrington has raised no evidence which suggests that Mulligan's interests anything but complimented those of Real-Time. Indeed, Real-Time appears to be a small corporate entity, and largely the instrumentality for Mulligan's individual efforts. Accordingly, the references concerning Mulligan and Real-Time as co-conspirators in the pleadings will be stricken. NOTES [1] As this is a diversity action, substantive state law governs the common law counts. Concurrently, as an Illinois court, that state's choice of law rules also apply here. Klaxon v. Stentor Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1115 (1941). In this instance, the parties have assumed that Wisconsin law would determine the common law claims. While not rejecting this view, the Court raises the possibility that under Illinois' "most significant relationship" approach to tort claims, Ingersoll v. Klein, 46 Ill. 2d 42, 45, 262 N.E.2d 593 (1970), the law of the state of Minnesota may govern here. A final determination of this issue is not necessary since the result reached herein does not vary with the application of Minnesota or Wisconsin law. [2] Real-Time relies heavily on the fact that Warrington provided the Kellogg Bank with a copy of its Manual prior to the execution of certain confidentiality agreements. This fact alone, however, does not prove that the information was no longer confidential or that Warrington failed to take appropriate precautions against disclosure. The evidence indicates that it was the practice in the computer software industry that no manuals were provided absent assurances of confidentiality. It is quite possible that the Bank was given an advance copy of the Manual only upon the understanding that such information was not to be disclosed and in contemplation of the impending execution of the actual nondisclosure agreements.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519153/	522 F. Supp. 2d 1034 (2007) UNITED STATES of America, Plaintiff, v. Fernando DELATORRE, also known as Judge Ruben Castillo "Fern," "Ferndog," and "Fernwood," Bolivar Benabe, also known as "Jap," Juan Juarez, also known as "Ghost," Julian Salazar, also known as "Mando," "Comrade," "Conrad," "Cuz," and "Cuzzo," Miguel Martinez, also known as "Big Mike" and "Mizzy," Mariano Morales, also known as "Mar," Arturo Barbosa, also known as "Chipmunk," Harold Crowder, also known as "H-Man," Miguel Roderiguez, also known as "Mental" and "Mento," Steven Perez, also known as "Frantic" and "Big Frantic," Brian Hernandez, Lionel Lechuga, Romel Handley, also known as "Romellie," Christian Guzman, also known as "Mousey," Akeem Horton, and Steven Susinka, Defendants. No. 03 CR 90. United States District Court, N.D. Illinois, Eastern Division. November 21, 2007. 1035 1036 1037 Thomas C. Brandstrader, Law Office of Thomas. C. Brandstrader, Susan A. Shatz, Robert G. Clarke, John Thomas Theis, Steven Shobat, Attorney at Law, John M. Beal, Paul Camarena, Chicago, IL, Robert Lee Gevirtz, Gevirtz & Born, Mark Herbert Kusatzky, Attorney at Law, Northfield, IL, Herbert Hill, Attorney at Law, Aurora, IL, William O. Walters, Attorney at Law, Mt. Prospect, IL, for Defendants. Harold Crowder, Chicago, IL, Pro se. Steven Perez, Chicago, IL, Pro se. MEMORANDUM OPINION AND ORDER RUBEN CASTILLO, District Judge. The question presently before the Court comes down to "how many defendants is too many to join in a single criminal trial?" In the Second Superseding Indictment ("Indictment") in this case, the government charged sixteen defendants all allegedly members of the Insane Deuce Nation Street Gang ("Insane Deuces") with violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"), committing various violent crimes in aid of the racketeering activity, and drug trafficking. The government estimates that the trial of this complex criminal case, which is set to begin on February 6, 2008, will last four to five months. After substantial mitigation presentations, which have delayed this case, the government recently announced it will not seek the death penalty against any defendant. One defendant, Akeem Horton, has pled guilty (R. 380), and another defendant, Miguel Martinez, remains a fugitive. Of the remaining fourteen defendants, Romel Handley ("Handley") (IL 151, 503), Steven Perez ("Perez") (R. 161), Miguel Rodriguez ("Rodriguez") (R. 342, 500), Juan Juarez ("Juarez") (R. 367, R. 474), Christian Guzman ("Guzman") (R. 348, 511), Steven Susinka ("Susinka") (R. 403),[1] Julian Salazar ("Salazar") (R. 457, 507), Bolivar Benabe ("Benabe") (R. 485, 513), and Arturo Barbosa ("Barbosa") (R. 509) have filed motions to sever, the trial and/or statements in support of severance. Benabe also filed a separate motion to sever Counts Fourteen and Fifteen, which charge him with various firearms violations. (R. 347, Benabe Mot. to Sever.) Pursuant to this Court's prior order (R. 125), motions filed by one defendant apply to all the defendants and, accordingly, this Court has considered the motions for severance on behalf of all the defendants. While the government opposes severance, the government has submitted a statement setting out its preferred severance arrangement if this Court grants the motions to sever the trial. (R. 461, Gov't Severance Statement.) THE INDICTMENT I. Count One: RICO Conspiracy Count I of the Indictment alleges that each of the fourteen defendants conspired 1038 to violate 18 U.S.C. § 1962(c) through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(d). (R. 227, Indictment, Count One, ¶ 9.) Section 1962(c) makes it "unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." 18 U.S.C. § 1962(c). Section 1962(d) additionally makes it unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section. 18 U.S.C.A. § 1962(d). The Indictment alleges that the defendants agreed that a member of their conspiracy would commit at least two of the following acts of racketeering: murder, attempted murder, solicitation to commit murder, robbery, witness tampering, and multiple narcotics offenses. (Id. ¶¶ 10-11.) Specifically, the Indictment alleges the following acts of racketeering were committed as part of the conspiracy, violation of 18 U.S.C. § 1962(d): On or about January 20, 2002, Juarez, Salazar, Martinez, Perez, Hernandez, and others, known and unknown to the Grand Jury, committed and caused to be committed the attempted murder of a Victim A, in which Perez discharged the firearm which permanently disabled and disfigured Victim A. (Id. ¶ 13.) On or about January 20, 2002, Juarez, Salazar, Martinez, Perez, Hernandez, and others, known and unknown to the Grand Jury, committed and caused to be committed, the attempted murder of a Victim B. Perez discharged the firearm which permanently disabled and disfigured Victim B. (Id. ¶ 14.) On or about February 12, 2002, Delatorre, Juarez, Salazar, Martinez, Crowder, Susinka, and others, known and unknown to the. Grand Jury, committed and caused to be committed, the murder of Robert Perez. Crowder discharged the firearm that killed Perez. (Id. ¶ 15.) On or about August 11, 2002, Delatorre, Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, Guzman, and others, known and unknown to the Grand Jury, committed and caused to be committed, the murder of David Lazcano. Guzman discharged the firearm that killed Lazcano. (Id. ¶ 16.) On or about September 19, 2002, Delatorre, Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, Guzman, Horton, and others, known and unknown to the Grand Jury, committed and caused to be committed, the attempted murder of a Victim C. Guzman discharged the firearm that permanently disabled and disfigured Victim C. (Id. ¶ 17.) On or about September 28, 2002, Delatorre, Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, and others, known and unknown to the Grand Jury, committed and caused to be committed, the attempted murder of Victim D. Co-conspirator A discharged the firearm that permanently disabled and disfigured Victim D. (Id. ¶ 18.) On or about October 16, 2002, Delatorre, Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, Horton, Co-conspirator B, and others, known and unknown to the Grand Jury, committed and caused to be committed, the murder of David Morales. Co-conspirator B discharged the firearm that killed David Morales. (Id. ¶ 19.) On or about November 17, 2002, Delatorre, Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, Co-conspirator B, and others, known and unknown to the Grand Jury, committed and caused to be committed, the murder of Urbel Valdez. 1039 Co-conspirator B discharged the firearm that killed Urbel Valdez. (Id. ¶ 20.) On or about May 11, 2003, Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, Perez, and others, known and unknown to the Grand Jury, committed and caused to be committed, the attempted murder of Victim E. Perez discharged the firearm that permanently disabled and disfigured Victim E. (Id. ¶ 21.) Beginning at least from in or about late 1994, and continuing through at least the date of return of the Indictment, Delatorre, Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, Rodriguez, Susinka, Hernandez, Lechuga, Horton, and others, known and unknown to the Grand Jury, conspired to knowingly and intentionally distribute and possess with intent to distribute controlled substances. (Id. ¶ 22.) II. Substantive RICO Violations A. Count Two: Murder of David Lazcano In Count II, the Indictment alleges that on August 11, 2002, Delatorre and Guzman, and others known and unknown to the Grand Jury, for the purpose of gaining entrance to, and for maintaining and increasing the defendants' position in the Insane Deuces, knowingly and intentionally murdered David Lazcano, in violation of 18 U.S.C. §§ 1959(a)(1) and (2). (R. 227, Indictment, Count Two, ¶¶ 3-4.) Section 1959 describes penalties for violent crimes in aid of racketeering activity. Specifically, Section 1959(a)(1) and (2) state that: Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished (1) for murder, by death or life imprisonment, or a fine under this title, or both; and for kidnapping, by imprisonment for any term of years or for life, or a fine under this title, or both; (2) for maiming, by imprisonment for not more than thirty years or a fine under this title, or both. 18 U.S.C. § 1959. B. Count Three: Conspiracy to Murder Victim F The Indictment next alleges that beginning as early as August 15, 2002, until at least August 22, 2002, Salazar, and others known and unknown to the Grand Jury, for the purpose of gaining entrance to, and for maintaining and increasing the defendant's position in the Insane Deuces, did knowingly and intentionally conspire to murder Victim F, in violation of 18 U.S.C. §§ 1959(a)(5) and (2). (R. 227, Indictment, Count Three, ¶¶ 2-3.) In addition to the criminal penalties state above for violations of Section 1959(a)(2), Section 1959(a)(5) states that attempting or conspiring to commit murder or kidnapping shall be punishable by imprisonment for not more than ten years or a fine under this title, or both. 18 U.S.C.A. § 1959(a)(5). C. Count Four: Conspiracy to Murder Victim G In Count Four, the Indictment charges another conspiracy to commit murder. The government alleges that beginning as early as September 15, 2002, and continuing to at least November 2002, Juarez, Salazar, Morales, and Barbosa, and others known and unknown to the Grand Jury, 1040 for the purpose of gaining entrance to, and for maintaining and increasing the defendants' positions in the Insane Deuces, did knowingly and intentionally conspire to murder Victim G, in violation of 18 U.S.C. §§ 1959(a)(5) and (2). (R. 227, Indictment, Count Four, ¶¶ 2-3.) D. Count Five: Assault with a Dangerous Weapon Upon Victim C Next, the Indictment alleges that on September 19, 2002, Delatorre, Guzman, and Horton, and others known and unknown to the Grand Jury, for the purpose of gaining entrance to, and for maintaining and increasing the defendants' position in the Insane Deuces, did knowingly and intentionally assault Victim C with a dangerous weapon, in violation of 18 U.S.C. §§ 1959(a)(3) and (2). (R. 227, Indictment, Count Five, ¶¶ 2-3.) In addition to the penalties listed above for violations of Section 1959(a)(2), Section 1959(a)(3) states that the punishment for for assault with a dangerous weapon or assault resulting in serious bodily injury, is imprisonment for not more than twenty years or a fine under this title, or both. 18 U.S.C.A. § 1959(a)(3). E. Count Six: Murder of David Morales In Count Six, the Indictment alleges that on October 16, 2002, Delatorre and Horton, and others known and unknown to the Grand Jury, including Co-conspirator B, for the purpose of gaining entrance to, and for maintaining and increasing the defendants' positions in the Insane Deuces, did knowingly and intentionally murder David Morales, in violation of 18 U.S.C. §§ 1959(a)(1) and (2). (R. 227, Indictment, Count Six, ¶¶ 2-3.) F. Count Seven: Murder of Urbel Valdez In Count Seven of the Indictment, the government charges that on November 17, 2002, Delatorre, and others known and unknown to the Grand Jury, including Co-conspirator B, for the purpose of gaining entrance to, and for maintaining and increasing the defendants' position in the Insane Deuces, did knowingly and intentionally murder Urbel Valdez in violation of 18 U.S.C. §§ 1959(a)(1) and (2). (R. 227, Indictment, Count Seven, ¶¶ 2-3.) G. Count Eight: Assault with a Dangerous Weapon upon Victim E Finally, in the last substantive RICO count, the Indictment charges that on May 11, 2003, Perez, and others known and unknown to the Grand Jury, for the purpose of gaining entrance to, and for maintaining and increasing the defendant's position in the Insane Deuces, did knowingly and intentionally commit assault with a dangerous weapon upon Victim E, in violation of 18 U.S.C. § 1959(a)(3) and (2). (R. 227, Indictment, Count. Eight, ¶¶ 2-3.) III. Narcotics Offenses A. Count Nine Count Nine alleges that Delatorre, Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, Rodriguez, Hernandez, Lechuga, Horton, and Susinka violated 21 U.S.C. § 846 by conspiring with each other to distribute and possess with intent to distribute cocaine, crack cocaine, and marijuana, in violation of 21 U.S.C. § 841(a)(1). (R. 227, Indictment, Count Nine ¶¶ 1-2.) The Indictment alleges that as part of the conspiracy, the defendants used profits from the sale of the drugs to pay dues, buy guns, and finance parties for the Insane Deuces, as well as bond gang members out of jail. (Id. ¶¶ 3-4.) Furthermore, the Indictment charges that the defendants engaged in violent acts against rival gang members to protect and increase drug sales. (Id. ¶ 6.) Specifically, the Indictment 1041 identifies the following drug transactions as part of the conspiracy: On or about April 15, 2002, Susinka negotiated the sale of, and then sold, approximately 28 grams of powder cocaine to a cooperating individual. (Id. ¶ 9.) On or about May 31, 2002, Martinez negotiated the sale of, and then sold, approximately 28 grams of powder cocaine to a cooperating individual. (Id. ¶ 10.) On or about June 10, 2002, Delatorre negotiated the sale of, and then sold, approximately 52 grams of crack cocaine to a cooperating individual. (Id. ¶ 11.) On or about June 11, 2002, Insane Deuce gang member and co-conspirator John Landeros ("Landeros") negotiated the sale of, and then sold, approximately 28 grams of powder cocaine to a cooperating individual. (Id. ¶ 12.) On or about June 28, 2002, Martinez negotiated the sale of, and then sold, approximately 28 grams of powder cocaine to a cooperating individual. (Id. ¶ 13.) On or about August 21, 2002, another gang member, John Landeros, negotiated the sale of, and then sold, approximately 56 grams of crack cocaine to a cooperating individual. (Id. ¶ 14.) On or about September 18, 2002, Salazar negotiated the sale of, and then sold, approximately 28 grams of powder cocaine to a cooperating individual. (Id. ¶ 15.) On or about October 9, 2002, Delatorre negotiated the sale of, and then sold, approximately 52 grams of crack cocaine to a cooperating individual. (Id. ¶ 16.) A. Counts Ten and Eleven Counts Ten and Eleven of the Indictment charge Martinez, who remains a fugitive, with knowingly and intentionally distributing mixtures containing cocaine, in violation of 21 U.S.C. § 841(a)(1). Because Martinez remains a fugitive, these Counts will not be at issue during the trial of the fourteen other defendants. B. Count Twelve Count Twelve of the Indictment charges that on or about October 9, 2002, Delatorre intentionally distributed in excess of 50 grams of mixtures containing cocaine base in the form of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Section 841(a)(1) provides that "it shall be unlawful for any person knowingly or intentionally (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." 21 U.S.C. § 841(a)(1). IV. Firearms Offenses A. Count Thirteen The Indictment next accuses Delatorre of knowingly possessing a firearm, a Sturm Ruger, Model P-89, 9mm semi-automatic pistol, with the importer's and manufacturer's serial number removed, obliterated, and altered, which had been transported in interstate commerce, in violation of 18 U.S.C. § 922(k). (R. 227, Count Thirteen.) Section 922(k) makes it unlawful "for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered or to possess or receive any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce." 18 U.S.C.A. § 922(k). B. Count Fourteen Count Fourteen charges that Benabe, having previously been convicted of a crime punishable by a term of imprisonment exceeding one year, knowingly possessed 1042 firearms in and affecting interstate commerce, specifically, a Rossi, Model 71, .357 magnum revolver bearing serial number F384238, and a Intratec, Model Tec-22, .22 caliber pistol with an obliterated serial number, in violation of 18 U.S.C. § 922(g)(1). Section 922(g)(1) provides: "It shall be unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any fire arm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." 18 U.S.C. § 922(g)(1). C. Count Fifteen Finally, the last Count in the Indictment charges that Benabe knowingly possessed a firearm, namely, an Intratec Model Tec-22, .22 caliber pistol, which had the manufacturer's serial number removed, obliterated, and altered, which firearm had been transported in interstate commerce, in violation of 18 U.S.C. § 922(k). ANALYSIS Most of the defendants have either filed motions to sever the trial of this fourteen-defendant case or have submitted statements in support of a particular severance arrangement; some defendants seek an individual trial, while others have moved for severance into two or three trials. All of the defendants seek severance under Federal Rule of Criminal Procedure 14, which provides for severance as relief from prejudicial joinder, and a few defendants allege that the Indictment misjoined the defendants under Federal Rule of Criminal Procedure 8(b). Benabe has also filed a motion alleging that the Indictment improperly joined Counts Fourteen and Fifteen in violation of Federal Rule of Criminal Procedure Rule 8(a). Due to the "mega" nature of this fourteen-defendant case, this case has generated a huge amount of briefing. This Court has previously issued two memorandum opinions' in these proceedings. (See R. 241, 6/7/2006 opinion denying in part and granting in part defendants' motions for bill of particulars and pre-authorization discovery; R. 424, 9/4/2007 opinion denying Benabe's motion to suppress property seized from his home.) In addition, we have issued four written orders ruling on certain motions. (See R. 460, 10/3/2007 order granting Morales an evidentiary hearing on motion to suppress post-arrest statement; R. 428, 9/6/2007 order denying without prejudice of Morales's motion to suppress post-arrest statement; R. 417, 8/29/2007 order denying in part of Delatorre's motion to suppress post-arrest statement; R. 415, 8/29/2007 order denying Delatorre's motion in limine to restrict the government to using his proffer statement only as allowed by FRE 410). The severance issue itself has generated over twenty, some very extensive, briefs. (See R. 151, R. 161, R. 329, R. 342, R. 347, R. 348, R. 356, R. 357, R. 365, R. 367, R. 403, R. 457, R. 461, R. 474, R. 485, R. 500, R. 503, R. 507, R. 509, R. 511, R. 513.) The Court has addressed each of the severance arguments below. I. Benabe's Motion to Sever Counts Fourteen and Fifteen Benabe moves to sever Counts Fourteen and Fifteen from the remainder of the case. (R. 347, Benabe Mot. to Sever.) Count Fourteen charges Benabe with possessing a firearm after a felony conviction, and Count Fifteen charges him with possessing a firearm with an obliterated serial number. He is charged alone in those counts. (R. 227, Indictment at 40-41.) Benabe alleges that these charges were misjoined with the rest of the Indictment in violation of Federal Rule of Criminal 1043 Procedure 8(a). (R. 347, Benabe Mot. to Sever at 7.) In the alternative, he argues that severance of the two counts is warranted under Rule 14. (Id.) Proper joinder of Counts Fourteen and Fifteen requires that they be "of the same or similar character," "based on the same act or transaction," or "connected with" or "parts of a common scheme or plan" as the remaining Counts in the Indictment. Fed. R. Crim P. 8(a). Although the government does not claim that either of the two firearms referenced in Counts Fourteen and Fifteen were used in furtherance of any other crimes in the Indictment, the government argues that these Counts are part of a "common scheme" because the Indictment details a conspiracy that included a pattern of gun violence and systematic weapons possession. (R. 356, Gov't Resp. at 26.) The government points to Paragraph 12(g) of the Indictment, which states: "The Insane Deuces managed the procurement, transfer, use, concealment, and disposal of firearms and dangerous weapons with the Insane Deuces to protect gang-related territory, personnel, and operations, and to deter, eliminate, and retaliate against competitors and other rival criminal organizations." (R. 227, Indictment ¶ 12(g).) The Indictment also charges firearm violations as overt acts in furtherance of the alleged narcotics conspiracy. (Id., Count Nine, ¶¶ 3-4, 7.) In addition, the government argues that the firearms referenced in Counts Fourteen and Fifteen "were recovered simultaneously with other evidence in his residence showing ongoing membership in the RICO conspiracy." (R. 356, Gov't Resp. at 26.) As explained above, joinder under Rule 8 is to be construed broadly. Stillo, 57 F.3d at 557. The Court looks to the face of the indictment to determine whether the charges were properly joined. United States v. Hubbard, 61 F.3d 1261, 1270 (7th Cir.1995). "The focus is on the underlying acts that constitute criminal offenses. The defendants must be charged with crimes that well up out of the same series of such acts, but they need not be the same crimes." United. States v. Pigee, 197 F.3d 879, 891 (7th Cir.1999) (quoting United States v. Marzano, 160 F.3d 399, 401 (7th Cir.1998)). If the charged offenses are of like class or category, although not connected temporally or evidentially, joinder should be proper under Rule 8(a). United States v. Turner, 93 F.3d 276, 283 (7th Cir.1996) (internal citations omitted). Something more than the fact that two crimes were committed in the same residence or vehicle must be shown. Hubbard, 61 F.3d at 1271. In this case, while the Indictment does not charge that the guns which formed the basis of the racketeering counts are the same ones that form the basis of the firearms counts against Benabe, joinder of Counts Fourteen and Fifteen was proper under the broad net of Rule 8(a). The firearms counts against Benabe are, indeed, of like class or category to the remaining charges in the Indictment, which included, as the government argues, charges of continuing firearms violations. In addition, while it is not enough that the firearms were found in the same residence as evidence of Benabe's gang involvement, the firearms are temporally linked to the other charges in the Indictment. The Indictment charges that the alleged conspiracy extended from 1994 to at least the date of return of the Indictment in 2006, and the search of Benabe's residence occurred in September 2005. Nevertheless, the Court finds that severance of Counts Fourteen and Fifteen are warranted under Rule 14(a) because joinder of those offenses "appears to prejudice" Benabe. Fed.R.Crim.P. 14(a). Because the felon-in-possession count would 1044 allow the government to introduce evidence of Benabe's 1987 felony conviction for murder, there is a danger that Benabe will suffer prejudice if these counts are not severed from the conspiracy and murder counts in this case. (R. 347, Benabe Mot. to Sever at 7.) "[E]vidence of a prior conviction has long been the subject of careful scrutiny and use at trial because of the danger that the jury might convict, not based on the evidence, but because it feels the defendant is a `bad person.'" United States v. Singh, 261 F.3d 530, 533-34 (5th Cir.2001) (internal citations and quotations omitted). In Singh, the. Fifth Circuit held that the district court abused its discretion by failing to sever the felon-in-possession charge because it allowed the government to introduce highly prejudicial evidence that resulted in an unfair trial on the remaining counts. Id.; see also United States v. Hall, 370 F.3d 1204, 1208 (D.C.Cir.2004) (additional charges that were joined with the felon-in-possession count, charges for which a prior felony conviction was not an element of the offense, may unduly prejudice the defendant). Cases in which courts have found that joinder of a felon-in-possession charge was not prejudicial are distinguishable from this case. For example, in United States v. Quilling, proof that the defendant was a convicted felon would have been admitted anyway because it was an element of the other offenses with which he was charged. 261 F.3d 707, 714 (7th Cir.2001); see also United States v. Dowd, 451 F.3d 1244, 1249-50 (11th Cir.2006) (defendant not prejudiced by evidence at trial that he was a convicted felon where the jury would have heard all of the firearms-related evidence even in a severed trial); United States v. Rock, 282 F.3d 548, 552 (8th Cir.2002) (where evidence of the felon-in-possession charge would have been admissible in a separate trial of the witness tampering charge, the defendant does not suffer any additional prejudice if the two crimes are tried together). While instructions to the jury to consider the defendant's criminal history for the limited purpose of the felon-in-possession count may suffice to minimize the chance of prejudice, Stokes, 211 F.3d at 1043, this Court declines to take this risk, especially in light of the fact that the cost to judicial economy will be minimal. Benabe contends, and the government does not dispute, that the trial of those two counts would take only two or three days. (R. 347, Benabe Mot. to Sever at 8.) The Court thus orders a separate trial of Counts Fourteen and Fifteen pursuant to Federal Rule of Criminal Procedure 14(a). This trial will occur after Benabe is tried on the other charges in the Indictment. II. Federal Rule of Criminal Procedure 8(b) Federal Rule of Criminal Procedure 8(b) permits an indictment to join two or more defendants "if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count." Fed.R.Crim.P. 8(b); see also United States v. Smith, 223 F.3d 554, 573 (7th Cir.2000). For defendants to be charged together, the acts or transactions alleged in the indictment thus must have occurred "pursuant to a common plan or scheme." United States v. Lanas, 324 F.3d 894, 899 (7th Cir.2003). Rule 8(b) is to be construed "broadly to allow liberal joinder in order to enhance judicial efficiency." United States v. Stillo, 57 F.3d 553, 557 (7th Cir.1995). Furthermore, "[i]t is well settled that a conspiracy charge is a proper basis for joinder under Rule 8(b)." Id.; see also United States v. Dounias, 777 1045 F.2d 346, 348 (7th Cir.1985) ("Conspiracy charges, . . ., can provide the bond that links the divergent substantive crimes into a single transaction for Rule 8(b) purposes.") Defendant Handley argues that he was misjoined in the Indictment in violation of Rule 8(b) because he is only named in Count One, alleging a RICO conspiracy under 18 U.S.C. § 1962(d). (R. 151, Handley Mot. for Severance at 2.) Specifically, Handley argues that the Indictment fails to identify the nature or scope of his participation in the alleged racketeering conspiracy and the substantive crimes, and thus he should not have been joined with the other defendants. (Id. at 3-4.) Handley's name is only mentioned in two paragraphs in the Indictment. First, Paragraph 8m states: "Romel Handley was a Shorty member of the Insane Deuces and held the position of `Second Seat Shorty' in Aurora, Illinois. Handley directed other members of the enterprise in carrying out unlawful and other activities in furtherance of the conduct of the affairs of the Insane Deuces." (R. 227, Indictment ¶ 8m.) Then, in Paragraph 9, Handley's name is listed along with all of the other defendants as having "knowingly and unlawfully conspire[d]" to violate RICO, "that is, to unlawfully conduct and participate, directly and indirectly, in the conduct of the affairs of the Insane Deuces, through a pattern of racketeering activity, as alleged herein through paragraphs 10 and 11 of this count of the indictment." (R. 227, Indictment ¶ 9.) Because Handley was charged with participating in the RICO conspiracy, he was properly joined in the Indictment. Section 1962(d), the "RICO conspiracy statute," provides that it is unlawful "to conspire to violate any of the provisions of subsections (a), (b) or (c) of this section." 18 U.S.C. § 1962(d). Section 1962(c), the "substantive" RICO provision, criminalizes the participation in the affairs of an enterprise affecting interstate commerce through a pattern of racketeering activity. United States v. Glecier, 923 F.2d 496, 500 (7th Cir.1991). Even though the Indictment does not allege that Handley violated Section 1962(c) or agreed to personally commit or participate in the commission of the predicate crimes, Handley was properly joined in the RICO conspiracy count for his alleged agreement and direction to co-conspirators to commit predicate acts on behalf of the conspiracy. See United States v. Quintanilla, 2 F.3d 1469, 1484-85 (7th Cir.1993) (holding that Section 1962(d)'s target is "the agreement to violate RICO's substantive provisions, not the actual violations themselves.") The Indictment properly alleges conspiracy. It included all of the elements of the offense and sufficiently informed Handley of the nature of the conspiracy charge so that he could defend against it and use the judgment as a bar to any future prosecution for the same offense. See United. States v. Garner, 837 F.2d 1404, 1412 (7th Cir.1987); United States v. Torres, 191 F.3d 799, 805 (7th Cir.1999). "Generally, an indictment is sufficient when it sets forth the offense in the words of the statute itself, as long as those words expressly set forth all the elements necessary to constitute the offense intended to be punished." United States v. Torres, 191 F.3d 799, 805 (7th Cir.1999) (internal citations omitted); United States v. Anderson, 280 F.3d 1121, 1124 (7th Cir.2002). The conspiracy charge in the Indictment tracks the words of the statute, 18 U.S.C. § 1962(d), and sets forth in detail the "manner and means of the conspiracy." (See R. 227, Indictment ¶¶ 9-12.) Therefore, conspiracy was properly charged, and Handley and the other Defendants were properly joined under Federal Rule of Criminal Procedure 8(b). See Garner, 837 F.2d at 1412. 1046 III. Federal Rule of Criminal Procedure 14(a) Even though joinder of the Defendants was appropriate under Rule 8(b), Defendants argue that this Court should sever the trial pursuant to Federal Rule of Civil Procedure 14. See United States v. Garner, 837 F.2d 1404, 1412 (7th Cir.1987) ("Once the Rule 8 requirements are met by the allegations in the indictment, severance thereafter is controlled entirely by Federal Rule of Criminal Procedure 14."); United States v. Diaz, 876 F.2d 1344, 1357 (7th Cir.1989) (same). Rule 14 provides: "If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." Fed. R.Crim.P. 14(a). "This Rule must be read against the backdrop of Rule 2, which provide, that the Federal Rules of Criminal Procedure `are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.'" United States v. Andrews, 754 F. Supp. 1161, 1170 (N.D.Ill.1990) (quoting Fed.R.Crim.P. 2). The trial court has broad discretion to grant or deny a motion for severance. "Rule 14 leaves the determination of risk of prejudice and any remedy that may be necessary to the sound discretion of the district courts." United States v. Rollins, 301 F.3d 511, 517-18 (7th Cir.2002). (internal citations and quotations omitted). Indeed, "Rule 14 does not require severance even if prejudice is shown; rather it leaves the tailoring of the relief to be granted, if any, to the district court's sound discretion." United States v. Souffront, 338 F.3d 809, 828 (7th Cir.2003) (quoting Zafiro v. United States, 506 U.S. 534, 538-39, 113 S. Ct. 933, 122 L. Ed. 2d 317 (1993)); see also United States v. Garver, 809 F.2d 1291, 1298 (7th Cir.1987) (The decision whether to grant or deny a motion for severance is vested in the discretion of the district court.). The Supreme Court has instructed that "a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539, 113 S. Ct. 933. In determining whether a joint trial "appears to prejudice" a defendant under Rule 14, the Court traditionally looks to whether any of the following factors exist: (1) antagonistic defenses conflicting to the point of being irreconcilable and mutually exclusive; (2) massive and complex evidence making it almost impossible for the jury to separate evidence as it relates to each defendant when determining each defendant's innocence or guilt; (3) a co-defendant's statement inculpating the moving defendant; and (4) gross disparity in the weight of the evidence against the defendants. United States v. Clark, 989 F.2d 1490, 1499 (7th Cir.1993). "When many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened." Zafiro, 506 U.S. at 539, 113 S. Ct. 933. While there are different degrees of culpability among the defendants, contrary to their claims, the evidence against the individual defendants is not "widely varying," such that they would be prejudiced by the "spillover" effect from the evidence of allegations that do not apply them. (See R. 457, Salazar Statement at 1; R. 161, Perez Mot. to Sever at 2; R. 151, Handley Mot. to Sever at 5; R. 342, Rodriguez Mot. to Sever at 3.) Because 1047 each individual defendant is a charged member of the RICO conspiracy case, "[t]he vast majority, if not all, of the evidence admitted in the joint trial would have been admissible had [the defendant] been tried alone." United States v. Souffront, 338 F.3d 809, 831 (7th Cir.2003); United States v. Sababu, 891 F.2d 1308, 1331 (7th Cir.1989). Defendants also argue that they would be unfairly prejudiced by a joint trial because it could result in antagonistic or inconsistent defenses, or, in essence, "defense counsels attacking other defendants." (R. 342, Rodriguez Mot. to Sever at 2; R. 161, Perez Mot. to Sever at 3.) The Seventh Circuit has held, however, that "[f]inger-pointing among the defendants is not only acceptable but also a benefit of a joint trial, for it helps the jury to assess the role of each defendant." United States v. Hoover, 246 F.3d 1054, 1061 (7th Cir.2001). For inconsistent defenses to justify severance, the defenses must be antagonistic to the point of being irreconcilable and mutually exclusive. United States v. Goodwin, 496 F.3d 636, 644 (7th Cir.2007). Defendants have presented no evidence of this. Defendants also argue for severance because a co-defendant's statement may inculpate them in violation of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). (See, e.g., R. 348, Guzman Mot. to Sever at 4.) Bruton holds that "it violates the confrontation clause of the sixth amendment to admit against one defendant a confession accusing a co-defendant, when the declarant will not testify and thus cannot be cross-examined." Hoover, 246 F.3d at 1058-59 (citing Bruton, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476). Co-defendants' confessions may be admitted, however, if they are sufficiently redacted so they do not facially incriminate or obviously refer to other defendants. United States v. Hernandez, 330 F.3d 964, 972-73 (7th Cir.2003) (citing Gray v. Maryland, 523 U.S. 185, 197, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998); Richardson v. Marsh, 481 U.S. 200, 206-07, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987)). In Hernandez, for example, the Seventh Circuit found that the reference in a defendant's post-arrest interview to the "Latin Kings" did not implicate the co-defendants because those terms could have referred to "any number of other" Latin Kings. Hernandez, 330 F.3d at 974. Pursuant to this Court's order, the government has submitted portions of various confessions it seeks to use, with suggested redactions. (R. 356, Gov't Severance Sur-Reply at 16-20.) The government's redactions appear to follow the prescription laid out by the Supreme Court and the Seventh Circuit, as reviewed above. As in Hernandez, the government refers to "the Insane Deuces" or to "another gang member" or to "one of the Shorties," rather than to specific Defendants. (Id.) At this point, the Court is satisfied that there will be no Bruton violations in this case, and thus severance is not warranted on this ground. Nevertheless, this Court retains the authority to review co-defendants' statements and order additionally redactions as necessary. IV. Motions for Individual Trials Several defendants have filed motions for individual trials pursuant to Federal Rules of Criminal Procedure 8 and 14. None of these motions has merit. A. Steven Susinka Defendant Susinka argues in his pro se motion for severance that he should be granted an individual trial because he withdrew from or abandoned any alleged conspiracy by virtue of being in jail when some acts alleged in the Indictment occurred. (R. 403, Susinka Mot. to Sever at 9-10.) Incarceration by itself, however, 1048 is not sufficient to achieve a withdrawal from a conspiracy. See United States v. Wilson, 134 F.3d 855, 863 (7th Cir.1998). In addition to the termination of the defendant's active role in the conspiracy, which an arrest accomplishes, withdrawal requires an affirmative act to defeat or disavow the purpose of the conspiracy, such as a full confession to the authorities; mere inactivity is not sufficient. United States v. Pandiello, 184 F.3d 682, 687 (7th Cir. 1999); United States v. Maloney, 71 F.3d 645, 654-55 (7th Cir.1995). Moreover, Susinka was arrested and incarcerated in April 2002. (R. 403, Susinka Mot. to Sever at 9-10.) Whether Susinka withdrew from the conspiracy at that point does not affect this Court's decision with regard to severance because a large portion of the allegations against Susinka involve time periods when he was not incarcerated. The Indictment alleges that the conspiracy extended from "in or about late 1994" and continued to at least the date of return of the indictment in 2006. (R. 227, Second Superceding Indictment ¶ 9.) Accordingly, Susinka is properly joined with the other defendants because he is alleged to have been part of the conspiracy for many years, even outside of his period of incarceration. Susinka also argues that he would be prejudiced by a joint trial because his exculpatory witness would be subject to impeachment by other defendants in the case. (R. 403, Susinka Mot. to Sever at 23-24.) This is in essence a strategy to obtain a better opportunity for acquittal, which is an insufficient basis for severance. Warner, 498 F.3d at 700. Susinka does not deserve a separate trial, however, simply because he wants to shield his witness from potentially damaging questioning. The other defense attorneys' questioning will help the jury do what it is required to do: determine the witness's credibility. B. Steven Perez Perez argues that he should be tried individually because he claims that he would suffer prejudice from a joint trial under Rule 14. (R. 161, Perez Mot. to Sever at 1.) Perez is alleged to be part of the RICO conspiracy in Count One, specifically committing or causing to be committed the attempted murders of Victims A, B, and E. (R. 227, Indictment, Count One ¶¶ 13, 14, 21.) In addition, Count Eight of the Indictment charges Perez with assault with a dangerous weapon upon Victim E. (Id., Count Eight.) Perez argues that he would be prejudiced from the "spill-over" effect of evidence of the other crimes charged in the Indictment. (R. 161, Perez Mot. to Sever at 3.) As explained above, however, because Perez is a charged member of the RICO conspiracy case, much of the evidence admitted in the joint trial would be admissible against him even if he were tried alone. Souffront, 338 F.3d at 831. In addition, Perez is named in a substantial number of the violent acts underlying the RICO conspiracy charge, intertwined and overlapping with his co-defendants, such that Perez would not be substantially prejudiced by a joint trial and judicial economy would be disserved by severance into an individual trial. C. Romel Handley Defendant Handley also filed a motion to sever himself from his co-defendants. (R. 151, Handley Mot. to Sever.) Handley was charged in Count One with being a member of the RICO conspiracy, but was not alleged to have committed any specific illegal act in furtherance of the conspiracy other than holding the position of "Second Seat Shorty" in the Insane Deuces. (R. 227, Indictment, Count One, ¶ 8m.) As explained above, Handley was properly joined in the Indictment under Rule 8(b). Nevertheless, Handley maintains 1049 that he will be prejudiced under Rule 14 because there is a gross disparity in the weight of evidence against him versus the other defendants. (R. 151, Handley Mot. to Sever. at 5.) While Handley's argument for severance is stronger than his co-defendants, this Court is unwilling to sever the Indictment into individual trials because once the special concerns about fairness of the "megatrial" are addressed, the well-established belief holds true that "joinder of defendants, to the extent possible, will preserve judicial resources and permit the jury to have as complete a view of the evidence as possible." Gray, 173 F.Supp.2d at 10; see also Hardin, 209 F.3d at 664 (explaining economies and benefits of joint trial); Stokes, 211 F.3d at 1042 (same); United States v. Kennedy, 819 F. Supp. 1510, 1517 (D.Colo.1993) (limiting severance to groups of defendants so that severance will promote and maintain judicial economy inherent in group trials). D. Christian Guzman Defendant Guzman also seeks a separate trial in this matter. (R. 348, Guzman Mot. to Sever.) Guzman argues that "there is little or no evidence of his involvement in the overall racketeering conspiracy as charged by the Government." (Id. at 3.) The Indictment alleges, however, that Guzman participated in the RICO conspiracy through murdering David Lazcano and attempting to murder Victim C. (R. 227, Indictment, Count One ¶¶ 16-17.) In addition, the Indictment charges Guzman with the additional counts of murder and assault with a dangerous weapon. (Id., Counts Two, Five.) In light of the caselaw cited above, and the allegations in the Indictment tying Guzman closely in with the overall RICO conspiracy, the Court denies Guzman's motion to sever. V. Special Concerns Raised by Prospect of Joint Mega-Trial While no defendant has demonstrated the need for severance based on misjoinder or the traditional concerns of prejudice, the proposed four to five month long trial, and the likely jury prejudice that could result, are of vital concern to this Court. In addition, time delays and procedural complications from this "mega-trial" have been and will continue to be significant. Trial judges have the inherent authority, and duty, to actively manage criminal trials. See United States v. Warner, 506 F.3d 517, 521-22 (7th Cir.2007) (Posner, J. and Kanne, J., Williams, J., dissenting). Indeed, it has always been this Court's policy to proactively manage criminal trials to ensure the maximum fairness to each defendant. Trials of such extensive scope and duration threaten the most basic goals of the federal criminal justice system: "simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay." Fed.R.Crim.P. 2. See Andrews, 754 F.Supp. at 1170 (reading Rule 14 against the backdrop of Rule 2); see also United States v. Shea, 750 F. Supp. 46, 47-50 (D.Mass.1990) (severing trial because of distinctive problems of "megatrial" such as complexity, number of defendants, and length of trial); United States v. Jones, Crim. Nos. 91-570-01 thru XX-XXX-XX, 1992 WL 78784, at 3 (E.D.Pa. Mar. 24, 1992) (same); United States v. Williams-Davis, Crim. No. 91-0559, 1991 WL 319692, at 2 (D.D.C. Dec. 16, 1991) (same). A. Jury Prejudice The analysis of jury prejudice is not limited to potential prejudice by the jurors against the defendants in an extended fourteen-defendant trial. These mega-trials 1050 also involve considerable prejudice to the jury system and the jurors themselves. 1. Prejudice to Jury System It has been long recognized that the risk of prejudice to the entire criminal justice system increases incrementally with the number of defendants and the length of the trial. The human limitations of the jury system are especially tested during a lengthy trial. Our esteemed former Chief Judge Marvin E. Aspen severed a RICO street gang indictment which bears some striking similarities to the Indictment before this Court. Andrews, 754 F. Supp. 1161, In Andrews, the principal nexus between all the defendants was their alleged efforts to promote the criminal activities of a well-organized street gang. Id. at 1172. The Andrews indictment charged hundreds of distinct criminal acts committed by gang members over a twenty-three year period. The Andrews opinion is a masterful and scholarly opinion on the issue of severance and potential mega-trials. Judge Aspen thoughtfully reviewed all of the relevant existing legal research and thoroughly pointed out all of the real prejudice that arises when prosecutors seek to join a large number of defendants in complex multi-count indictments covering wide time spans. This Court fully adopts the wise reasoning of Judge Aspen; everything he said seventeen years ago is still true today. Judge Aspen cautioned in 1990 that long and complex trials placed "in jeopardy the most important objective of a criminal trial: accurate fact finding." Andrews, 754 F.Supp. at 1161. Almost seventeen years later, three judges on our Court of Appeals recently indicated that this type of long trial makes it more likely that the jury will not be able to render an intelligent verdict. See Warner, at 523 (Posner, J., dissenting). "Jurors become overwhelmed by the volume of evidence and numbed by its repetitiousness. Their attention flags; their minds wander; the witnesses . . . get mixed up in the jurors' minds, or forgotten; the profusion of exhibits . . . makes the documentary record unintelligible. The impressions created by the closing arguments are likely to wipe out everything that went before." Id. at 523-24. This may lead to the serious risk of juror confusion that would "prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539, 113 S. Ct. 933. In the forty-four page Indictment before this Court, the grand jury alleges that the defendants belonged to the Insane Deuce Nation Street Gang, which existed to promote illegal activities in Aurora, Elgin, and Chicago. The alleged illegal activities included the trafficking of illegal controlled substances and dangerous weapons, murder, attempted murder, armed robbery, grand theft, witness tampering, and other acts of violence. (R. 227, Indictment, Count One, ¶ 7.) The Indictment covers a ten-year period going back to late 1994. (Id. ¶ 9.) The Indictment specifically charges an overarching RICO conspiracy, five attempted murders, four murders, two conspiracies to commit murder; multiple assaults with dangerous weapons; an overarching drug conspiracy; and multiple individual weapons and drug charges. The government estimates that its case-in-chief will run approximately four to five months; however, this does not include time for the defense case, potentially lengthy jury selection, or jury deliberation. The government intends to call at least 130 witnesses, including numerous law enforcement officers and multiple experts including coroners, ballistic experts, and drug chemist experts. (R. 329, Gov't Resp. to Mot. to Sever at 16-17.) This is more than the hundred or so witnesses the Warner dissent found would confuse a jury involving only two defendants. 1051 Although we "presume that the jury capably sorts through the evidence and follows the instructions . . . to give separate consideration to each defendant," United States v. Hardin, 209 F.3d 652, 664 (7th Cir.2000), a trial of this length and magnitude raises significant concerns, as noted in the Andrews and Warner opinions. "There are potentially limits to the complexity that a jury can handle." United States v. DeCologero, 364 F.3d 12, 24 (1st Cir.2004). Jurors will be asked to keep an open mind during the government's months-long trial presentation, and at the close of the entire case, they will be asked to sift through the sea of evidence and determine how it relates to the alleged role of each of the fourteen individual defendants. The magnitude of evidence makes it almost impossible for the jury to separate evidence as it relates to each defendant when determining each defendant's innocence or guilt. Garner, 837 F.2d at 1413; see also United States v. Oglesby, 764 F.2d 1273, 1276 (7th Cir.1985). In such a case, "[e]vidence concerning the most guilty defendants might, in the eyes of the jury, implicate less guilty defendants by association. The sheer confusion resulting from trying numerous defendants together may also prejudice defendants." United States v. Sophie, 900 F.2d 1064, 1083 (7th Cir.1990). Although careful and frequent cautionary instructions can reduce or eliminate any prejudice which might otherwise result from a joint trial, "there are some situations that make frequent cautionary instructions a mere formality or a procedural nicety that substitutes a form of fairness for the substance of fairness." United States v. W.R. Grace, 439 F. Supp. 2d 1125, 1130-31 (D.Mont.2006); see also United States v. Gatto, 746 F. Supp. 432, 449-50 (D.N.J.1990) (severing case because multiple conspiracies charged in the indictment may, even with extensive limiting instructions, render the jury unable to compartmentalize the evidence against each defendant for each conspiracy). If anything has changed over the seventeen years since the Andrews opinion, it is that jurors' expectations that trials will be conducted quickly and efficiently have steadily increased each year. Our computer-age society expects everything to be conducted in "real time." Thus, it is this Court's belief that today's jurors have an even harder time making sound decisions after a trial which involves hundreds of hours of trial testimony and thousands of trial exhibits. Simply put, an inordinately long and inefficient trial substantially increases poor jury decisions on multiple levels. See Warner, at 523 (Posner, J., dissenting). 2. Prejudice to Jurors This type of trial also imposes a substantial burden on the citizens who serve on the jury. Because of the length of the trial, this Court will be forced to use a special juror summons which will attempt to prequalify potential jurors who can serve on an extended trial without undue hardship. Nevertheless, the jurors who serve on this case will be asked to make a significant time commitment to the federal criminal justice system. These almost endless trials obviously work severe hardships on the jurors selected. They are removed from their normal lives for inordinate stretches of time. They must sit stoically and silently for hours every day, day after day. They must absorb vast quantities of information, try to keep it in order, and evaluate its credibility and probative value. They must also perform the "mental gymnastic" [] of properly considering the various permutations of the many limiting instructions they are given. 1052 United States v. Gallo, 668 F. Supp. 736, 754 (E.D.N.Y.1987); see also United States v. Baker, 10 F.3d 1374, 1391 (9th Cir.1993) ("Jurors have their employment and home life disrupted, often at great financial, physical, and personal expense. They . . . are prohibited from engaging in many ordinary pursuits of their daily lives, such as reading the newspaper.") Furthermore, for the five months of trial, jurors must exercise the utmost restraint: carefully evaluating the evidence, yet not discussing the evidence with anyone even each other. This inordinate burden strains not only the jurors, but the entire jury system. B. Prejudice from the Sheer Number of Defendants The sheer number of defendants here fourteen has inherent risks of prejudice associated with it, most notably from time delays. After the return of the Indictment, the government initially announced its intent to seek the death penalty for eight of the fourteen defendants. The death penalty authorization process alone effectively delayed this case for one year as this Court was obligated to appoint a second, death penalty attorney for each of the eight affected defendants and allow for appropriate mitigation presentations. In the end, the government declined to proceed with death penalty proceedings. Throughout this entire period, the nonaffected six defendants could only prepare for and await trial. During this entire extended time period, all defendants have been incarcerated pursuant to appropriate pretrial detention orders.[2] This is a significant prejudice for defendants who are presumed innocent. In cases such as these, the defendants' "Sixth Amendment rights to a speedy trial are stretched about as far as can be without making a mockery of that constitutional protection." United States v. Gallo, 668 F. Supp. 736, 754 (E.D.N.Y.1987) (severing trial of fourteen defendants). C. Prejudice from the Sheer Length of the Trial The risk of prejudice is also inherent in lengthy trials. If this trial proceeds with all fourteen defendants, the government estimates that the trial will consume four to five months of trial time. Each defendant will individually participate in each phase of the trial through counsel,[3] which includes jury selection, opening statements, cross-examination of government witnesses, objections, sidebars, motions in limine, closing arguments and jury instruction conference. See Andrews, 754 F.Supp. at 1173. The multiplication of each phase of the trial with the proposed fourteen defendants will only lengthen the trial and may result in a trial beyond the estimated five months despite the best efforts of this Court. Furthermore, the trial will be lengthened by the scheduling conflicts, absences, or tardiness that will in evitably occur with the large number of jurors, alternates, defendants, witnesses, attorneys, and court personnel that must be present in court each day. See United States v. Gray, 173 F. Supp. 2d 1, 9 (D.D.C. 2001) (granting severance in part because of the enormous task of coordinating the schedules of the seventeen defendants, their attorneys, the attorneys for the government, the marshals, the trial judge, the court reporter, the courtroom clerk, and other assorted personnel who must be involved with the trial on a daily basis). 1053 The sheer length of the trial may result not only in possible prejudice to the defendants and the jury as detailed above, but, as Judge Aspen so astutely observed in Andrews, also to the defense attorneys, the government, the taxpayers, and this Court. Defense attorneys are drawn away for an extended period from other clients and matters; the government must commit experienced prosecutors to a single trial indefinitely; this Court's other pending cases civil and criminal would be unfairly delayed; and the taxpayers would ultimately have to pay for the extended criminal trial, including the costs of prosecution, court costs, and the public cost of providing defense counsel to each defendant, including two defense counsel for each defendant against whom the government considered seeking the death penalty. See Andrews, 754 F.Supp. at 1172-75. Three federal appellate courts have voiced similar misgivings about trials of this magnitude. The United States Court of Appeals for the Second Circuit Court has attempted to address "the evident disadvantages which can occur in these mega-trials," by directing that where the prosecution's case is likely to require more than four months to present, the prosecutor must make an especially compelling justification for a joint trial of more than ten defendants. United States v. Casamento, 887 F.2d 1141, 1151-52 (2d Cir.1989). The Second Circuit recognized the need for trial judges to weigh the interests of the prosecution, the defendants, the jurors, the court, and the public. Id. at 1152. The Fifth Circuit echoed the concerns that "[e]xceedingly long trials impose substantial burdens on the trial court, attorneys, defendants, support personnel, and particularly on jurors." United States v. Ellender, 947 F.2d 748, 754-55 (5th Cir.1991) (citing. Casamento, 887 F.2d at 1151-52.) Likewise, the Ninth Circuit detailed the "indisputably staggering hardships" that "fall not only on the defendants, but on defense counsel, prosecutors, the jury, the district court, the court of appeals, and the taxpayers" in lengthy criminal cases. United States v. Baker, 10 F.3d 1374, 1390 (9th Cir.1993). In fact, contrary to the view that joint trials serve the goals of judicial efficiency and economy,[4] the Ninth Circuit has aptly noted that in such large trials, judicial economy will often be better served by severance because: (1) as the government proceeds through separate trials, its presentation becomes sharper and more streamlined so that later trials move more quickly; (2) with fewer defendants and defense counsel, there will be fewer sidebars and continuances; and (3) the court becomes more familiar with the case and the evidence, allowing more expeditious and efficient rulings. Baker, 10 F.3d at 1389-90. Furthermore, the Ninth Circuit opined that "[d]isclosure of the government's method and quality of proof may even benefit the prosecution by inducing additional guilty pleas from severed defendants." Id. at 1390. D. Procedural Complications The procedural complications resulting from these types of large-scale indictments also cannot be understated. For instance, 1054 this Court has been unable to conduct one general status hearing for all the defendants throughout the multiple pretrial proceedings in this case. Instead, the United States Marshal's Office has had to bring the defendants to court in two stages in order to divide the defendants into a safely guardable group. Our courthouse does not presently have any courtroom large enough to safely and effectively try a group of fourteen defendants. The resource and staffing requirements of the Marshal's Office to conduct such a large trial over an extended period are considerable and will surely affect many other criminal proceedings in this district. Moreover, even if we expended the exorbitant costs necessary to accommodate such a large trial, the fairness to the defendants of such a crowded proceeding is questionable. In evaluating the propriety of a trial of twenty-three defendants, the Fifth Circuit explained that the seating arrangements, while "suitable perhaps for enjoying an afternoon of football," were "of questionable propriety for a protracted trial." United States v. Ellender, 947 F.2d 748, 754-55 (5th Cir.1991). The Court described the courtroom scene as follows: Each defendant and attorney was limited to a small writing space crowded into a block-seating arrangement. Bleachers were installed. Seating charts were issued to jurors and trial participants to facilitate identification. A special intercom system of dubious efficacy was installed for `bench conferences.' When an attorney wished to address the court and fellow counsel privately, the jurors were treated to background music. However, this intended distraction proved futile, and counsel turned to the time-honored method of hushed voices and bowed heads. In sum, the courtroom assumed the appearance of an overcrowded classroom. Id.; see also United States v. Gray, 173 F. Supp. 2d 1, 10 (D.D.C.2001) (holding that physical limitations of courtroom in trial of seventeen defendants was one reason to sever, despite presumption favoring joinder); United States v. Shea, 750 F. Supp. 46, 50 (D.Mass.1990) (noting "added problem" that courthouse facilities for accommodating multi-defendant criminal trials are extremely limited). E. Severance Determination Severance determinations must be made in light of the unique circumstances and facts of each criminal indictment. In this case, after carefully reviewing and applying the numerous considerations and concerns set forth by Judge Aspen in Andrews and the dissent in Warner, this Court has decided to sever the trial. As stated above, a joint trial of fourteen defendants could not even physically be tried in one courtroom, much less fairly, in this case. A joint trial in this case has the potential to last longer than five-months, and all of the risks of prejudice from such long trials apply here. The facts of this case are complex: different defendants are named in four different conspiracies the RICO conspiracy, two murder conspiracies, and a drug conspiracy. Even with the clearest limiting instructions, it would be unreasonable to expect the jury to be able to separate out the evidence and connect it to the appropriate defendants for each different conspiracy. Additionally, the length of service for each jury will be reduced as the government's presentation of evidence will be more streamlined and focused in each trial, and the smaller number of attorneys will reduce the amount of argument and cross-examination. Accordingly, the government's proposed plan to try all fourteen defendants in one single consolidated trial would be prejudicial to the defendants and unworkable for all the 1055 reasons addressed in Andrews and Warner. VI. Severance Proposals In addition to the various motions to sever into individual trials, discussed above, several defendants and the government have put forth plans to sever the trial into groups of defendants. A. Severance into Three Trials Salazar proposes that the Court sever the case into three separate trials: (1) the alleged leadership (Benabe, Juarez, and Salazar); (2) the alleged direct participants in acts of violence (Delatorre, Crowder, Susinka, Perez, Hernandez, Guzman, and Handley); and (3) the alleged older members of the gang (Morales, Rodriguez, Barbosa, and Lechuga). (R. 507, Salazar Mot. to Sever at 3.) Salazar argues that this division will require the government to target testimony and witnesses necessary for a particular set of defendants. (Id.) This Court disagrees. Handley is not alleged to have been a direct participant in any acts of violence, and the Indictment arguable charges Morales and Barbosa with greater participation in direct acts of violence than Perez and Hernandez. Accordingly, the Court believes that this severance proposal would result in unnecessary duplication of the evidence presented and lengthen the total trial time. B. Proposals for Two Trials 1. Government's Suggested Severance While the government maintains that this Court should jointly try the fourteen defendants, it has proposed a way to sever the trial should this Court determine that severance is necessary, which this Court shall refer to as the government's "forced severance plan." (R. 461, Gov't Statement Regarding Severance.) The government's forced severance plan is based on chronology, in which the first trial would include the alleged top gang leaders (Benabe, Juarez, and Salazar), and the direct participants in the first four violent acts the government intends to prove (Delatorre, Crowder, Susinka, Perez, and Hernandez), which were committed between January and March 2002. (Id. at 3.) The second trial would include defendants who had no direct involvement in these first four acts and who became more active in the gang after gang meetings that occurred in June and July 2002 (Morales, Rodriguez, Barbosa, and Lechuga) and two alleged direct participants in acts committed after June 2002 (Guzman, Handley). (Id. at 4.) Defendant Guzman, while maintaining his desire to be tried alone, prefers the government's proposed severance to the other defendants' proposals. (R. 511, Guzman Resp. to Gov't Severance Proposal at 1.) Although the government will not commit to the likely scenario that evidence at either trial could be truncated as a result of the severance, the government contends that evidentiary overlap would be minimized by such a chronological division. 2. "Violent" Versus "Non-Violent" Offenses In his first of two severance proposals, Defendant Rodriguez requested that this Court sever the trial between defendants who were alleged to have committed at least six acts of violence and those who were alleged to have participated in two or less acts of violence, but not as the shooter. (R. 342, Rodriguez Mot. to Sever at 8.) This would place Rodriguez, Handley, Lechuga, Susinka, Horton, and Hernandez together in one group, and Juarez, Salazar, Delatorre, Benabe, Barbosa, and Morales in a second group. Rodriguez was undecided on which group to place Perez and Guzman, who were the alleged shooters in two acts of violence. (Id.) Alternatively, Rodriguez suggests severing the trial into 1056 three groups, by further dividing "nonviolent act allegation defendants" from defendants involved in "minimal acts of alleged violence." (Id. at 8-9.) The Court rejects Rodriguez's proposal. The fact that certain defendants did not participate in the alleged underlying crime themselves does not shield them from the allegations in this conspiracy case since "every member of a conspiracy is substantively culpable for other conspirators' acts within the scope of the conspiracy." Hoover, 246 F.3d at 1057-58; see also Goines, 988 F.2d at 759-60 ("Minor members of a conspiracy run the risk of prosecution for every crime committed in furtherance of the conspiracy, even crimes in which they did not directly participate."). Conversely, the alleged leaders of the conspiracy may have "controlled the conspiracy from afar." Wilson, 481 F.3d at 482-83 (holding that the fact that the defendant did not personally sell drugs "proves nothing" as he was charged as the leader who controlled the conspiracy); Hoover, 246 F.3d at 1057-58 (holding that convictions were valid whether or not defendant leaders personally committed the predicate offenses on which the convictions depended). 3. The Remaining Defendants' Severance Proposals In response to the government's forced severance plan, Handley and Rodriguez have filed additional severance proposals that would group Guzman, Benabe, Juarez, Salazar, Delatorre, Crowder, and Susinka in the first trial, and Handley, Rodriguez, Barbosa, Lechuga, Morales, Hernandez, and Perez in the second trial. (R. 500, Rodriguez Reply to Gov't Severance Plan at 2; R. 503, Handley Resp. to Gov't Severance Plan at 3.) Defendant Barbosa adopted Handley's proposed grouping of the defendants. (R. 509, Barbosa Reap. to Gov't Severance Plan.) This division is the same as Salazar's original severance proposal, in which Salazar sought to sever the trials between those defendants originally charged in capital counts, and the noncapital defendants. (R. 457, Salazar Pos'n Statement at 2.) Benabe adopted Salazar's original severance proposal. (R. 485, Benabe Mot. to Adopt Salazar's Severance Proposal; R. 513, Benabe Resp. to Gov't Severance Plan.) Handley argues that the government's "forced" severance plan, joining Guzman with the second group of defendants, would prejudice defendants Handley, Rodriguez, Barbosa, Lechuga, and Morales because unlike Guzman, the other defendants are not alleged to be "actual shooters or murderers." (R. 503, Handley Resp. to Gov't Severance Plan at 2.) Handley argues that Guzman's alleged conduct is "roughly equivalent" to the other group of defendants. (Id. at 2-3.) While this analysis misrepresents the Indictment Morales and Barbosa are charged with committing multiple murders as part of the RICO conspiracy count this proposed severance plan will best ensure fairness to each defendant and alleviate the particular concerns of these mega-trials. 4. The Court's Severance Plan This Court has carefully considered each of the parties' proposed severance plans. We have also reviewed the Indictment to see how defendants could, or could not, be logically tried together according to the offenses with which they are charged so as to preserve the judicial economy inherent in group trials as much as possible. This Court has attempted to make a division which satisfies the principal concerns of efficiency and fairness. See, e.g., Kennedy, 819 F.Supp. at 1517. The Court believes that the division into two groups of equal size, as proposed by four of the defendants, best achieves those objectives. Accordingly, the defendants will be grouped as follows. Guzman, Benabe, 1057 Juarez, Salazar, Delatorre, Crowder, and Susinka will be tried together; and Handley, Rodriguez, Barbosa, Lechuga, Morales, Hernandez, and Perez will be tried together. This division groups the alleged leaders of the conspiracy together in one trial, and the less major players together in a second trial. Based on the Indictment and the government's representations in its briefs, it appears that Guzman played a larger role in the alleged conspiracy than the defendants in the second group. Placing Guzman with the leaders of the conspiracy will better serve the goals of efficiency and fairness than placing Guzman with the less major players, even though the Indictment charges Guzman with specific offenses occurring after the gang meetings in June and July of 2002. This division also comes close to achieving the temporal overlap in offenses sought by the government. Although Perez and Hernandez, whom the government grouped with the alleged leaders of the conspiracy, are alleged to have participated in crimes before the June and July 2002 gang meetings, their participation in the earlier crimes is more minor than the leading participants in the conspiracy. In addition, the one non-conspiracy charge against Perez Count Eight alleges that the offense took place in May 2003, thus overlapping with offenses charged against some of the older gang members who became more involved in the gang after the June and July 2002 gang meetings. In order to best satisfy the defendants' rights to a speedy trial, this Court will seek to have the two trials in this case proceed simultaneously by using the services of a volunteer judge. This Court also seeks to minimize the burden on witnesses who must testify at both trials. By proceeding simultaneously rather than consecutively, the concern that a witness who testifies at the first severed trial may be intimidated or otherwise prevented from testifying in the second trial is reduced. More importantly, proceeding in this manner will avoid any further delays for the detained defendants, who are presumed innocent. Additionally, as previously announced in open court, this Court will attempt to minimize the remaining mega-trial prejudices identified in Andrews and in this opinion by using time limits and other trial procedures which should enhance the efficiency of the trial. These procedures are outlined in the order attached to this opinion as Attachment A. CONCLUSION While each individual indictment and case is different, these mega-indictments should not be lightly brought by the U.S. Attorney's office. "[A] prosecutor has an obligation to use some measure of restraint and to consider the effect of a sizable indictment on the integrity of the resulting trial." Andrews, 754 F.Supp. at 1179. This is still an important concern, even seventeen years after Andrews. This Court fervently hopes that the U.S. Attorney's office will seriously consider the issues raised by this opinion before joining more than ten individuals in one indictment. Although we have found that a joint trial will not prejudice defendants in a traditional sense, we are nevertheless seriously concerned by the systematic heavy burden that a fourteen-defendant case places on the criminal justice system and most importantly, on the jury system and jury selection process. Accordingly, as explained above, this Court will sever the trial into two groups: Guzman, Benabe, Juarez, Salazar, Delatorre, Crowder, and Susinka in one trial; and Handley, Rodriguez, Barbosa, Lechuga, Morales, Hernandez, and Perez in the other trial. This Court will seek to have the two separate 1058 trials proceed simultaneously to maximize fairness and efficiency. Further, Benabe's motion to sever is granted, for the reasons identified herein. (R. 347, Benabe Mot. to Sever.) Benabe's trial on the severed weapons charges will proceed before this Court after his, joint trial. Defendant Miguel Martinez remains a fugitive and is hereby severed because he has not been arrested and has not voluntarily surrendered in time to effectively participate in this trial. Martinez's trial will proceed before this. Court within a reasonable period of time after he is arrested or self-surrenders. A severance ruling by definition is a conditional ruling that could change as the trial begins to take form and evidence is presented. This Court will continually evaluate the propriety of joinder among the defendants. See, e.g., Gray, 173 F.Supp.2d at 18 (citing Schaffer v. United States, 362 U.S. 511, 516, 80 S. Ct. 945, 4 L. Ed. 2d 921 (1960)). Accordingly, Defendants may renew their individual requests for severance as the trial unfolds, and the Court will reconsider the issue as appropriate. Proceedings at Trial Given the number of defendants and the parties' estimates concerning the length of time required for the trial of this case, it is appropriate that the Court establish the following procedures to be followed, and applied during trial: 1. On or before December 3, 2007, the government will be required to file a written request for the number of trial hours it will request to try its case-in-chief. Thereafter, on December 14, 2007, the defendants will be required to file a similar request. The Court will then impose reasonable, non-arbitrary time limits for the trial of this case. See United States v. Vest, 116 F.3d 1179, 1186-88 (7th Cir. 1997). 2. This Court will hold an evidentiary hearing on January 11, 2008, to resolve all disputed issues of evidence, including admissibility of specific co-conspirator statements against all defendants. Counsel for all parties are requested to exchange trial exhibit lists on or before January 7, 2008. To avoid duplication of effort, the defendants' attorneys from each trial shall coordinate and attempt to file, to the extent possible, a joint exhibit list. Counsel for all parties ATTACHMENT A are hereby directed to file any motions in limine regarding disputed evidentiary matters no later than December 18, 2007. No motions in limine should be filed without a statement that an unsuccessful good faith attempt was made to reach agreement with opposing counsel regarding the disputed evidentiary matter. The Court will hot entertain any argument or evidentiary objections in front of the jury during the trial if the disputed evidentiary issue is a matter that reasonably should have been raised by counsel during the Court's evidentiary hearing of January 11, 2008. The Court will attempt to resolve as many disputed evidentiary matters as possible on January 11, 2008, to avoid and minimize evidentiary problems during the trial. 3. Counsel shall submit one week before trial, in writing, suggested voir dire questions to be asked of the jury panel by the Court. All voir dire examination will be conducted by the Court pursuant to Federal rule of Criminal Procedure 24(a). 4. With respect to the selection of the jury, the defense may have one additional peremptory challenge for each defendant on trial at the time the case is called (up to a maximum of ten additional challenges), provided all defendants agree that the government 1059 may have a proportionate increase (60% of total defense challenges); otherwise the defense shall have ten peremptory challenges and the government six in accordance with Fed.R.Crim.P. 24(b), The Court will announce, prior to the selection of the jury, the number of alternate jurors to be selected and the number of peremptory challenges to be allowed under Rule 24 for selection of the alternates. 5. The attention of all counsel is directed to this Court's standing order of March 2, 2006, which concerns matters of etiquette, decorum, and procedure that will govern during trial. Pursuant to that order, the trial of this case will be held between the hours of 9:30 a.m. and 4:30 p.m., Monday through Thursday. On Fridays, however, the trial will proceed from 9:00 a.m. to 1:00 p.m., without a lunch break. The Court will recess for the weekend. This will allow the jury members, attorneys, and the Court to attend to other matters during this trial. 6. Defense counsel are directed to elect and designate one of their number as "lead" counsel for the purpose of announcing challenges during jury selection and otherwise acting as liaison counsel in dealing with government attorneys or the Court during the trial. 7. Defense counsel from each trial are also directed to confer and designate to the Court at the time of trial the sequence in which they wish to be recognized during trial for witness purposes. In the absence of agreement, counsel will be recognized in the order in which the defendants are named in the Indictment. During the progress of the trial itself, counsel may alter the usual sequence of recognition by handing up a list of those lawyers desiring to cross-examine each government witness expected to be called that day, and the sequence in which they wish to be recognized. 8. Once the case is called for trial, any objection, motion, or other application for relief made by any defense counsel orally or in writing shall be deemed adopted and joined by every other defendant, respectively, without announcement by counsel to that effect, and the rulings of the Court shall be deemed applicable to each defendant unless otherwise stated at the time the ruling is made. Accordingly, it will be unnecessary and improper for counsel to rise to "join in" an objection or motion. Counsel should rise to be heard only for the purpose of expressly opting out of an objection or motion if that is his or her position. 9. Government counsel is directed to deliver to defense counsel each evening, if not earlier, a list of witnesses the government anticipates calling the next trial day. All remaining Jencks Act or Brady material not previously produced pertaining to each witness on the list should also be delivered at that time. The next day, before the trial begins, defense counsel shall state the desired order of recognition and be ready to cross-examine without delay. Nevertheless, the government will not be absolutely bound by the list of witnesses because the prosecution may, in good faith, desire to change an intended order of proof, or it may become necessary to call a witness out of turn. If the government does not wish to identify a witness until he or she is called because of security concerns, this should be brought to the Court's attention in camera when the witness list excluding those names is delivered to defense counsel. 10. Any counsel desiring daily or expedited transcripts during trial should make immediate arrangements with the court reporter and should inform the Court and other counsel of such intentions. 11. Counsel are specially directed to Section IV of this Court's standing trial 1060 order, which governs the making and listing of tangible or documentary exhibits before trial. 12. All witnesses called to testify by any party at trial will be subject to the control of counsel who caused them to be served with a subpoena or who secured their voluntary appearance. Accordingly, upon completion of the testimony of a witness, it shall not be necessary or appropriate to inquire of the Court whether that witness may be excused; counsel may excuse the witness. If other counsel wish to have any witness available for recall later, and have not made prior arrangements for the appearance of the witness through service of a subpoena or by voluntary agreement, it will be the responsibility of that counsel to make an announcement at the time the witness steps down that he should remain in the environs of the Court for a reasonable time to permit such counsel an opportunity to secure and serve a subpoena upon the witness and assume responsibility for his or her per diem and other expenses as provided by government rule or statute. 13. Except for a defendant-witness (because of Sixth Amendment implications), counsel calling a witness to testify should have no further discussions with that witness concerning the case or any aspect of his testimony after the witness has been tendered for cross-examination and until such time as the witness has been tendered back for redirect examination. At all other times, within the bounds of governing ethics and the law, counsel may pursue their discussions with witnesses during the trial. 14. Given the number of lawyers involved, bench conferences are impractical and the flow or continuity of the case may not permit a side bar each time an evidentiary problem is presented. Counsel will be required to state the legal basis for their objections without elaboration or argument (unless invited), and the Court may rule on the objection without additional discussion except in the most doubtful or critical areas. For purposes of "protecting the record" and assisting the Court of Appeals, counsel may explain or the Court may amplify its ruling on the record after the jury has been excused for a break, lunch, or for the day. 15. Counsel for the government shall submit its proposed jury instructions for each trial to the Court and to defendants' counsel two weeks prior to trial. Thereafter, counsel for the defendants in each trial shall meet and submit, to the extent possible, a set of consolidated defense instructions to the Court one week prior to trial. NOTES [1] Although Susinka is currently represented by counsel, he filed his motion for severance and a separate trial pro se. (R. 403.) The other defendants filed their motions to sever through counsel. [2] Defendant Juarez was a fugitive until he was recently arrested in April of 2007. [3] It is noteworthy that defendant Susinka has filed a pending motion to dismiss his courtappointed counsel and represent himself without the assistance of any counsel. In this Court's experience, this proposed action may unduly extend the trial. [4] See, e.g., United States v. Wilson, 481 F.3d 475, 482 (7th Cir.2007) (noting preference that co-conspirators be jointly tried, particularly when they were indicted together); United States v. Hardin, 209 F.3d 652, 664 (7th Cir.2000) (holding that in most conspiracy cases, the economies of a single trial outweigh any danger of prejudice); United States v. Stokes, 211 F.3d 1039, 1042 (7th Cir.2000) (observing that in general, the "joinder of offenses reduces the waste of precious judicial and prosecutorial time in the already overburdened federal judicial system and reduces the burdens on witnesses from testifying at multiple trials").	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519178/	806 S.W.2d 345 (1991) Lynda Jean WEIBEL, Individually and as Trustee for the Heirs and Next of Kin and on Behalf of all Statutory Beneficiaries of Scott Edward Weibel, Deceased, Appellant, v. MARTIN INDUSTRIES, INC., Appellee. No. 2-90-075-CV. Court of Appeals of Texas, Fort Worth. March 27, 1991. Rehearing Overruled April 30, 1991. Wells, Williford & Felber, and Mike Felber, Fort Worth, for appellant. Fulbright & Jaworski, and Cynthia A. Leiferman, Dallas, for appellee. Before FARRIS, MEYERS and DAY, JJ. *346 OPINION FARRIS, Justice. Weibel appeals a summary judgment in a wrongful death case. The facts are undisputed: Weibel's husband, Scott Edward Weibel, was killed on October 30, 1987 when struck by a truck; in January 1987 the Texas Secretary of State had issued a certificate dissolving Martin Industries, Inc. (Martin); Weibel sued Martin and other defendants on October 26, 1989, alleging her husband was killed when struck by equipment manufactured by Martin. Martin moved for summary judgment contending that it was not liable for Weibel's damages because they were the result of conduct occurring after Martin was dissolved and there was no cause of action for postdissolution claims. Weibel raises two points on appeal arguing: (1) article 7.12 of the Texas Business Corporation Act provides a remedy for post-dissolution claims; and alternatively, (2) an interpretation of 7.12 excluding any remedy for post-dissolution claims violates the open courts guarantee of the Texas Constitution. We overrule both points of error holding: (1) article 7.12 does not provide any remedy for post-dissolution claims; and (2) because this interpretation involves no restriction of an established right to redress, it does not violate the constitutional open courts guarantee. The summary judgment is affirmed. TEX.BUS.CORP.ACT ANN. art. 7.12 (Vernon 1980) provides that a dissolved corporation may survive for three years for specific purposes including the survival of a claim against it which was incurred before dissolution. Article 7.12 was amended in 1987, effective August 31, 1987. We overrule Weibel's first point because the supreme court has held that article 7.12 does not provide a remedy for post-dissolution claims. See Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 553 (Tex. 1981). In overruling her first point we reject Weibel's argument urging us to adopt the rationale of the Hunter dissent. Id. at 553. She also argues the 1987 amendment of article 7.12 extended the relief afforded pre-dissolution claimants to those with post-dissolution claims effectively reversing Hunter. We disagree and hold that the 1987 amendment of article 7.12 did not extend its remedy to post-dissolution claims because it only provided for the survival of any right or claim existing or any liability incurred before dissolution and did not provide for the survival of post-dissolution claims. In support of her second point Weibel argues that an interpretation of article 7.12 which denies the survival of postdissolution claims violates the open courts doctrine. See TEX. CONST, art. I, sec. 13. It is her argument that if article 7.12 does not include post-dissolution claims, then it created an impossible condition upon which her claim was contingent: a requirement that she make a claim against Martin before it was dissolved, and before the death of her husband and her resulting loss. See Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984). Legislation violates article I, section 13 and is a denial of due process if its effect is to unreasonably abrogate a recognized right of recovery without substituting other reasonable remedies. We hold there is no violation of article I, section 13 because Weibel's claim against a dissolved corporation did not involve an established right to redress of any injury. The right to hold a dissolved corporation liable for a post-dissolution claim has never been recognized in Texas, and no statutory grant of such relief has ever existed or become an accustomed right under Texas law. Article 7.12 does not abrogate a well-established right to a cause of action and, therefore, does not violate article I, section 13. The second point is overruled. The judgment of the trial court is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519198/	806 S.W.2d 589 (1991) Robert W. DILLARD and Diane Dillard, Appellants, v. AUSTIN INDEPENDENT SCHOOL DISTRICT, Appellee. No. 3-88-241-CV. Court of Appeals of Texas, Austin. March 20, 1991. 591 Bill Whitehurst and Scott Ozmun, Austin, for appellants. Larry F. York, Austin, for appellee. Before POWERS, GAMMAGE and JONES, JJ. ON MOTION FOR REHEARING PER CURIAM. Our opinion of December 19, 1990, is withdrawn and the following is substituted therefor. At issue in this cause is the extent of a school district's governmental immunity and its liability for initiating condemnation proceedings. The district court granted a motion for summary judgment based on governmental immunity and the absence of a taking under article I, section 17 of the Texas Constitution. We will affirm the judgment of the district court.[1] In 1984 the Austin Independent School District (AISD) board of trustees voted to negotiate to purchase or condemn twentyfour acres of land owned by Robert W. Dillard and Diane Dillard (the Dillards). This land was to be used for a new high school in south Austin. The Dillards were amenable to selling their land to AISD and platted the land and obtained various surveys and permits that were necessary in order to develop the property, allegedly spending $151,000.00 of their own money in the process. AISD later purchased a different tract of land for the school from Gary Bradley in February 1986. The Dillards sued for damages in excess of three million dollars for both their expenses in developing the property and for diminution in value of the land, alleging causes of action for breach of contract, promissory and equitable estoppel, breach of the duty of good faith negotiation, slander of title, fraud, gross negligence, and a taking under article I, section 17 of the Texas Constitution. The trial court found that: (1) no contract existed between the Dillards and AISD; (2) the doctrines of promissory and equitable estoppel are inapplicable because AISD is protected by governmental immunity; (3) governmental immunity barred causes of action based on fraud, slander of title, gross negligence, and breach of the duty of good faith negotiation; and (4) the Dillards's property was 592 not taken so as to invoke the protection of article I, section 17 of the Texas Constitution. The Dillards, in four points of error, argue that governmental immunity does not bar claims based on: (1) promissory and equitable estoppel; (2) a taking under article I, section 17 of the Texas Constitution; (3) fraud; and (4) breach of the duty of good faith negotiation. When a defendant moves for summary judgment on the basis of an affirmative defense such as governmental immunity, it must conclusively prove all essential elements of that defense. Smiley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). AISD, thus, had the burden of showing that no genuine issue of material fact existed and that it was entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). 1. GOVERNMENTAL IMMUNITY In their first point of error, the Dillards claim the trial court erred in holding that governmental immunity barred the application of the doctrines of promissory and equitable estoppel against AISD. We agree with the trial court. A. General Principles Governmental immunity consists of two basic principles of law.[2] First, the state as sovereign is immune from suit without consent even though there is no dispute regarding the state's liability. Missouri Pac. R.R. v. Brownsville Navigation Dist, 453 S.W.2d 812, 813 (Tex.1970); see, e.g., Hosner v. De Young, 1 Tex. 764, 769 (1847); Board of Land Comm'rs v. Walling, Dallam 524, 525-26 (Tex.1843). The doctrine bars a suit against the state unless the state has expressly given its consent to be sued. See, e.g., Missouri Pac. R.R. at 814 (statute creating a navigation district that states that the district can "sue and be sued in all courts of this state" is sufficient consent to sue the state); Texas Tort Claims Act, Tex.Civ.Prac. & Rem.Code Ann. § 101.025 (1986) (person having a claim under the Tort Claims Act is granted permission to sue) [hereinafter Tort Claims Act]; Tex.Civ.Prac. & Rem.Code Ann. §§ 107.001-005 (Supp.1991) (legislative resolution granting permission to sue the state). Second, the state has immunity from liability even though the state has consented to be sued. Missouri Pac. R.R., 453 S.W.2d at 813; State v. Isbell, 127 Tex. 399, 94 S.W.2d 423, 424 (1936); Tex.Civ.Prac. & Rem.Code Ann. § 107.002(b) (Supp.1991) (legislative resolution granting permission to sue the state does not waive immunity from liability); see, e.g., Tort Claims Act §§ 101.021, .023, .025(a), .107 (1986 & Supp. 1991). An important corollary is that the state is generally not liable for the acts of public servants. E.g., Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976); Whitfield v. City of Paris, 84 Tex. 431, 19 S.W. 566, 567 (1892) (doctrine of respondeat superior does not apply against the state); City of Galveston v. Posnainsky, 62 Tex. 118, 125 (1884); Tex.Civ.Prac. & Rem.Code Ann. §§ 104.001-.008 (1986 & Supp.1991) (state liability for conduct of public servants). A critical exception, however, is that the state waives its immunity from liability when it contracts: It is well settled that so long as the state is engaged in making or enforcing laws, or in the discharge of any other governmental function, it is to be regarded as a sovereign, and has prerogatives which do not appertain to the individual citizen; but when it becomes ... a party to a contract with a citizen, the same law applies to it as under like conditions governs the contracts of an individual. Fristoe v. Blum, 92 Tex. 76, 45 S.W. 998, 999 (1898); see State v. Elliott, 212 S.W. 695, 698 (Tex.Civ.App.1919, writ ref'd). The state is still immune from suit sounding in contract, however, even though the state has consented to liability by the act of contracting. Elliott, 212 S.W. at 698 ("Because of her sovereignty, the state is not 593 amenable to the processes of courts, and cannot be sued therein, without her consent, but this in no way detracts from the proposition that she may be liable."); see, e.g., Miller v. Hood, 536 S.W.2d 278, 284 (Tex.Civ.App.1976, writ ref'd n.r.e.); Townsend v. Memorial Medical Center, 529 S.W.2d 264, 267 (Tex.Civ.App.1975, writ ref'd n.r.e.)[3]; Ferguson v. Johnson, 57 S.W.2d 372, 376 (Tex.Civ.App.1933, writ dism'd). The Fristoe doctrine also applies to deeds and leases. Rutherford Oil Corp. v. General Land Office, 776 S.W.2d 232, 235 (Tex.App.1989, no writ). Although the justifications for governmental immunity have long been criticized, the supreme court has said that the waiver of governmental immunity is a matter properly addressed to the legislature, not the courts. Lowe, 540 S.W.2d at 298. B. The Governmental/Proprietary Distinction The distinction between municipalities and other governmental units is fundamental to Texas governmental-immunity jurisprudence. In City of Galveston v. Posnainsky, the supreme court first carved out an exception to governmental immunity by defining a municipality's liability in terms of its governmental and proprietary functions. In writing the Posnainsky opinion, Justice Stayton set out the basis for the distinction between governmental and proprietary functions as follows: In so far as a quasi corporation exercises powers exclusively public in their character, forced upon it without its consent, simply because the state can thus, through such local agencies, more easily and effectively discharge duties essentially its own, it is but proper that no action should be maintained against it for the negligence, or even misfeasance, of its officers, unless the action be given by an expression of the same sovereign will which arbitrarily imposed the duty. .... . It would seem that, in so far as municipal corporations of any class, and however incorporated, exercise powers conferred on them for purposes essentially publicpurposes pertaining to the administration of general laws made to enforce the general policy of the state, they should be deemed agencies of the state, and not subject to be sued for any act or omission occurring while in the exercise of such power, unless, by statute, the action be given; that, in reference to such matters, they should stand as does sovereignty, whose agents they are, subject to be sued only when the state, by statute, declares they may be. .... . In so far, however, as they exercise powers not of this character, voluntarily assumedpowers intended for the private advantage and benefit of the locality and its inhabitants,there seems to be no sufficient reason why they should be relieved from that liability to suit and measure of actual damage to which an individual or private corporation exercising the same powers for a purpose essentially private would be liable. Posnainsky, 62 Tex. at 125, 127, quoted in City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753, 755 n. 3 (1960). Although courts in the past have differed on the scope of governmental immunity and on which subdivisions of the state may exercise proprietary functions, it is now the settled law of this state that governmental immunity extends to all agencies, political subdivisions, and other institutions which are derived from the state constitution and laws. See Tort Claims Act § 101.001(2) (Supp.1991).[4] The 594 only exception to the general rule of governmental immunity is that a municipality is not immune for its proprietary functions, a theory first expressed in Posnainsky. See Tort Claims Act § 101.0215 (Supp. 1991). C. Estoppel The supreme court has said that when a governmental unit is exercising governmental powers it is not subject to estoppel. Leeco Gas & Oil Co. v. County of Nueces, 736 S.W.2d 629, 630 (Tex.1987); City of Hutchins v. Prasifka, 450 S.W.2d 829, 835 (Tex.1970); see City of San Angelo v. Deutsch, 126 Tex. 532, 91 S.W.2d 308, 310 (1936). This is a corollary to the governmental-immunity rule that the state is not liable for the acts of public servants. See e.g., Lowe, 540 S.W.2d at 298; Whitfield, 19 S.W. at 567; Posnainsky, 62 Tex. at 125; Tex.Civ.Prac. & Rem.Code Ann. §§ 104.001-008 (1986 & Supp.1991) (state liability for conduct of public servants). The supreme court in Deutsch explained the rationale for the state's immunity from estoppel as follows: Estoppel when applied against a city imposes loss upon it or deprives it of a right which it would have but for the act constituting the ground of estoppel and thus is in effect like liability for a negligent act. In both cases conflict arises between the rights or interests of the public and those of the individual. The rule is that when such conflict arises the rights or interests of the individual must yield. This is necessary because the city's public or governmental business must go forward, unimpeded by the fault, negligence or frailty of those charged with its administration. A court which holds that a city is not liable in damages for injuries suffered from the negligence of its officer or agent engaged in the performance of a governmental function cannot consistently hold that the city is estopped by the act of its officer or agent engaged in the performance of a governmental function, unless there are peculiar facts which give rise to other equities than loss or injury to the individual who has relied upon the act of the officer or agent. Deutsch, 126 Tex. at 536 (text differs from text in Southwestern Reporter), 91 S.W.2d at 310 (punctuation as in 126 Tex. 532, 536, 91 S.W.2d 308). Deutsch also stated that a city may be estopped even when it is acting in its public capacity if it has received or accepted benefit from the transaction. Deutsch, 91 S.W.2d at 311-12. D. The Current Controversy An independent school district is an agency of the state which carries out only governmental functions, and, consequently, is entitled to governmental immunity. Braun v. Trustees of Victoria Indep. School Dist, 114 S.W.2d 947, 949-50 (Tex.Civ.App.1938, writ ref'd) (holding that Tex.Const.Ann. art. VII, § 1 (1955) establishes the matter of public education as a governmental function for all purposes).[5] AISD is not immune from suit, however, as the legislature has consented to suits against independent school districts. Tex. Educ.Code Ann. § 23.26(a) (1987) ("The trustees ... in the name of the school district may ... sue and be sued...."). The issue then is whether AISD is immune from liability from a claim based on promissory and equitable estoppel. To support their position, the Dillards cite us to the supreme court's opinion in Prasifka. In Prasifka the court said that "a municipality may be estopped in those cases where justice requires its application, and there is no interference with the 595 exercise of its governmental function. But such doctrine is applied with caution and only in exceptional cases where the circumstances clearly demand its application to prevent manifest injustice." Prasifka, 450 S.W.2d at 836. We do not dispute this. This estoppel exception cannot be applied to AISD, however, because the exception is limited to municipalities. The supreme court in Deutsch clearly linked the use of estoppel against a governmental unit to the proprietary actions of a municipality. Because a school district has no proprietary functions, we conclude that estoppel cannot apply to AISD.[6] We are aware that our holding that estoppel can apply only to governmental units that exercise proprietary functions, i.e., municipalities, runs contrary to opinions of some of our sister courts of appeals. See, e.g., Arrington v. County of Dallas, 792 S.W.2d 468, 472 (Tex.App.1990, writ denied); Clear Lake City Water Auth. v. Winograd, 695 S.W.2d 632, 640 (Tex.App.1985, writ ref'd n.r.e.)[7]; league Indep. School Dist. v. Mason, 233 S.W.2d 176, 180 (Tex.Civ.App.1950, writ ref'd n.r. e.). Our research reveals that all of the supreme court cases addressing this issue, however, involve either municipalities or the existence of a contract, and we decline to deviate from the established rule immunizing a governmental unit other than a municipality from estoppel. On rehearing, the Dillards argue that the supreme court's recent opinion in Bowman v. Lumberton Independent School District extends the Prasifka estoppel exception to independent school districts. Bowman, 801 S.W.2d 883 (Tex. 1990). We disagree. In Bowman the supreme court stated, "It is true that the general rule is that `when a unit of government is exercising its governmental powers, it is not subject to estoppel,' subject to an exception that municipalities and similar local units of government `may be estopped in those cases where justice requires its application, and there is no interference with the exercise of its governmental functions.'" Bowman, 801 S.W.2d at 888 (citing Prasifka, 450 S.W.2d at 836) (emphasis added). The court, however, did not hold that a school district was subject to the Prasifka exception, but rather that the school district was subject to estoppel because of the existence of a contract. We believe that the Bowman decision is an extension of the longstanding doctrine that the state is not immune from liability when it contracts. See Fristoe, 45 S.W. at 999.[8] We decline to interpret Bowman as extending the Prasifka estoppel exception because we do not believe the supreme court has overruled its previous opinions in Deutsch and Posnainsky. Our understanding of the Texas common law of governmental immunity is that only municipalities 596 possess both governmental and proprietary functions.[9][10] Because we believe that Braun, which states that an independent school district carries out only governmental functions, is still the law, we conclude that an independent school district is not a local unit of government similar to a municipality. Point of error 1 is overruled. II. ARTICLE I, SECTION 17 TAKING In their second point of error, the Dillards contend that the trial court erred in holding that: (1) governmental immunity barred their cause of action under article I, section 17 of the Texas Constitution; and (2) the Dillards's property was not "taken" as required by article I, section 17. Tex. ConstAnn. art. I, § 17 (1984). AISD does not dispute that article I, section 17 constitutes a waiver of governmental immunity for the taking, damaging, or destruction of property for public use. Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980). The constitution states that "[n]o person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made." The Dillards do not allege that their property was "taken," but rather that it was "damaged" by AISD's adoption of the resolution authorizing negotiation for purchase or condemnation of the property, which allegedly rendered the land useless for other purposes and diminished its value. It is the settled rule that a direct physical invasion of property is not required under article I, section 17 to entitle an owner to compensation. DuPuy v. City of Waco, 396 S.W.2d 103, 108 (Tex. 1965). However, the mere initiation of condemnation proceedings is but an incidental damage that is not compensable as a taking or damage even though it may interfere with the marketability of the property. See City of Houston v. Biggers, 380 S.W.2d 700, 704 (Tex.App.1964, writ ref'd n.r.e.), cert, denied, 380 U.S. 962, 85 S. Ct. 1105, 14 L. Ed. 2d 153 (1965), cited with approval in City of Austin v. Teague, 570 S.W.2d 389, 392 (Tex.1978). Point of error 2 is overruled. III. FRAUD In their third point of error, the Dillards claim the trial court erred in holding that governmental immunity barred their claim for fraud. At first glance, this point appears to lack merit. The state has immunity from liability unless that immunity is waived. E.g., Missouri Pac.R.R., 453 S.W.2d at 813; Walling, Dallam at 525-26. The Dillards have failed to show any such waiver by the state. See Tort Claims Act § 101.057 (1986) (Act does not apply to intentional torts). However, there does exist a body of law regarding the acts of public servants that may account for the Dillards's belief that governmental immunity does not bar a claim for fraud. It has long been the law in Texas that "acts of officials of the state which are not lawfully authorized are not acts of the State, and an action against the officials, by one whose rights have been invaded 597 or violated by such acts and who seeks determination or protection of such rights, is not a suit within the rule of immunity of the State from suit." Oxford v. Hill, 558 S.W.2d 557, 560 (Tex.Civ.App.1977, writ refd) (emphasis original).[11] The Dillards cannot rely on this line of cases, however, because they have sued the school district itself, rather than the trustees in their individual capacities. See Edinburg Consol. Indep. School. Dist. v. St. Paul Ins. Co., 783 S.W.2d 610, 612 (Tex.App.1989, writ denied). There is case law, including cases from this Court, which states that actions of a governmental unit that are illegal, wrongful, or beyond statutory authority are not immunized by governmental immunity, and the suit is not one against the state.[12] We believe that much of the confusion in this area stems from a misinterpretation of two supreme court cases, Director of the Department of Agriculture & Environment v. Printing Industries Association, 600 S.W.2d 264 (Tex.1980), and Texas Highway Commission v. Texas Association of Steel Importers, Inc., 372 S.W.2d 525 (Tex.1963). Printing Industries was a suit against public servants, not a governmental unit, in which the court of civil appeals held that "the suit was maintainable as an action against the state officials acting outside their lawful authority, and that invasion of the rights of plaintiffs was alleged with sufficiency to maintain the suit." Printing Indus. Ass'n v. Director of the Dept. of Agric. & Env't, 588 S.W.2d 849, 852 (Tex. Civ.App.1979), rev'd on other grounds, 600 S.W.2d 264 (Tex.1980) (emphasis added). The supreme court reversed the court of civil appeals on the issue of the interpretation of article XVI, section 21 of the Texas Constitution, not on the issue of governmental immunity. Tex.Const.Ann. art. XVI, § 21 (Supp.1991). In fact, the supreme court said the court of appeals correctly stated the law concerning a suit by an entity or person whose rights have been violated by the unlawful action of a public servant. Printing Industries, 600 S.W.2d at 265. Steel Importers was a declaratory judgment action concerning an order of the State Highway Commission that required all materials used in highway construction to be manufactured in the United States. The supreme court held that the order violated the competitive bidding statute, 1933 Tex.Gen.Laws, 1st C.S., ch. 103, § 1, at 286 [Tex.Rev.Civ.Stat. 6674h, since amended]. Although only listed as "et al." in the opinions of both the supreme court and the court of civil appeals, a review of the record reveals that the members of the Highway Commission, Herbert C. Petry, Jr., C.F. Hawn, and Hal Woodward, as well as the state highway engineer, D.C. Greer, were sued individually in addition to the Commission itself. The court of civil appeals stated, "We believe that appellees acted beyond their statutory authority and 598 that the suit is not against the State as sovereign to impose liability or the performance of a contract." Texas Ass'n of Steel Importers, Inc. v. Texas Highway Comm'n, 364 S.W.2d 749, 752 (Tex.Civ. App.), affd, 372 S.W.2d 525 (Tex.1963). To the extent that the court of civil appeals was referring to the highway commissioners and engineer, its opinion is wholly consistent with State v. Lain, which held that unlike the state, public servants sued in their official capacity are not automatically entitled to the defense of governmental immunity. Lain, 162 Tex. 549, 349 S.W.2d 579, 582 (1961). The question was apparently not raised in the supreme court whether the Commission, as opposed to the commissioners and engineer, was entitled to a separate plea in abatement based on governmental immunity, and we do not read the supreme court's opinion in Steel Importers to overrule either: (1) the cases cited therein, i.e., Lain, 349 S.W.2d 579; Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709 (1945); and State v. Epperson, 121 Tex. 80, 42 S.W.2d 228 (1931); or (2) Griffin v. Hawn, 161 Tex. 422, 341 S.W.2d 151 (1960), a case that also involved the highway commissioners and engineer. After careful review of the case law, we believe that the better view is expressed in Bagg v. University of Texas Medical Branch, 726 S.W.2d 582 (Tex.App. 1987, writ ref'd n.r.e.). The Bagg court held that when a person sues over the violation of his rights resulting from the unlawful acts of public servants, the plaintiff must bring the action against some individual in authority at the governmental unit and not against the governmental unit itself. Id. at 584-85 & n. 2. This result is dictated by common sense. If the governmental unit is entitled to governmental immunity, a suit against the governmental unit is a suit against the State of Texas. Litigants may not circumvent the admittedly harsh barrier of governmental immunity by simply suing an agency or political subdivision of the state, rather than the state itself. Allowing suits directly against a governmental unit would result in the wholesale abrogation of the doctrine of governmental immunity, a policy decision beyond the purview of this Court. Requiring a lawsuit against a public servant to be brought against the public servant personally is not a complete fiction.[13] The Texas cases are originally based on rulings of the United States Supreme Court, which stated the policy reasons as follows: [T]he use of the name of the State to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of and one which does not affect the State in its sovereign or governmental capacity. It is simply an illegal act upon the part of a state official in attempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. Ex parte Young, 209 U.S. 123, 159, 28 S. Ct. 441, 454, 52 L. Ed. 714 (1908). On a more practical level, requiring the suit to be brought against a public servant preserves the state's immunity from liability. A money judgment against a public servant may be indemnified by the state within limits set by the legislature, but this differs from a money judgment directly against the state or a subdivision thereof. See Tex.Civ.Prac. & Rem.Code Ann. §§ 102.001-006 (tort claims payments by local governments), 104.001-008 (state liability for conduct of public servants) (1986 & Supp.1991). Permitting a suit directly against a governmental unit that has acted "illegally, wrongfully, or beyond its statutory authority" would effectively gut the provisions of the Texas Tort Claims Act and the decisions of the supreme court interpreting the Act. We do not believe that this is the law, and, accordingly, we overrule point of error 3. *599 IV. DUTY OF GOOD FAITH NEGOTITION The Dillards' final point of error asserts that the trial court erred in holding that governmental immunity barred their claim for breach of the duty of good faith negotiation. See Tex.Prop.Code Ann. § 21.012 (1984). We do not read section 21.012 to create a cause of action for failure to negotiate in good faith, nor is there a general common-law duty of good faith. Federal Deposit Ins. Corp. v. Coleman, 795 S.W.2d 706, 708-09 (Tex.1990). Point of error 4 is overruled. The judgment of the trial court is affirmed. GAMMAGE, J., not participating. NOTES [1] In this opinion we use the term "governmental immunity" to refer to sovereign immunity; "governmental unit" to refer to the state, its agencies, and political subdivisions such as cities, counties, and school districts; and "public servant" to refer to a state official, officer, or employee. [2] The supreme court has held that the defense of governmental immunity is waived if not affirmatively pleaded. Davis v. City of San Antonio, 752 S.W.2d 518, 520 (Tex. 1988). [3] We do not agree with the statement in Townsend that an enabling statute which grants a governmental unit the power to sue or be sued does not waive immunity from suit. Townsend, 529 S.W.2d at 267. We believe that this statement runs contrary to the supreme court's opinion in Missouri Pacific Railroad, 453 S.W.2d at 814. [4] The distinction as to what governmental units are entitled to governmental immunity is confused by the following language in a revisor's note to the Texas Tort Claims Act: "Only the state and its agencies have sovereign immunity. The revised law omits the [language of the prior law] to avoid the implication that sovereign immunity applies to local governmental units." Tort Claims Act § 101.025 revisor's note (1986). This statement is unfortunate because it wrongly implies that governmental immunity is limited only to "the state and its agencies" and does not encompass any "political subdivision of this state," as those terms are defined in the Act. Tex.Civ.Prac. 101.001(2) (Supp.1991) (e.g., a county is "a political subdivision of this state."). What the revisor certainly meant to say is that one type of local governmental unit, i.e., a municipality, does not necessarily have governmental immunity. [5] The supreme court's refusal of the application for writ of error in Braun impliedly overruled in part the court's opinion in Hatcher v. State, which previously held that school districts, like cities, do not enjoy immunity from suit. Hatcher, 125 Tex. 84, 81 S.W.2d 499, 500 (1935). [6] Even if the Deutsch exception referred to above were to apply to nonmunicipalities, it would not be applicable under the facts of this cause because AISD received no benefit from the Dillards's actions. [7] The First Court of Appeals, which issued the Winograd opinion, has stated that the estoppel exception applies to municipal corporations. Farmers Marine Copper Works, Inc. v. City of Galveston, 757 S.W.2d 148, 152 (Tex.App.1988, no writ). Although we are aware that the supreme court in dicta has also defined the estoppel exception by reference to municipal corporations, the court's reference was contained in a quotation from Corpus Juris Secundum, which did not purport to use the term "municipal corporation" in the context of Texas jurisprudence. See City of Corpus Christi v. Gregg, 155 Tex. 537, 289 S.W.2d 746, 750 (1956) (quoting 31 C.J.S. Estoppel § 111-b (1942)). In the context of governmental immunity, we believe that the word "municipal corporation" is a term of art properly limited to municipalities. See 2 Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis 672-64 (1977) (discussing the significance of the term "municipal corporation"); Tex.Loc.Gov't Code Ann. §§ 5.001-.005 (1988) (defining types of municipalities) and 5.904 (Supp.1991) (illustrating relationship of terms "municipal corporation," "municipality," "city," "town," and "village."). [8] The Dillards have not argued that their estoppel claims sound in contract such that the AISD cannot claim immunity from liability. We note, however, that estoppel does not create a contract when none existed before. Wheeler v. White, 398 S.W.2d 93, 96 (Tex.1965). Although the result is indeed harsh, we do not read Fristoe and its progeny to allow the state to be estopped into a contract such that it consents to waive its immunity from liability. [9] As a part of the so-called tort reform movement, the Texas Constitution was amended to allow the legislature to classify the functions of a municipality that are to be considered governmental and those that are proprietary. Tex. Const.Ann. art. XI, § 13 (Supp.1991); see Tort Claims Act § 101.0215 (Supp.1991) (defining governmental and proprietary functions of a municipality). The legislative history indicates that Senator Montford, a cosponsor of Tex.S.B. 287, 70th Leg., R.S. (1987), believed that the governmental/proprietary distinction applied only to municipalities. Tort Reform: Hearings on Tex.S.R.J. 15, S.B. 287, S.B. 288, S.B. 289, S.B. 290, and S.B. 329 Before the Senate Comm. on Economic Dev., 70th Leg., R.S. 42-44 (Mar. 2, 1987), reprinted in 2 Texas Tort Reform: Legislative History 1987, S-44 to S-46 (Burwelled. 1988). The addition of section 101.0215 of the Civil Practice and Remedies Code was accomplished by the enactment of Tex. S.B. 5, 70th Leg., 1st C.S. (1987), also sponsored by Senator Montford. [10] In Posnainsky, the supreme court characterized some of the City of Galveston's municipal functions as proprietary due to the city's "home rule" status. It is unclear, and we do not address the issue, whether municipalities that are not home-rule municipalities have any proprietary functions under the common law. In any event, the Texas Tort Claims Act does not make a distinction among types of municipalities in the Act's discussion of municipal liability. Tort Claims Act § 101.0215 (Supp.1991). [11] See also State v. Lain, 162 Tex. 549, 349 S.W.2d 579, 582 (1961); W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838, 840 (1958); Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 712 (1945); State v. Epperson, 121 Tex. 80, 42 S.W.2d 228, 231 (1931); Walsh v. University of Texas, 169 S.W.2d 993, 993-94 (Tex.Civ.App. 1942, writ refd); Adams v. Myers, 721 S.W.2d 447, 449 (Tex.App.1986), affd in part, rev'd in part on other grounds, 728 S.W.2d 771 (Tex. 1987); Bagg v. University of Tex. Medical Branch, 726 S.W.2d 582, 584-585 & n. 2 (Tex. App.1987, writ ref'd n.r.e.); University of Tex. Health Science Center v. Babb, 646 S.W.2d 502, 504-05 (Tex.App.1982, no writ); Terrell v. Middleton, 187 S.W. 367, 369 (Tex.Civ.App.1916), writ refd and reh'g overruled per curiam, 108 Tex. 14, 191 S.W. 1138, 108 Tex. 14, 193 S.W. 139 (1917); Imperial Sugar Co. v. Cabell, 179 S.W. 83, 88-89 (Tex.Civ.App.1915, no writ); Conley v. Daughters of the Republic, 151 S.W. 877, 881 (Tex.Civ.App. 1912), rev'd on other grounds, 106 Tex. 80, 156 S.W. 197 (1913). [12] See Atchison, T. & S.F. Ry. v. Texas State Dep't of Highways & Pub. Transp., 783 S.W.2d 646, 647-48 (Tex.App. 1989, no writ); Battleship Texas Advisory Bd. v. Texas Dynamics, Inc., 737 S.W.2d 414, 417 (Tex.App. 1987, writ dism'd w.o. j.); Teacher Retirement Sys. v. Neilt, 563 S.W.2d 873, 874 (Tex.Civ.App.1978, writ ref'd n.r.e.); Texas Liquor Control Bd. v. Bacon, 443 S.W.2d 312, 317 (Tex.Civ.App. 1969), rev'd on other grounds, 456 S.W.2d 891 (Tex.1970); Texas Liquor Control Bd. v. Canyon Creek Land Corp., 443 S.W.2d 308, 310 (Tex.Civ.App. 1969), rev'd on other grounds, 456 S.W.2d 891 (Tex.1970); Allen v. State, 410 S.W.2d 52, 54 (Tex.Civ.App. 1966, no writ); Texas Liquor Control Bd v. Diners' Club, Inc., 347 S.W.2d 763, 766 (Tex.Civ. App.1961, writ ref'd n.r.e.). [13] A public servant may not utilize the defense of governmental immunity merely based on the fact that he was sued in his official, rather than individual, capacity. Lain, 349 S.W.2d at 582. The capacity in which the public servant is sued may be relevant, however, to whether the state will defend and indemnify him. See Tex.Civ. Prac. 104.002 (Supp.1991) (state liability for conduct of public servants).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519265/	806 S.W.2d 400 (1991) BOARD OF EDUCATION OF COVINGTON, Kentucky, a corporate entity, and Dr. Donald Hunter, Superintendent; Robert Hartman, Susan Hodge, Virginia Chapman, Ron Peace and Pamela Mullins, Appellants, v. William Gray, Appellee. No. 90-CA-436-MR. Court of Appeals of Kentucky. April 5, 1991. 401 Robert L. Chenoweth, Frankfort, Donald L. Richardson, Covington, for appellants. Margo L. Grubbs, Florence, for appellee. Before DYCHE, EMBERTON and HAYES, JJ. HAYES, Judge: The Board of Education of Covington, Kentucky, appeals the entry of partial summary judgment in favor of the appellee, William Gray. The precise issue before this Court can be succinctly stated: Can the findings of fact entered in an unemployment compensation hearing be used to collaterally estop later relitigation of issues in a subsequent civil suit? After consideration of both relevant case law and practical concerns, we conclude that such application of estoppel is improper. The facts of this case are straightforward. Appellant Gray was a teacher at John G. Carlisle Elementary School in Covington. In April 1987, Gray was charged with sexual abuse of several males in his class. After a meeting with Covington School Superintendent Dr. Donald Hunter, Gray tendered his written resignation on May 7, 1987. Accounts of the meeting with Dr. Hunter differ significantly. Gray alleged that Hunter forced him to resign by threatening his teaching certificate; Hunter asserted that he merely informed Gray of the ramifications of being terminated, and further explained to him his procedural and substantive rights were that to occur. In any event, after consultation with counsel, Gray attempted to rescind his resignation on May 11, 1987. His request was denied, and on May 14th, Gray's resignation was accepted by the full Covington school board. 402 In August 1987, Gray filed for unemployment benefits. Initially, the hearing officer found that Gray had voluntarily resigned and was thus disqualified from receiving benefits. Gray appealed to the Kentucky Unemployment Insurance Commission ("commission"), which adopted the hearing officer's findings of fact, but disagreed with its conclusion of law, stating: The evidence in this case does not establish that claimant voluntarily tendered his resignation. To the contrary, claimant was coerced into submitting the resignation prior to proven misconduct and told if he did not do so he would be dismissed and his teacher's certificate would be revoked. The commission then concluded that the employer "failed to meet its burden of proven misconduct," and held that Gray was entitled to benefits. The school board did not appeal this ruling. Meanwhile, in June 1987, Gray had filed a civil suit in Kenton Circuit Court in which he asserted a breach of contract claim, among others. In December, 1989, he moved the trial court for partial summary judgment on this claim. It was Gray's position that the school board was precluded from defending against the breach of contract claim by arguing that Gray resigned, because the unemployment commission had previously found otherwise. In February 1990, the trial court sustained the motion. The school board appeals. At the heart of this issue is the doctrine of collateral estoppel, also known as the "issue preclusion" doctrine. Specifically, Gray is attempting to use offensive collateral estoppel against the school board by prohibiting them from contesting a finding he asserts was previously made against them. All parties agree that the use of collateral estoppel regarding previously adjudicated issues (as opposed to res judicata, which concerns previously adjudicated claims), has been endorsed by the United States Supreme Court and adopted by Kentucky. Parklane Hosiery Company v. Shore, 439 U.S. 322, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979); Sedley v. City of West Buechel, Ky., 461 S.W.2d 556 (1971). While not specifically stated, the Court in Sedley appears to sanction both defensive and offensive use of the doctrine; however, we are cautioned by the United States Supreme Court that special problems arise when the doctrine is used in an offensive manner. Parklane, supra, 439 U.S. at 331, 332, 99 S.Ct. at 651-52, 652. See also, Offensive Collateral Estoppel in Kentucky: A Deadly Weapon or a Paper Tiger?, 76 K.L.J. 237, 246-50 (1987-88). A party attempting to apply collateral estoppel offensively must meet several stringent requirements, including proving that the issue in question was actually and necessarily litigated and determined, and that the losing party was given a full and fair opportunity to contest. Sedley, 461 S.W.2d at 559. Additionally, in Parklane, the United States Supreme Court listed factors which it believed might limit use of the doctrine, including the bound party's lack of incentive to litigate in the prior action, as well as any other unspecified reason which might work an inequity on the losing party. Parklane, 439 U.S. at 331-32, 99 S.Ct. at 651-52. The facts of this case lead us to conclude that Gray failed to satisfy these requirements in particular. First, we cannot conclude that the issue sought to be precluded by Gray, specifically that the school board breached his employment contract by firing him, was actually litigated and determined by the commission. Kentucky's unemployment compensation system is set up to expeditiously award temporary, monetary benefits to a worker after loss of his or her job. In order to receive such benefits, the worker must prove (or the employer, conversely, disprove) that he or she was involuntarily separated from employment without good cause on the employer's part. KRS 341.370. The system's sole function is to determine whether or not the affected employee meets the statutory criteria to qualify for benefits, not to inquire or make any judgments regarding the reasons behind an employee's termination. Other jurisdictions have recognized this critical distinction, and *403 we concur with their reasoning. Caras v. Family First Credit Union, 688 F. Supp. 586, 589 (D. Utah 1988, applying Utah law); Salida School District R-32-J v. Morrison, 732 P.2d 1160, 1165 (Colo.1987); See also, Roberts v. Wake Forest University, 55 N.C.App. 430, 286 S.E.2d 120, 124 (1982). Second, we do not believe that the procedures utilized in the unemployment system either grant any party a full, true opportunity to litigate issues, or even encourage any meaningful participation in the process. As we stated, the unemployment system is set up to quickly determine benefit eligibility status. Hearings are generally informal and expeditious. The rules of evidence are relaxed.[1] This, of course, often leads to the inclusion of evidence which might otherwise be inadmissible in a court of law. McClanahan v. Remington Freight Lines, 517 N.E.2d 390, 395 (Ind. 1988). Too, the amounts involved are often minimal, quite different than the substantial damages which might be sought in a civil court of law. The employer, not desirous of litigating over such small amounts and narrow issues, often chooses not to appear at the hearing or appeal an adverse decision. Section 28 of the Restatement (Second) of Judgments observes that offensive collateral estoppel may be inappropriate where the amounts in controversy are "markedly different," or when the "quality and extensiveness" of the two proceedings are not comparable. In short, the profound differences between unemployment proceedings and those found in a court of law lead us to conclude that the application of binding estoppel would simply be inappropriate. Other jurisdictions agree. See, Salida School District, supra, at 1165; Caras, supra at 589 and McClanahan, supra at 395. Last, we simply do not believe that it would be equitable to allow the doctrine to be applied, particularly in an offensive mode. Having noted that unemployment proceedings are ordinarily quickly and informally disposed of, we can easily imagine the untenable burden which would be placed on the system were we to hold that any findings could conceivably bind all parties in later proceedings. As the Supreme Court of Indiana noted, using such findings as a basis for offensive collateral estoppel "might well force the parties to convert such proceedings into longer and more expensive ones." McClanahan, supra at 395. The Colorado Supreme Court perhaps best summarized the reasons why unemployment findings should not be given the cloak of collateral estoppel, opining thus: An unemployment compensation hearing is designed to adjudicate promptly a narrow issue of law, and to grant a limited remedy to an unemployed worker. The use of an unemployment compensation decision to bind the parties in a subsequent . . . action . . . would be wholly inappropriate, and would frustrate the underlying purpose of . . . collateral estoppel. If findings entered at an unemployment compensation hearing may be used to establish the employer's liability. . . in a subsequent lawsuit, the employer would have a strong incentive to use its superior resources consistently to oppose a discharged employee's claim for unemployment benefits. Issues presented. . . will be contested strongly, and the hearings will become lengthy and more detailed, and will no longer be suited to the prompt resolution of unemployment compensation claims. Judicial economy would be frustrated, rather than improved, as many unemployment compensation hearings become forums in which claims for unlawful or unconstitutional discharge are tried. (Salida, supra at 1165.) For all the foregoing reasons, we reverse the Kenton Circuit Court. All concur. NOTES [1] 903 KAR 5:130, section 4, subsection 4, states that unemployment hearings "shall be informally conducted without regard to common law, statutory or technical rules or procedure . . ."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519273/	806 S.W.2d 102 (1991) HEALTH RELATED SERVICES, INC., Respondent, v. GOLDEN PLAINS CONVALESCENT CENTER, INC., Appellant. No. WD 42543. Missouri Court of Appeals, Western District. March 26, 1991. 103 Benjamin F. Mann and Douglas J. Schmidt, Kansas City, for appellant. Duane J. Fox and Paul G. Schepers, Kansas City, for respondent. Before LOWENSTEIN, P.J., and SHANGLER and MANFORD, JJ. SHANGLER, Judge. Health Related Service, Inc. [HRS] sued Golden Plains Convalescent Center, Inc. [Golden Plains] for the breach of a management contract by refusing to allow HRS to make the agreed performance. Golden Plains alleged that HRS breached the contract by failing to make the agreed performance and counterclaimed for damages. The jury found in favor of the claim of HRS and against the counterclaim of Golden Plains, and assessed damages of $170.647.12. Golden Plains appeals the judgment entered upon the verdict in favor of HRS. HRS contracted to manage Golden Plains, a skilled nursing home in Kansas, for a term of ten years. There was included an option to either party to renew the contract for two successive ten year terms. HRS was to receive the greater of 5% of the gross revenues of the nursing home or $750 per month. In exchange, HRS agreed to operate and manage the facility. Those services included the supervision of the nursing home, the recruitment and training of personnel, establishment of fiscal policies and rates for patient care, purchase of supplies, the supervision of dietary and food preparation, advice as to insurance coverages, and other such incidents of operation. The contract took effect in January of 1977. HRS was acquired by Research Health Services, Inc. in October of 1981. Following that acquisition Golden Plains began to experience dissatisfactions with the HRS management of the facility. They included the failure to pay vendor invoices 104 on time, to supply payroll checks and to adequately staff the operation, among other neglects. Golden Plains informed HRS of these lapses in the obligation to perform, and on December 17, 1982, formally terminated the contract. HRS followed with this suit and alleged that the termination constituted a breach of the contract. The petition sought as damages the lost profits from the remainder of the ten year term as well as the two ten-year option terms. The Golden Plains counterclaim alleged that the numerous failures by HRS to make performance effectively terminated the contract and sought damages for that default. Golden Plains sold most of its assets in October of 1984 and left the nursing home business. At that time also the number of homes HRS managed was in decline. In November of 1984 HRS decided no longer to manage nursing homes. In January of 1987 the last of the HRS nursing home management contracts was terminated. There was evidence that thereafter HRS continued as a shell corporation without business activity. There was evidence also that at the time the contract was terminated and thereafter, HRS had access to the full resources of its parent, Research Health Servicesa system of some 32 corporationsso that had not Golden Plains terminated that management contract, HRS would have been fully capable of performing the required services. We note at the outset of the discussion of the legal issues the agreement of the parties that the substantive law of Kansas governs their dispute. I. Submissibility of the HRS Claim Golden Plains asserts first that the trial court erroneously denied its motion for judgment notwithstanding the verdict because HRS failed to prove a submissible breach of contract. In order to prove a case under the theory Golden Plains propounds, HRS "had to show that it properly performed all of its duties under the contract rendering the performance by Golden Plains necessary." [emphasis added] It is the sense of the argument that, in the absence of evidence that there was "satisfactory performance" of all the obligations owed by HRS, "Golden Plains had just cause to terminate the contract." This argument undertakes to correlate two deemed principles of contract law. One is, that the strict and literal performance of the terms of the contract is the condition precedent to recovery on the contract. The other is, that the failure to make exact performance constitutes a material breach and entitles the other party to repudiate the contract and treat the obligation for further performance as rescinded. One invokes a rule in general discard, and the other an application of a rule incompatible with the law as now evolved. The common law rule that required exact performance of the contract has given way to the modern view that allows recovery for substantial performance done in good faith. That is the principle that obtains in general, and the principle that governs contract disputes under Kansas law. 17A C.J.S. Contracts § 508 (1963); 17A Am. Jur.2d Contracts § 631 (1991); Holder v. Kansas Steel Built, 224 Kan. 406, 582 P.2d 244, 250[7] (1978). A cause of action for the contract price is proven by evidence that the plaintiff has in good faith made substantial performance of benefit to the other party, a benefit retainedsubject nevertheless to the right of the other party for recoupment of damages for the imperfect performance. Id.; 17A C.J.S. Contracts § 508 (1963). The doctrine of substantial performance expresses the presumption that the exchange contractors expect from each other is that of a reasonable performance. Restatement (Second) of Contracts § 241 comment b (1981). Thus, the doctrine operates when the defects in performance are sufficiently slight that damages will complete the contract. 17A Am.Jur.2d Contracts § 632 (1991). A material defect or failure in performance, however, is not a reasonably expected performance, and so operates to prevent the duty of the other party to perform from becoming due. McKnight v. Midwest Eye Inst., 799 S.W.2d 909, 915 (Mo.App. 1990); Restatement (Second) of Contracts 105 § 237 comment a (1979). The effect of the Golden Plains argument is that the failure of HRS to perform the contract was material, and so precluded HRS from a theory of substantial performance, and excused Golden Plains from any further obligation to perform. The specific lapses of performance are not described, other than as allegations in the Golden Plains counterclaim. The brief merely alludes to 27 pages in the transcript cross-examination of HRS vice-president Fischer as proof that "Golden Plains was dissatisfied with HRS' services and had repeatedly voiced its dissatisfaction." It is apparent from that testimony, from the exchange of correspondence, and the testimony of Golden Plains employees, that in 1981 Golden Plains acquired a new administrator and HRS was acquired by Research Health Services. It was a period of readjustment of the systems of operation between them and also of complaints. The dissatisfactionssome of them petty, others of more consequenceranged from the shortage of linens to late payment of invoices, late payrolls and the failure to obtain medicare reimbursements due, among others. There was evidence that HRS was responsive to these complaints and disposed to correct them. There was other evidence that some were never fully resolved to Golden Plains' satisfaction. It is this residue of dissatisfaction, Golden Plains seems to insist, that proves not only that HRS failed to perform under the contract, but also a fundamental breach that both denies HRS any right to recover and justifies Golden Plains to terminate the contract. It is not every dissatisfaction with a contract performance, nor even every breachbut only a material breachthat excuses performance by the other party. See McKnight v. Midwest Eye Inst., 799 S.W.2d at 915 and Village of Cairo v. Bodine Contracting Co., 685 S.W.2d 253, 260[9-11] (Mo.App.1985). The circumstances significant to that determination are given in Restatement (Second) of Contracts § 241 (1981). They are explained and applied in McKnight v. Midwest Eye Inst., 799 S.W.2d at 915[9-11]. It is sufficient to say that, under those principles, neither the evidence nor the arguments Golden Plains brings to bear, shows any HRS neglect that constitutes a material failure to perform under the contract. Those considerations that determine whether performance is substantial are those that determine whether a failure is material. Restatement (Second) of Contracts § 237 comment d (1979). It follows that HRS proved a submissible case of breach of contract. II. Submissibility of Damages Golden Plains argues also that, the cause was not submissible in any event, because the claim for lost profits, the only damages sought by HRS, was not proven. The argument cites Kansas authority to the effect that loss of profits as an element of damages for contract breach are recoverable when "proved with reasonable certainty, and when they may reasonably be considered to have been within the contemplation of the parties." Vickers v. Wichita State Univ., 213 Kan. 614, 518 P.2d 512, 515 (1974). Vickers, the leading exponent in Kansas on loss of profits, also holds, "The fact that damages cannot be calculated with absolute exactness will not render them so uncertain as to preclude assessment." Id. at 516[3]. Golden Plains contends that the HRS evidence of damage calculations, based not only on the four years that remained on the contract, but also on the two successive ten-year options, was wholly speculative. The HRS testimony that they would have exercised the options to renew, moreover, was contradictory, Golden Plains asserts, and not trustworthy. In any event, the argument goes, that evidence "cannot overcome" the fact that HRS voluntarily chose to leave the business of nursing home management in 1984, before the first option to renew ever accrued. It was "sheer speculation," Golden Plains argues, to conclude that HRS would have renewed the contract with Golden Plains when HRS had already voluntarily terminated every other such contract. 106 The latter argument was refuted by the evidence that there were more than adequate resources available to HRS to perform the services for the duration of the contract term. Throughout 1982 HRS performed its contract obligations to Golden Plains through the employees and resources of its parent, Research Health Services. Moreover, even at the time of trial, Research Health Services was managing two nursing homes. The same staff and facilities remained fully available to HRS. Golden Plains argues also that because HRS relinquished the nursing home management business, there was not sufficient evidence that HRS would exercise its options to continue to perform. Thus, the evidence of lost profits based upon the exercise of those options was speculative and inadmissible. The argument cites Hole v. Unity Petroleum, 15 Wash.2d 416, 131 P.2d 150 (1942) that in the "highly competitive and uncertain business" of gasoline distribution, their decision to exercise the option to extend the life of the contract would be governed by the conditions at the time the election was required. The evidence was, however, that HRS' income was not dependent upon the profitability of Golden Plains, since it was based on a percentage of gross income. There was evidence also that HRS enjoyed a long history of consistent profit from its contract with Golden Plains. There was detailed evidence to sustain that inference. The competency of such evidence to prove lost profits is confirmed by Kansas law. Vickers holds that anticipated profits may be allowed as damages upon a breach of contract "where the business undertaken is not new or untried, and has been established to such an extent that a safe basis can be found upon which to estimate such profits." Vickers, 518 P.2d at 517 (Quoting Outcault Advertising Co. v. Citizens' Nat'l Bank of Emporia, 118 Kan. 328, 234 P. 988, 989 (1925). A history of past profitability, Vickers concludes, establishes a loss of profits with reasonable certainty. That law governs on the evidence before the jury. The damages of $170,647.12 awarded to HRS, moreover, are less than calculated by its evidence over the remaining term of the contract, the options excluded. On the basis of the testimony, the loss accrued to HRS through the expiration of the original contract term was $179,191. The jury returned less. Golden Plains argues also that the calculation of lost profits was invalid because HRS neglected to deduct the percentage of the salaries of certain HRS management staff. There was evidence that those salaries were a fixed cost of personnel who serviced numerous other management contracts as well. That cost continued even after Golden Plains terminated its contract. As such, it was akin to overhead which remained unaffected by whether or not a particular contract was breached. It was a cost remote to the calculation of true damages. Oakland Cal. Towel Co. v. Sivils, 52 Cal. App. 2d 517, 126 P.2d 651, 652 (1942). The expenses attributable to the lost Golden Plains business were fully taken into account to derive damages from the Golden Plains breach of contract. III. Instruction Error The next Golden Plains point asserts that the refusal by the trial court of tendered general breach of bilateral contract verdict director, MAI 26.06, and the submission instead of HRS' substantial performance verdict director, MAI 26.07, was prejudicial error. The argument cites the Caution to Notes on Use (1980 New) to MAI 26.07: "This instruction is not proper in all contract cases. This instruction may be used only in cases where substantial performance is legally sufficient." The argument then cites the Committee's Comment (1980 New) that follows: "This instruction [MAI 26.07] would be appropriate where recovery is sought in a building contract." Golden Plains draws the conclusion from this commentary that substantial performance MAI 26.07 is for use in construction contracts only. That contradicts not only the tenets of the general law of contracts, but also of the law of Kansas, which governs here. "While the doctrine of substantial performance 107 is applied most frequently in building and construction contracts, it is not so limited and may be applied in the case of any kind of contractual obligation to perform." 17A Am.Jur.2d Contracts § 631 (1991). The official comment to PIK 18.10, the Kansas counterpart to MAI 26.07 on substantial performance, is a virtual rescript of that declaration of principle. It is an application of principle given by the Supreme Court of Kansas to bilateral contracts generally in Holder v. Kansas Steel Built, 224 Kan. 406, 582 P.2d 244 (1978). It is not the contract prototype that bears upon whether the doctrine may apply, but the expected exchange of performances under the terms of the agreement and whether the nonperformance was in bad faith or a deliberate departure from the contract. Restatement (Second) of Contracts § 241 comments a & f (1979). Thus, if the terms of the agreement make full performance a condition, substantial performance does not suffice for relief under the contract. Restatement (Second) of Contracts § 237 comment d (1979). There was no such condition to the expected exchange of performance from Golden Plains. As already determined, the HRS conduct under the contract was free from material breach. Its performance, therefore, was substantial and properly submitted by MAI 26.07. See Restatement (Second) of Contracts § 237 comment d (1979). HRS submitted damages under MAI 4.01, the general damage instruction. The Caution Notes on Use (1980 New) to MAI 26.07 advise, however: "Use MAI 4.08 as the damage instruction where substantial performance is submitted." That instruction directs the jury to reduce the damages awarded to the plaintiff by "any sum necessary to correct variations." The Notes on Use (1988 New) to MAI 4.08 advise: "This instruction is to be used only in cases involving contracts in which substantial performance is sufficient. See the verdict directing instruction MAI 26.07." Golden Plains argues that the advisories require that MAI 26.07 and MAI 4.08 "be used in tandem," and that noncompliance constituted error. Hudson v. Carr, 668 S.W.2d 68, 71[3] (Mo. banc 1984) advises: "Failure to follow MAI, including the Notes on Use, is error, with the prejudicial effect subject to judicial assessment." A defendant who claims defective performance of a contract may elect to plead in defense the "variations" from the required performance to mitigate or extinguish the plaintiff's claim to the contract price, or may plead an affirmative counterclaim for damages. Brush v. Miller, 208 S.W.2d 816, 820[8, 9] (Mo.App.1948). To recoup its losses for the defective performance ["variations"], Golden Plains elected to counterclaim for a judgment for damages rather than merely to defend against the contract price. The verdict of the jury against the Golden Plains counterclaim adjudicated that Golden Plains was not damaged by any defective performance by HRS. The propriety of the judgment entered on the counterclaim was not raised on this appeal. In the circumstances, it would have been redundant and unfair to require HRS to submit the same issue as an element of its damages instruction. There was neither trial error nor prejudice to Golden Plains by the conjoined submissions of MAI 26.07 and MAI 4.01. IV. Admissibility of Evidence A. Admission of Exhibit 39 Exhibit 39 was the 1984 contract for the sale of Golden Plains to Dick Currie, the incorporator of a Kansas corporation to be formed. A term of that contract noted that Golden Plains was then a defendant in a case brought by HRS, and included the agreement of Dick Currie "to assume the defense of said case and to indemnify Golden for expenses and any judgment ultimately rendered." Among the witnesses who testified for Golden Plains were Marilyn Luman, administrator for Golden Plains and then for the successor Dick Currie corporation. At the time of her testimony Luman was also a director and 5% owner of that corporation. Vernon Huckins was also a witness for Golden Plains, who had retained him as an accounting expert for the purposes of the litigation with HRS. Huckins was also a vice-president and employee 108 of the holding company owned by Currie. There was much in the testimony of Luman, and especially of Huckins, concerning HRS' failure to perform under the management contract with Golden Plains. Kumba, an original investor in Golden Plains, and its former president, also testified in its behalf. Exhibit 39 was asserted to show the interest Luman had in protecting her own financial stake in the Currie corporation, and hence her interest in the outcome of the litigation in which she testified. The exhibit was tendered and received to show Huckin's interest in protecting his employer from loss. HRS cross-examined Huckins from this exhibit, but not Luman. Golden Plains does not dispute that the interest and bias of a witness are always proper subjects of inquiry. Thornton v. Vonallmon, 456 S.W.2d 795, 798[1-4] (Mo. App.1970). Golden Plains objected to exhibit 39, and argues now, that since Luman was not confronted with the exhibit, its use constituted a "collateral" impeachment of the witness, and so was improper. Golden Plains objected also that the indemnification agreement was inflammatory and prejudicial because, like evidence of insurance, "it shows that the defendant has a source of payment of a judgment other than its own financial resources." The record does not show that exhibit 39 was received for impeachment of Luman, by then an absent witness, or that the indemnification recitation was used or was disclosed to the jury for that purpose. The exhibit was received during the testimony of witness Huckins, and its use was expressly "to show interest and bias on the part of this witness." [emphasis supplied] That was the only impeaching use made of that evidence. The assertion by HRS that the Currie indemnity was material to the litigation arose during the cross-examination testimony of Kumba. HRS proposed to question Kumba concerning the Curry indemnity to show Luman's interest in the outcome of the litigation. Luman had by then given her testimony and was dismissed. That purpose, however, was never disclosed to the jury, since the objection and response of counsel were to the court. The court ruled that the Currie indemnity was relevant for the asserted purpose, and the proceedings returned to open court. It was then that counsel asked Kumba about the indemnity, but Kumba had not heard of it and could not answer. That ended the interrogation. Exhibit 39 was used neither then nor later to impeach Luman. It was formally tendered and received later, to impeach witness Huckins, and him alone. Golden Plains argues nevertheless that although the exhibit was received to show the bias and interest of the witness, it was used to argue to the jury that the counterclaim was not genuine, but merely a gesture of cooperation with Currie who agreed to assume the defense and indemnify Golden Plains for any judgment rendered. Golden Plains cites the rule that, other than to show bias and its effect on given testimony, an argument to the jury that a person not a party to the action would pay the judgment is reversible error. That rule, on very principle, is regularly applied in personal injury cases to prevent disclosure that a liability insurer is interested in the outcome of the case. Murphy v. Graves, 294 S.W.2d 29, 32[3] (Mo.1956). It is not every such incident, however, that constitutes reversible error. Means v. Sears, Roebuck & Co., 550 S.W.2d 780, 787[5, 6] (Mo. banc 1977). It is when counsel acts with "adroit purpose" or in bad faith to impress the jury that someone other than the defendant would be responsible for the judgment that reversal is the expected sanction. Murphy v. Graves, 294 S.W.2d at 32; Moss v. Nehman, 247 S.W.2d 305, 306[1] (Mo.App.1952). The indemnity component of Exhibit 39 included not only the Currie corporation agreement to assume the defense of the HRS litigation and to indemnify Golden Plains for any expense and judgment, but also the Golden Plains agreement to cooperate with Currie in the defense. That cooperation included "the filing of a counterclaim in the pending action or the filing of a new action against [HRS]." In closing argument, HRS counsel berated the Golden 109 Plains evidence of HRS' failure to performas it came from Huckinsas "silly defensive counterclaims" prompted by the interest of that witness in protecting his employer, the Currie corporation. The counterclaim was a "ploy," an "attempt to divert the issue" away from Golden Plains' own nonperformance. It was an argument that the want of merit notwithstanding, Huckins' bias in protecting the interest of his employer, Currie, extended beyond defending against the HRS claim to establishing the counterclaim, an obligation due from Golden Plains to the Currie company under the indemnity agreement. It was readily so understood by the jury. The closing argument used Exhibit 39 to the same effect for which it was admitted: to show the bias and interest of witness Huckins. There was no exploitationbeyond the literal indemnity terms of the exhibit of the Currie company's undertaking to pay any judgment ultimately rendered against Golden Plains. There was neither error nor prejudice by the use of Exhibit 39 on closing argument. B. The Testimony of James Fischer James Fischer had been engaged in nursing home management and operations since 1972. In that course and since, Fischer has been responsible for the management of hundreds of such facilities. In mid-1982 he came to the HRS group as vice-president of all of its nursing home operations. He left at the end of 1983 and has since owned his own health care management business. Among his duties at HRS was to study and investigate the status of HRS' performance of its various nursing home contracts, including the management contract with Golden Plains. Fischer testified to the HRS readiness to fully perform the management contract with Golden Plains, but that Kumba, its president, interfered. In addition to a narrative of HRS' performance during his presence, there were elicited from Fischer opinions whether HRS had the willingness and ability to perform the management services through the contract term and the two ten year options, had personnel available to conduct a nursing home management business, and whether the occupancy rate at Golden Plains would have gone up had HRS continued to manage that home. Fisher responded with an affirmative opinion to each inquiry. Golden Plains complains that these were predictions of future events without basis in fact, and so incompetent as expert opinion. Golden Plain argues that since the expert did not testify from firsthand knowledge to render the opinions, they could be properly derived only by hypothetical questions that assumed facts supported by evidence, and cites Miller v. Weber, 688 S.W.2d 389, 391 (Mo.App.1985).[1] The opinion that HRS had the capacity to service the Golden Plains contract even after termination and throughout the option terms was grounded in fact, and was probative. HRS, although then already a shell corporation, during 1982 used interchangeably the personnel and resources of the parent corporation. The parent continued to manage nursing homes with the same resources at the time of trial, in 1989, by then beyond the end of the first contract term of years. The other opinions were grounded on the experience of the witness in the industry, as well as empirical data, albeit not assumed as hypothetical fact. These opinions that HRS would have renewed the contract and options to manage Golden Plains and had the capacity to perform them, in any event, could not have prejudiced Golden Plains. The testimony of senior vice-president of the parent Research Management group Vonderfect to that effect was before the jury. The actual cavil is at the calculations given by the witness as to lost profits as measured by the occupancy rate projected for Golden Plains during the balance of the contract term and through the two ten-year option periods. The damages returned by the jury were less than the amount claimed for the balance of the original contract, so that Golden Plains could not have been 110 prejudiced by the opinion of lost profits beyond that term. Golden Plains argues also that it was prejudiced when the court permitted Fischer to comment on the comparative results of state regulatory surveys conducted on Golden Plains and other nursing homes managed by HRS. Fischer testified that he was "practically elated" that those results indicated that HRS' performance was above that customary for the nursing home industry. Golden Plains had sought to present evidence of HRS' failure to adequately perform other nursing home contracts, but was refused at the very outset of trial. HRS moved in limine to exclude such evidence, and was sustained. Golden Plains expressly withheld objection. To convict the court of error, Golden Plains cites neither legal principal nor authority, but only the adage, "what's sauce for the goose is sauce for the gander." There is no indication that Golden Plains retendered the proof the court excluded at outset or otherwise attempted to redress that claim of disparate treatment. The point is denied. Golden Plains complains also that Fischer was allowed to give opinion testimony based upon his knowledge of custom and practice in the industry as to the meaning of two specific clauses in the management contract. One had to do with the negotiation of third-party contracts with patients, between Golden Plains and patients, governmental agencies and institutions. The other had to do with telephone expenses. Golden Plains argues that the provisions were not ambiguous and so did not require interpretation. Fischer gave no definitive reading of the telephone expense provision. Nor did he testify to the custom and practice of the industry on negotiation of third-party contracts. The court sustained the Golden Plains objection to that attempted initiative. Golden Plains argues that despite that ruling the court "allowed the testimony." That is not apparent, but, if so, it came in without objection. The point is denied. C. Exhibit 7 Fischer testified that HRS personnel visited the Golden Plains home on a regular basis. Exhibit 7 was a list compiled by the office at his direction of the dates of the visits and the names of the HRS personnel who made them. Golden Plains objected to the tender on several grounds, but the court refused the exhibit because it was not material to any issue. The exhibit was retendered and received later in the litigation. Golden Plains objected because the exhibit was prepared after the termination of the contract by Golden Plains. The objection here is that there was no foundation shown that the list was accurate or that it otherwise qualified as business record evidence. No such objection was made at the trial, however, and so was waived. Frank v. Environmental Sanitation Management, 687 S.W.2d 876, 884 [17] (Mo. banc 1985). V. Other Trial Error Rule 55.33(a) provides that leave to amend "shall be freely given when justice so requires." Golden Plains argues that the denial of its motion for leave to amend the answer to assert the affirmative defense of failure to mitigate damages violated that rule and was prejudicial error. The motion was presented on June 2, 1989, and denied on June 12, 1989, the day of trial. Golden Plains argued to the trial court that leave to amend was not made earlier because the factual basis for the affirmative defense was not learned until the completion of the deposition of HRS witness Fischer. The motion was then filed on that very day. HRS stated to the court that the subject of the motion to amend was discovered on April 27, 1989, more than a month before the motion was filed. There was no further exposition of the issue. The denial of the amendment, presumably, was responsive to the contention that it was untimely. Golden Plains argues that the unfairness of the rule is exacerbated because it was a discovery order entered by the court itself that prevented Golden Plains from uncovering the factual basis for the affirmative *111 defense any earlier. The court had sustained objections to the Golden Plains interrogatory concerning "all nursing homes [HRS] has managed in the last fifteen (15) years." Golden Plains argues that it would have learned through the answers that HRS "did not enter into a single new management contract after the Golden Plains' contract was terminated," and so would have derived a factual basis for the affirmative defense at that earlier time. The argument is disingenuous. That interrogatory was not framed so as to discover whether or not HRS made any effort to replace the Golden Plains' management contract. Golden Plains contends that for us to rule that the motion to amend was filed untimely would chill "attorney compliance with the ethical guideline of not making allegations, including affirmative defenses, without some reasonable basis in fact." That mode of attorney performance [which is not only an ethical expectation, but also an affirmative duty, see Rule 55.03] assumes a performance also diligent. In the circumstances presented, we cannot say that the denial of the amendment was a palpable abuse of discretion, or otherwise subverted justice. Baker v. City of Kansas City, 671 S.W.2d 325, 329[7-12] (Mo.App.1984). The judgment is affirmed. All concur. MANFORD, J., did not participate in the decision of this case due to his death on February 12, 1991. NOTES [1] That rigid rule of expert opinion evidence has since been meliorated by the enactment of § 490.065, RSMo Supp.1991 (effective date Aug. 28, 1989).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519286/	4 Md. App. 269 (1968) 242 A.2d 603 JAMES P. CORBETT v. STATE OF MARYLAND. No. 244, September Term, 1967. Court of Special Appeals of Maryland. Decided June 4, 1968. The cause was argued before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ. Richard W. Moore for appellant. Henry J. Frankel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and Barry S. Frame, Assistant State's Attorney for Baltimore City, on the brief, for appellee. THOMPSON, J., delivered the opinion of the Court. James P. Corbett, the appellant, was convicted of unauthorized use of an automobile, in the Criminal Court of Baltimore, in a trial before the court without a jury. Corbett complains that the lower court was clearly erroneous in considering facts not in the record. There were also other contentions which we need not consider. The evidence adduced at the trial showed that on March 15, 1967 at about 3:30 P.M., Helen Smith reported to the police that her 1964 Oldsmobile had been stolen. An hour later, Officer Garrity, while on radio car patrol duty, recovered the car. Garrity chased the automobile after the driver failed to obey a stop sign. At the end of the chase, the three occupants of the car fled from the scene; however, Officer Garrity did apprehend one of them Corbett. 271 Two alibi witnesses testified for the defense; in addition Ronald Morgan made an in-court confession that he committed the crime but managed to elude the police officers in the alley in which Corbett was apprehended. He stated further that Corbett was not with him and had no part in the crime. In announcing his findings of fact the trial judge stated: "THE COURT: Well, gentlemen, I am going to hold this sub curia.... "I think that as far as Morgan's testimony is concerned, if he did do this, he's done a very courageous and honest thing by coming forward and admitting that he did it. On the other hand, his prior record is not good. He casts some doubt upon the truthfulness of the testimony and I am worried and suspicious over the testimony that he was in the car with two other men or boys and he never knew their names and still doesn't know who they were. "There's a lot of unusual things about this case and one thing is Morgan's testimony that he stole the car with two virtual strangers, whose names be's never known, and they ran one way and he ran the other when the police caught up to them. If he did do it, he is doing a very honest and courageous thing, but his story has some loopholes in it, such as his ignorance of his two accomplices." Subsequently, when the judge announced his decision, after referring to the testimony of the police officer, the court said: "THE COURT: We have that testimony, and then, of course, Morgan takes the stand and took the blame for the whole crime; that he said that he was the one who had stolen the automobile, and Corbett had not, and quite frankly, when I first heard Morgan testify to that effect, I was impressed with it. He also testified that he does not know Corbett; that was my recollection, and I had the reporter type up that part of Morgan's testimony. The question was, `Do you know the defendant, Corbett? Answer: No; I don't know him. Question: Never knew him? Answer: Just recently 272 I have seen him, but I don't know him; not specifically to say that he is my friend, no; I can't say that....'" * * * "THE COURT: Then I asked, I said, `How did you find out Corbett was being charged with the larceny of this automobile? Answer: Well, prior to the time I came over here, some friends that do know James Corbett told me, they asked me, "did you hear how that boy had been locked up?" I said, who? They said, "James Corbett." I asked, for what? At the time they described the crime he had committed, I knew right then and there it wasn't him.' Now, considerable doubt is thrown on the testimony of Morgan by his testimony that he never knew Corbett. "MR. MOORE: That is not a fair interpretation. "THE COURT: Well, now, I will read it again. `Do you know the defendant, Corbett? Answer: No; I don't know him. Question: Never knew him? Just recently I have seen him, but I don't know him; not specifically to say that he is my friend; no; I can't say that.' The source of my doubt is that since the beginning of the trial of this case, I found out that Morgan and Corbett are charged jointly in several other cases, as co-defendants, so that it is hard for me to place much faith in what Morgan testified to when he said, `No, I don't know him,' and he is being charged along with Corbett in other offenses. He must know him. "I am convinced in my mind that Morgan not only knows Corbett, but he has known him for some time, and that Corbett knows Morgan, and for that reason, I find it quite difficult to believe that Morgan, for reasons of his own, actually committed the crime, which at least he says he did." (Emphasis added) Maryland Rule 1086 provides as follows: "When a case has been tried by the lower court without a jury, this Court will review the case upon 273 both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses." We hold that the trial judge was clearly erroneous when he relied upon knowledge acquired from outside of the record that Corbett and Morgan had been jointly indicted for other offenses. The other indictments were not introduced into evidence and were not called to the attention of the judge on the record, and it was not until the decision was announced that the trial judge indicated that he had any knowledge of these other indictments. In civil cases the Court of Appeals of Maryland has laid down the rule that it may take judicial notice of other proceedings in cases before it, Jeweler v. Potomac Electric Power Company, 217 Md. 458, 144 A.2d 66, but the Court has laid down a different rule with respect to trial courts. In Fletcher v. Flournoy, 198 Md. 53, 81 A.2d 232, 235 the Court said: "We are asked to say that the lower court and this court may take judicial notice of the record in that case in Montgomery County, in the court in which the instant case was instituted and from which it was removed to Howard County. In a recent case of the present plaintiff against Judge Bryan, Fletcher v. Bryan, 175 F.2d 716, 717, the United States Court of Appeals for the Fourth Circuit quoted and followed a statement in its opinion by Judge Soper in Morse v. Lewis, 4 Cir., 54 F.2d 1027, `The general rule undoubtedly is that a court will not travel outside the record of the case before it in order to take notice of the proceedings in another case, even between the same parties and in the same court, unless the proceedings are put in evidence; and the rule is sometimes enforced with considerable strictness. * * But in exceptional cases, as high authority shows, the dictates of logic will yield to the demands of justice, and the courts, in order to reach a just result, will make use of established and uncontroverted facts not formally of *274 record in the pending litigation.' In the instant case, the demands of justice do not suggest an exception to settled rules. Rule 2 itself provides a simple and inexpensive way to present such records in the form of `Sworn, or certified or photostatic copies' attached to or filed with an affidavit. This court, like the Supreme Court (DeBearn v. Safe Deposit and Trust Company, 233 U.S. 24, 32, 34 S. Ct. 584, 58 L. Ed. 833), takes judicial notice of its own records, in the instant case as in other cases. Christopher v. Sisk, 133 Md. 48, 50, 104 A. 355; Snodgrass v. Stubbs, Md., 64 A.2d 130, 133. As to trial courts, the general rule stated by Judge Soper is law in Maryland. This situation has for many years been regulated by statutes which make original papers admissible in lieu of certified copies. Code, art. 35, sec. 88; Baltimore City Charter, (1949 Ed.), sec. 308. If in this respect the scope of judicial notice should be broadened, we can accomplish such a result only by exercise of the rule-making power, not by departing from settled law in a particular case." The rule adopted in Maryland seems to be the general rule, 9 Wigmore: Evidence § 2579 at 570 (3rd ed.); McCormick, Evidence § 327. Wharton states, however, that in criminal cases there is a division of authority, 1 Wharton Criminal Evidence, § 63 (12th ed.), but we do not think that a less stringent rule should be applied in criminal cases, where liberty is at stake, than in civil cases, where usually only property is at stake. Especially do we think that the rule should not be relaxed here where the information was not called to the attention of the witness for a possible explanation; and where the trial judge relied on unproven indictments to determine that the witness, Morgan, was unreliable. It is, of course, possible that the same determination would have been reached on the other evidence, but we cannot thus place ourselves in the position of the trial judge and ignore what he said. Judgment reversed and case remanded for a new trial.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519124/	156 Conn. 471 (1968) ANSELM SCHURGAST v. ROGER M. SCHUMANN ET AL. Supreme Court of Connecticut. Argued January 3, 1968. Decided May 21, 1968. ALCORN, HOUSE, COTTER, THIM and RYAN, JS. 473 George E. McGoldrick, with whom was William G. Comiskey, for the appellants (original defendants) and for the appellee (third-party plaintiff). Valentine J. Sacco, for the appellant (third-party defendant). George Levine, with whom, on the brief, was Melvin S. Katz, for the appellee (original plaintiff). RYAN, J. In the original action, the plaintiff, Anselm Schurgast, seeks to recover damages for the destruction by fire of a house which the defendant Roger M. Schumann had agreed to construct for him. The first count sounds in negligence and sets forth specific acts of negligence by Schumann and his employees, the defendants Louis Corte and Rodney Weed. In the second count, Schurgast alleges facts for the obvious purpose of relating the essential elements of the doctrine of res ipsa loquitur. Although no demurrer was addressed to this count, it should be noted that, since there is no allegation of negligence on the part of the defendants, it fails to set forth a cause of action. The third count sounds in contract. During the course of the trial, the third count was withdrawn and is not involved in the present appeal. Schumann instituted 474 a third-party action against the Aetna Insurance Company, hereinafter sometimes referred to as the third-party defendant and sometimes as Aetna, wherein he sought a judgment declaring that a manufacturers' and contractors' liability policy issued to him by the third-party defendant covered the events described in Schurgast's complaint, that the third-party defendant must defend the action brought against Schumann by Schurgast, and that the third-party defendant must pay any judgment which may be obtained by Schurgast against Schumann up to the limits of the policy. The trial court found the issues on the original action for Schurgast against Schumann and against Weed and Corte, his two employees. It also found the issues on the third-party action in favor of Schumann, the third-party plaintiff and one of the defendants in the original action, against Aetna, the third-party defendant. Appeals have been taken by the defendants on the original action and by the third-party defendant. We shall consider first the appeal of the original defendants from the judgment of the trial court against them. I In their first assignment of error, the original defendants seek to have added to the finding certain facts which they claim are either admitted or undisputed. "This court has the power to correct the finding where it fails to include admitted or undisputed facts. Practice Book § 627; Morrone v. Jose, 153 Conn. 275, 277, 216 A.2d 196; National Broadcasting Co. v. Rose, 153 Conn. 219, 223, 215 A.2d 123. A fact, however, is not admitted or undisputed simply because it is uncontradicted.... In the instant case, there was no failure on the part 475 of the trial court to include any paragraphs of the draft finding which were admitted or undisputed, as set forth under our rule in cases such as Brown v. Connecticut Light & Power Co., 145 Conn. 290, 293, 141 A.2d 634." Solari v. Seperak, 154 Conn. 179, 182, 224 A.2d 529. The second assignment of error attacks certain paragraphs of the finding as having been found without evidence. This claim is without merit since the challenged paragraphs of the finding either are directly supported by the evidence or are based on inferences reasonably drawn from the evidence. Cappiello v. Haselman, 154 Conn. 490, 492, 227 A.2d 79. The finding is not subject to any material change and discloses the following facts: On August 26, 1959, Schurgast entered into a written agreement with Schumann, a building contractor, in which Schumann agreed to construct a one-family dwelling for Schurgast on land owned by Schurgast in Meriden. Prior to January 11, 1960, Schumann and his employees had begun construction of the Schurgast house. The foundation of the house was completed, the house was framed in, the roof was on, the sides were shingled, the windows and the doors were in place, locks were in the doors, the insulation was in, and the rough plumbing, the rough electrical work and the water service were installed. On the morning of January 11, 1960, the house was completely destroyed by fire. At the time of the fire, Corte and Weed were employees of Schumann and were doing carpentry work on the Schurgast house. Schumann safeguarded the Schurgast house while it was under construction. At Schumann's instruction the house was locked at night. There were only two keys to the house; Schumann had one, and 476 Corte and Weed shared the other. Schurgast did not have a key to the house. Schumann engaged all subcontractors on the house and directed them as to when to perform their work. Schurgast made no arrangements with subcontractors. Schumann was the only person who gave instructions to his employees; Schurgast gave them no instructions. No one could enter the Schurgast house without the permission of Schumann. On the morning of the fire, Schumann and his employees had control of the house. Approximately two years prior to the fire, Schumann had purchased a new salamander stove. A salamander is a tool of the trade of a building contractor which is used to heat a building under construction and to dry plaster. Schumann's salamander was made of heavy-gauge steel, was about five feet high, weighed about twenty-five pounds and burned kerosene. This stove had been used by the defendants on other jobs prior to this one. It was placed in the kitchen on the first floor of the Schurgast house about three weeks before the fire and was used for a period of time prior to the fire. On the morning of the fire, inspection and use of the salamander were within the control of the defendants. The stove rested on three bricks on the kitchen floor. It had no flue or exhaust pipe to the outdoors. It held between three and five gallons of kerosene. The amount of air entering the salamander was regulated by one of two levers. The amount of heat provided was regulated by controlling the amount of air entering the stove. It was necessary to check and clean the salamander regularly to ensure that no dirt or foreign matter would interfere with its proper operation. On the morning of the fire, the salamander was in good condition. Ordinarily, a salamander which is in good 477 condition will not start a fire except as the result of a careless inspection or user. On the morning of the fire, Corte and Weed arrived at the Schurgast house at about 8 a.m. They filled the stove by having one man pour kerosene from a can, while the other man held open a hole in the stove. They then lit the stove by igniting a piece of paper and inserting it through the hole into which the kerosene had been poured. Shortly thereafter, Corte and Weed began to work in a second-floor bedroom. Sometime between 9 a.m. and 9:30 a.m., Corte left the house to get coffee for himself and Weed. He returned to the house with coffee after fifteen or twenty minutes. Corte passed through the kitchen when he went out and on his return. On going out he locked the rear door. Upon his return, he went back to the second-floor bedroom where he and Weed were working. Corte and Weed were the only people in the Schurgast house on the morning of the fire. Shortly before 11 a.m., Corte and Weed smelled smoke, and, when they went down to the kitchen, they found the floor surrounding the salamander in flames. Prior to the igniting of the floor around the stove, the only fire in the Schurgast house was the fire in the salamander. The fire in the salamander escaped and ignited the kitchen floor. When first discovered, the fire was confined to the area immediately surrounding the salamander. The kitchen floor consisted of seasoned, laminated plywood, one and one-eighth inches thick. When Corte and Weed got to the kitchen, the salamander was standing upright. They spent from one and one-half to five minutes trying to put out the fire. When they were unable to extinguish it, Corte went to a neighborhood house and telephoned the fire department. The fire department 478 arrived within seven or eight minutes after receiving Corte's call. At this time, the house was engulfed in flames, and the fire was burning rapidly. The house burned to the foundation and collapsed into the basement. The salamander was demolished in the fire. Schurgast had nothing to do with the fire which destroyed his house. His damages are $11,818.40, plus interest of $4712.73. From these facts the trial court concluded: (1) The defendants Corte and Weed, acting as employees of the defendant Schumann within the scope of their employment, were negligent in the inspection and use of Schumann's salamander. (2) The negligence of the defendants Corte and Weed was the proximate cause of the fire which destroyed the Schurgast house; (3) Schurgast is entitled to recover of the defendants damages in the amount of $11,818.40, plus interest of $4712.73. The court's conclusions are to be tested by the finding and not by the evidence. Craig v. Dunleavy, 154 Conn. 100, 105, 221 A.2d 855. "The conclusions reached by the court must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law. Johnston Jewels, Ltd. v. Leonard, 156 Conn. 75, 79, 239 A.2d 500." Pigeon v. Hatheway, 156 Conn. 175, 182, 239 A.2d 523. The defendants assign error in the conclusions reached by the court and contend that the conclusion of negligence is not based on any positive finding of subordinate fact and that it cannot be sustained by resort to any of the evidentiary doctrines of circumstantial evidence, reasonable inference, or res ipsa loquitur. The trial court did not indicate upon which count of the complaint it rendered its judgment. As noted 479 above, the second count of the original complaint did not state a cause of action, and the third count was withdrawn. The judgment obviously was based on the first count, wherein Schurgast alleged specific acts of negligence by the defendants. There was no direct evidence of any particular negligent act by any of the defendants, and the trial court made no finding to that effect. If the case is a proper one for the application of the doctrine of res ipsa loquitur, the plaintiff, by pleading the particular cause of the accident, in no way loses his right to rely thereon. Briganti v. Connecticut Co., 119 Conn. 316, 319, 175 A. 679; Jump v. Ensign-Bickford Co., 117 Conn. 110, 122, 167 A. 90; Firszt v. Capitol Park Realty Co., 98 Conn. 627, 642, 643, 120 A. 300. We have frequently stated the three conditions under which the doctrine might apply: (1) The situation, condition, or apparatus causing the injury must be such that in the ordinary course of events no injury would result unless from a careless construction, inspection or user. (2) Both inspection and user must have been at the time of the injury in the control of the party charged with neglect. (3) The injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured. Briganti v. Connecticut Co., supra, 320. "[T]he doctrine of res ipsa loquitur is a rule of common sense and not a rule of law which dispenses with proof of negligence. It is a convenient formula for saying that a plaintiff may, in some cases, sustain the burden of proving that the defendant was more probably negligent than not, by showing how the accident occurred, without offering any evidence to show why it occurred." Stebel v. Connecticut Co., 90 Conn. 24, 26, 96 A. 171; Lowman v. Housing Authority, 150 Conn. 665, 669, 192 A.2d 883. 480 In the instant case, the court found that ordinarily a salamander stove which is in good condition will not start a fire except as the result of a careless inspection or user; that on the morning in question inspection and use of the stove were within the control of Schumann and his employees, Weed and Corte; that Schurgast had nothing to do with the fire which destroyed his house; that, when Corte and Weed arrived in the kitchen after smelling smoke, the floor surrounding the salamander stove was in flames; and that, prior to the igniting of the floor surrounding the salamander, the only fire in the house was that in the salamander. "Where common experience has demonstrated that no injury would ordinarily result from a situation, condition or apparatus unless there was careless construction, inspection or user, and the construction, inspection and user were all in the control of the party charged with neglect, no voluntary action of the party injured being involved, common sense permits an inference of negligence from proof of the injury and the physical agency inflicting it, without requiring proof of facts pointing to the responsible human cause. The result is simply that such proof, without proof of further facts tending to show negligence, satisfies the plaintiff's duty of producing evidence sufficient to permit the trier, whether court or jury, to draw an inference of negligence. Ruerat v. Stevens, 113 Conn. 333, 337, 155 A. 219. The doctrine permits, but does not compel, such an inference. Fogarty v. M. J. Beuchler & Son, Inc., 124 Conn. 325, 330, 199 A. 550. The doctrine has no evidential force, does not shift the burden of proof and does not give rise to a presumption. Ryan v. George L. Lilley Co., 121 Conn. 26, 30, 183 A. 2. It is but a specific application of the general principle 481 that negligence can be proved by circumstantial evidence." Lowman v. Housing Authority, supra, 670. Although the trial court did not mention the doctrine of res ipsa loquitur by name, it is obvious that it did draw the inference of negligence which it was permitted to do. We have held repeatedly that in no case need specific reference to the doctrine by name be made in a charge to a jury. Ryan v. George L. Lilley Co., supra, 30; Jump v. Ensign-Bickford Co., 117 Conn. 110, 120, 167 A. 90; Firszt v. Capitol Park Realty Co., 98 Conn. 627, 644, 120 A. 300. This is equally true in a case tried to the court, although it would be desirable for the trial court to be specific. The conclusions of the trial court as to negligence and proximate cause cannot be disturbed. The defendants assign error in two rulings on evidence. In the first of these, the defendants objected to the admission in evidence of certain reports of fire engine companies as records kept in the regular course of business on the grounds that the necessary basis for admission as business entries had not been established and that the reports contained hearsay statements. The finding wherein the claimed erroneous ruling is recited was not made in accordance with Practice Book § 648. The obvious purpose of the rule is to permit a proper review by this court of the action of the trial court. A ruling on evidence must be tested by the finding. If it is claimed to be erroneous, the finding must contain facts sufficient to disclose the error. Practice Book § 648; Grievance Committee v. Dacey, 154 Conn. 129, 150, 222 A.2d 339; Morgillo v. Evergreen Cemetery Assn., 152 Conn. 169, 175, 205 A.2d 368. The finding failed to disclose facts 482 from which the materiality and the correctness of the ruling may be determined. Casalo v. Claro, 147 Conn. 625, 629, 165 A.2d 153. This inadequacy of the finding precludes our consideration of this assignment of error. The defendant Weed, called as a witness by Schurgast, testified that inspection was made of the salamander before it was lit and that bricks were placed underneath it. Schurgast then offered in evidence a statement signed by Weed concerning his activities on the day of the fire, in which statement no mention was made of an inspection of the stove or the placing of bricks underneath it. It was offered for the purpose of attacking the credibility of the witness. The defendants objected and took exception on the ground that Schurgast was seeking to establish a fact by the absence of something in the statement and on the further ground that it was not contradictory of Weed's testimony and was not an admission. The statement was inconsistent with the testimony of the witness and was properly admitted in evidence to impeach his testimony. Culetsu v. Dix, 149 Conn. 456, 460, 181 A.2d 116; Sears v. Curtis, 147 Conn. 311, 315, 160 A.2d 742. The ruling of the trial court was correct. We conclude therefore that there is no error on the defendants' appeal from the judgment of the court on the original action. II We turn now to the appeal of the third-party defendant, the Aetna Insurance Company. On February 4, 1966, the trial court granted the motion of Schumann, as a third-party plaintiff, to serve a writ, summons and complaint on Aetna. The third-party complaint alleged the purchase by Schumann 483 of a manufacturers' and contractors' liability policy from Aetna; that this policy was in effect at the time the Schurgast house was destroyed by fire; that, as a result of the fire, Schumann had been sued by Schurgast; that the policy in question covered this loss; and that, despite demand made upon it, Aetna has refused to defend the suit against Schumann, has denied liability for the loss under the coverage of the policy and has refused to pay any judgment which might be rendered against Schumann in the suit against him by Schurgast. In the third-party action, Schumann sought a declaratory judgment declaring (1) that Aetna must defend the suit brought by Schurgast; (2) that the policy covered the events described; and (3) that Aetna must pay any judgment obtained by Schurgast against Schumann up to the limits of the policy. In its answer, Aetna admitted its refusal to defend and its denial of coverage. It also set forth five special defenses. The trial court found the issues on the third-party complaint in favor of Schumann and rendered a declaratory judgment in substantial compliance with the claims for relief in the third-party complaint. The dispute between the parties involves two provisions of the policy. The first concerns exclusion (1), which provides that coverage for injury to or destruction of property does not extend to "property in the care, custody or control of the insured or property as to which the insured for any purpose is exercising physical control," and raises the questions of the meaning of this quoted language and whether it applies to the events and circumstances involved in the destruction by fire of the Schurgast house. The second provision in the policy which the parties seek to have clarified is 484 the meaning and effect of condition 13, a "no action" clause, which provides: "No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company." Aetna contends that, by virtue of this condition in the policy, it could not be impleaded in this action unless a final determination already existed against the insured. Section 52-102a of the General Statutes permits a defendant in any civil action, on obtaining permission of the court, to implead "a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." This language was taken verbatim from Rule 14 (a) of the Federal Rules of Civil Procedure. In a recent case, we said that the purpose of § 52-102a, like that of Rule 14 (a), is to obviate the multiplicity of actions, and we held that, "as in the case of Rule 14 (a), when § 52-102a permits the impleading of one who `is or may be liable' for the claim sued on, the purpose and effect of the quoted words is to accelerate the accrual of the right to assert a claim against the impleaded person." Senior v. Hope, 156 Conn. 92, 96, 239 A.2d 486. Aetna urges, however, that Schumann, the third-party plaintiff, had no standing to institute an action against it since there was no final judgment outstanding against the third-party plaintiff after actual trial, nor was there any written agreement of damages executed by the original plaintiff and the third-party defendant as required by condition 13 of the policy. 485 With the exception of one early decision, the right of an insured to implead his insurer into an action brought by the injured party has been sustained under Federal Rule 14 (a). Schevling v. Johnson, 122 F. Sup. 87, aff'd, 213 F.2d 959; Vaughn v. United States, 225 F. Sup. 890; Barron and Holtzoff, Federal Practice & Procedure § 426.2; 3 Moore, Federal Practice (2d Ed.), ¶ 14.12; see Wright, "Joinder of Claims and Parties under Modern Pleading Rules," 36 Minn. L. Rev. 580, 615. The federal courts have permitted impleader of an insurance company notwithstanding a "no action" clause which prohibits suit against the company until judgment has been rendered against the insured. A leading federal case held that the impleader rule "was promulgated not only for the purpose of serving litigants but as a wise exposition of public policy. The object of the rule was to facilitate litigation, to save costs, to bring all of the litigants into one proceeding, and to dispose of an entire matter without the expense of many suits and many trials. The no-action provision of the policy is neither helpful to the third-party defendant, to the courts, nor generally is it in the interest of the public welfare. Its object is to put weights on the already too slow feet of justice." Jordan v. Stephens, 7 F.R.D. 140, 142; Vaughan v. United States, supra, 891. This statement appears to represent what is now a settled view of the federal courts. "Nor is any different result to be reached by claiming that the right of the insurer not to be impleaded is a `substantive' right which must be respected in federal court in diversity cases. It has been pointed out that the `no action' clause, reasonably construed, means merely that there may be no recovery against the 486 insurer except on the basis of a final judgment against the insured. This right is not inhibited by Rule 14, which merely provides for determination of the insured's claim against his insurer in the tort action against him, but does not result in a judgment against the company except as part of the judgment against the insured." Barron and Holtzoff, Federal Practice & Procedure § 426.2, p. 690. In a recent Massachusetts case, the insured, who was being sued for damages by a guest in his automobile, brought a third-party action against his automobile liability insurer, alleging that the insurer, in breach of its obligation under the policy, had refused to defend the action against the insured. The Massachusetts statute, which is similar to our § 52-102a, provides in pertinent part: "[A] defendant.... may, as third-party plaintiff, enter a writ and have served a summons and third-party declaration upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." Mass. Gen. Laws, c. 231 § 4B. The insurer claimed that it could not be impleaded because of a policy provision which stated: "No action shall lie against the corporation unless ... the amount of the insured's obligation to pay shall have been finally determined .... [N]or shall the corporation be impleaded by the insured or his legal representative." The court held: "If given effect, such a provision would nullify the intent of the Legislature in enacting the impleader statute; for the purpose of the statute is to avoid multiplicity of actions. The Corporation cannot by means of a contract between the parties limit the court's right to determine whether the Corporation is liable to the insured for a claim 487 against the insured until there has been a final judgment on that claim.... Nor can the parties prevent prosecution of the cause by agreeing that the Corporation cannot be impleaded." Jenkins v. General Accident Fire & Life Assurance Corporation, Ltd., 349 Mass. 699, 701, 212 N.E.2d 464. Aetna also urges that, since the original contract of insurance was dated November 1, 1959, the trial court, by its decision, gave retrospective effect to General Statutes § 52-102a, which was adopted in 1965. "It is a rule of construction that legislation is not to be applied retroactively unless the legislature clearly expresses such an intent. Michaud v. Fitzryk, 148 Conn. 447, 448, 171 A.2d 397; E. M. Loew's Enterprises, Inc. v. International Alliance, 127 Conn. 415, 418, 17 A.2d 525; Massa v. Nastri, 125 Conn. 144, 146, 3 A.2d 839; Skinner v. Watson, 35 Conn. 124, 126. The rule is not applied, however, to legislation which is general in its terms and affects only matters of procedure. Such legislation is presumed to have been intended to be applicable to all actions, whether pending or not, in the absence of any expressed intention to the contrary. E. M. Loew's Enterprises, Inc. v. International Alliance, supra; Neilson v. Perkins, 86 Conn. 425, 428, 85 A. 686." Lavieri v. Ulysses, 149 Conn. 396, 401, 180 A.2d 632. The purpose and effect of the statute is to accelerate the accrual of the right to assert a claim against the impleaded person, and it does not affect his substantive rights. Senior v. Hope, 156 Conn. 92, 97, 239 A.2d 486; see Petersen v. Falzarano, 6 N.J. 447, 455, 79 A.2d 50; 3 Moore, op. cit., 14.08. The statute is procedural in nature and applies to pending actions. On January 11, 1960, the day of the fire, there was in force a manufacturers' and contractors' liability 488 policy issued to Schumann by Aetna, the pertinent provisions of which are printed in the footnote.[1] When Schurgast brought the original action, Schumann requested Aetna to defend the action, but Aetna refused on the ground that liability for the damage to the Schurgast property was excluded under the terms of the policy. Later Schumann brought this third-party action against Aetna. Under the terms of the policy, Aetna agreed to 489 "defend any suit against the insured alleging such injury, ... and seeking damages on account thereof, even if such suit is groundless, false or fraudulent." The determination of the question whether Aetna had a duty to defend the original action brought by Schurgast against Schumann depends on whether the complaint in that action stated facts which appear to bring Schurgast's claim of damage within the policy coverage. Missionaries of the Company of Mary, Inc. v. Aetna Casualty & Surety Co., 155 Conn. 104, 110, 230 A.2d 21. The first count of the complaint alleged that Schurgast entered into a written contract with Schumann under the terms of which Schumann was to construct a onefamily, frame house for Schurgast and that Corte and Weed, employees of Schumann, while working on the construction of the house, negligently caused a fire which destroyed the house. This count of the complaint, on its face, appeared to bring the claim within the provisions of the policy which provided coverage for damages because of injury to or destruction of property caused by accident and arising out of the hazards defined, namely, the use of premises and all operations pertaining to the construction of a one-family house. Nothing alleged in this count would appear to indicate that the factual situation set forth therein is covered by exclusion (1) of the policy. The second count attempted to plead the essential elements of the doctrine of res ipsa loquitur but failed to allege negligence. It recited, among other facts, that the inspection and user of the premises and the salamander stove were in the exclusive control of the defendants. The third count sounded in contract and, obviously, did not state a cause of action which would bring it within the coverage of the policy. Whether the second 490 count appeared to do so we need not determine. "Where a complaint in an action against one to whom a policy of liability insurance has been issued states different causes of action or theories of recovery against the insured, and one such cause is within the coverage of the policy but others may not be within such coverage, the insurer is bound to defend with respect to those which, if proved, are within the coverage." 14 Couch, Insurance (2d Ed.) § 51:43; Sims v. Illinois National Casualty Co., 43 Ill. App.2d, 184, 195, 193 N.E.2d 123; Rom v. Gephart, 30 Ill. App. 2d 199, 207, 173 N.E.2d 828; Canadian Radium & Uranium Corporation v. Indemnity Ins. Co., 342 Ill. App. 456, 461, 97 N.E.2d 132; Christian v. Royal Ins. Co., 185 Minn. 180, 182, 240 N.W. 365; see note, 50 A.L.R. 2d 458, 506 § 24. The duty of Aetna to defend the action was clear, and its failure to do so was a breach of its duty to Schumann. In spite of this, Aetna urges that the damage to the Schurgast property arose under circumstances which were within the exclusion clause recited in the policy and that the trial court was in error in concluding that the policy in question covered the events described in the third-party complaint. It is not necesary for us to consider this question. When the insurer is requested by its insured to defend, the insurer must exercise its judgment as to what is required of it under its contractual obligation to its insured. "It could either refuse to defend or it could defend under a reservation of its right to contest coverage under the various avenues which would subsequently be open to it for that purpose. Commercial Contractors Corporation v. American Ins. Co., 152 Conn. 31, 202 A.2d 498; Manthey v. American Automobile Ins. Co., 127 Conn. 516, 520, 18 A.2d 397; Basta v. United *491 States Fidelity & Guaranty Co., 107 Conn. 446, 450, 140 A. 816." Missionaries of the Company of Mary, Inc. v. Aetna Casualty & Surety Co., 155 Conn. 104, 113, 230 A.2d 21. In the instant case, Aetna chose to refuse to defend and, in so doing, breached its contract with Schumann. It is therefore under a duty to pay the judgment obtained against Schumann by Schurgast up to the limit of liability fixed by its policy. Missionaries of the Company of Mary, Inc. v. Aetna Casualty & Surety Co., supra, 114. Since we do not determine whether, as to the third-party complaint, the exclusion clause in the policy covered the events described, the judgment of the trial court must be corrected. There is no error on the defendants' appeal in the original action; there is error in part on the appeal of the third-party defendant in the third-party action, the judgment is set aside, and the case is remanded with direction to render judgment declaring that (1) the defendant, the Aetna Insurance Company, was obligated to defend the lawsuit brought against Roger M. Schumann by Anselm Schurgast and (2) the defendant, the Aetna Insurance Company, is under a duty to pay the judgment obtained by Anselm Schurgast against Roger M. Schumann within the limit of liability fixed by its policy. In this opinion the other judges concurred. NOTES [1] "[INSURING AGREEMENTS] Coverage BProperty Damage Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the hazards hereinafter defined." "DEFINITION OF HAZARDS "Division 1PremisesOperations. The ownership, maintenance or use of premises and all operations." "DESCRIPTION OF HAZARDS "The rating classifications under the Description of Hazards do not modify the exclusions or other terms of this Policy. "1. PremisesOperations "Carpentry in the construction of detached private residences for occupancy by one or two families and private garages in connection therewith" "EXCLUSIONS "This policy does not apply: ... "(d) under divisions 1, 2 and 3 of the Definition of Hazards, to liability assumed by the insured under any contract or agreement; "(1) under coverages B and D, to injury to or destruction of ... "(3) ... [to] property in the care, custody or control of the insured or property as to which the insured for any purpose is exercising physical control...." "CONDITIONS "(Unless otherwise noted, the conditions apply to all coverages) ... " (13) Action Against CompanyCoverages A, B and D. "No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2857591/	Sierra-final IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-91-306-CV AUSTIN TRANSPORTATION STUDY POLICY ADVISORY COMMITTEE AND STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, APPELLANTS vs. THE SIERRA CLUB, SAVE BARTON CREEK ASSOCIATION, ALLANDALE NEIGHBORHOOD ASSOCIATION, TEXAS ASSOCIATION FOR PUBLIC TRANSPORTATION AND KOENIG LANE BUSINESS ASSOCIATION, APPELLEES FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT NO. 404,930, HONORABLE MARY PEARL WILLIAMS, JUDGE PRESIDING Austin Transportation Study Policy Advisory Committee ("ATSPAC") and the State Department of Highways and Public Transportation (1) ("SDHPT") appeal an award of attorney's fees and costs under the open meetings act. We will affirm the judgment of the trial court. BACKGROUND This appeal is the latest chapter in a long fought battle over transportation planning for the Austin area which has pitted neighborhoods, local business, and environmental groups against the planning board and other governmental entities. A summary of the facts leading to this dispute aides an understanding of the context of this appeal. In 1984, by mutual agreement, the State of Texas, the City of Austin (the "City"), and Travis County, Texas (the "County"), organized ATSPAC. Subsequently, ATSPAC was designated as a "Metropolitan Planning Organization" pursuant to the requirements for federal highway funding. See Federal-Aid Highway Act of 1962, Pub. L. No. 87-866, § 9(a), 76 Stat. 1145, 1148, amended by Federal-Aid Highway Act of 1970, Pub. L. No. 91-605, § 143, 84 Stat. 1713, 1737, amended by Federal-Aid Highway Act of 1978, Pub. L. No. 95-599, § 169, 92 Stat. 2689, 2723 (23 U.S.C. § 134, since amended). The primary function of ATSPAC is the drafting of planning documents for submission to the federal government in connection with applications for federal highway funding. During 1986, ATSPAC adopted several plans and documents pursuant to this function. For varied reasons, the appellees, The Sierra Club, Save Barton Creek Association, Allandale Neighborhood Association, Texas Association for Public Transportation, and Koenig Lane Business Association, (collectively, "the Sierra Club") opposed the proposals set out in these documents. The Sierra Club became aware that ATSPAC, in the course of adopting the planning documents, had failed to comply fully with the notice provisions of the open meetings act, Tex. Rev. Civ. Stat. Ann. art. 6252-17 (West 1970 & Supp. 1992) ("the Act"). The Sierra Club filed suit against ATSPAC seeking a declaratory judgment that the Act applied to ATSPAC and injunctive relief to set aside any actions taken in violation of the Act. Later, the Sierra Club joined the City, the County, SDHPT, and other governmental entities as defendants. On ATSPAC's motion, the trial court rendered a summary judgment dismissing the cause on the grounds that ATSPAC was not a "governmental body" and was not subject to the requirements of the Act. By the same order, the trial court dismissed the lawsuit against the City, the County, SDHPT, and the other governmental entities. However, the dismissal as to these parties was without prejudice to Sierra Club's right to refile. On appeal, this Court determined that ATSPAC was a "special district" as defined in section 3A(f) of the Act, and thus was subject to compliance with its provisions; we remanded the cause for trial. See Sierra Club v. Austin Transp. Study Policy Advisory Comm., 746 S.W.2d 298 (Tex. App.--Austin 1988, writ denied). During the pendency of the first appeal, the Texas Legislature amended the Act to provide an award of attorney's fees for a substantially prevailing party. (2) The amendment became effective August 31, 1987. Act of June 18, 1987, 70th Leg., R.S., ch. 549, § 7, 1987 Tex. Gen. Laws 2211, 2214. Under this amendment, three inquiries were relevant to an award of attorney's fees -- whether the party had substantially prevailed in the litigation, whether the suit was bought in good faith, and whether the governmental body's conduct had a reasonable basis in law. After the case was remanded, the Sierra amended its petition to include a prayer for attorney's fees under section 3(b) and again joined the City, the County, and SDHPT to the suit. The Sierra Club then moved for a partial summary judgment to determine whether ATSPAC violated the Act in the conduct of its meetings. The Sierra Club asked for injunctive relief and for attorney's fees under section 3(b) of the Act and the Uniform Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code § 37.009 (West 1986). After a hearing on December 8, 1990, the trial court granted the Sierra Club's motion for partial summary judgment in part and denied defendants' cross-motions for summary judgment. The trial court's decision was announced, by letter addressed to counsel and filed with the district clerk, on January 10, 1990. However, due to disagreements on the wording of the order, a written order of the partial summary judgment was not signed until March 20, 1990. The trial court held that ATSPAC had not fully complied with the Act on thirty-three occasions; that the actions taken at those meetings had been properly validated at a subsequent meeting held in compliance with the Act, thereby mooting the Sierra Club's claims for injunctive relief; that injunctive relief was denied; and that the Sierra Club "had substantially prevailed in this litigation and that it is equitable and just to award [the Sierra Club] reasonable and necessary attorney's fees and costs in this case." (Emphasis added). The court's partial summary judgment held the defendants, ATSPAC, SDHPT, the County, and the City, jointly and severally liable for attorney's fees and costs. The parties did not present evidence on the amount of fees. Accordingly, the trial court left the amount of fees for determination by further proceedings. After attempting to negotiate the amount of attorney's fees, the Sierra Club moved for a summary judgment to determine the amount. Defendants opposed the motion on the ground that the factors set out in section 3(b) were jury questions, and thus, were not proper for determination by summary judgment. The trial court denied the motion for summary judgment. The Sierra Club filed a second motion for partial summary judgment urging the court to determine as a matter of law the issues of the Sierra Club's good faith and ATSPAC's reasonable basis in law. Defendants successfully opposed this motion, and the matter proceeded ultimately to a two-week jury trial. At defendants' insistence, the trial court submitted all the issues pertinent to an award of attorney's fees under section 3(b) to the jury. The jury found: that (1) the Sierra Club had substantially prevailed in the litigation; (2) the Sierra Club had brought the suit in good faith; (3) ATSPAC's conduct did not have a reasonable basis in law; and (4) the Sierra Club was entitled to an award of reasonable attorney's fees and costs totalling $146,300 through the entry of judgment. The jury also made findings of reasonable attorney's fees for each step up the appellate ladder. After the verdict, the City and the County reached settlements with the Sierra Club and were dismissed from the cause before the rendition of judgment. ATSPAC and SDHPT each filed motions to disregard the jury finding and for judgment non obstante veredicto. The trial court rendered a final judgment in accordance with the jury findings holding ATSPAC and SDHPT jointly and severally liable for the attorney's fees. Defendants filed motions for a new trial and motions for a remittitur of the attorney's fees award. The trial court denied each of these motions. In the order denying the motions, however, the trial court stated its own findings on the issues. The trial court found, contrary to the jury findings, that ATSPAC's conduct had a reasonable basis in law. The trial court agreed with the other jury findings and held that the amount of the award was a jury question. To avoid the necessity of a retrial if it were determined on appeal that the issue of the amount of fees under section 3(b) was for determination by the court, the trial court rendered a conditional finding that $102,550 was a reasonable amount of attorney's fees. However, the trial court did not modify the judgment previously rendered on the jury findings. ATSPAC appeals the judgment on twelve points of error and SDHPT brings four additional points of error. DISCUSSION AND HOLDING Retrospective Application of Statute In ATSPAC's first point of error and SDHPT's fourth point of error, each argue that the attorney's-fee provisions of section 3(b) of the Act cannot be applied retrospectively. This section became effective August 31, 1987. Appellants argue that this section cannot be applied to award attorney's fees in an action based on violations of the Act occurring before that date. Appellants argue that a retrospective application of section 3(b) to this case would violate article I, section 16 of the Texas Constitution. (3) See Ex parte Abell, 613 S.W.2d 454 (Tex. 1981); Government Personnel Mut. Life Ins. Co. v. Wear, 251 S.W.2d 525 (Tex. 1952); Houston Indep. Sch. Dist. v. Houston Chronicle, 798 S.W.2d 580 (Tex. App.--Houston [14th Dist. 1990, writ denied); International Sec. Life Ins. Co. v. Mass, 458 S.W.2d 484 (Tex. Civ. App.--Houston [1st Dist.] 1970, writ ref'd n.r.e.). The parties disagree as to whether any of ATSPAC's violations of the Act occurred after the effective date of the attorney's-fees provisions. While the record reflects that several ATSPAC meetings were held in violation of the Act after August 31, 1987, all of the substantive actions that the Sierra Club sought to have set aside were taken at meetings before that date. The chronology of the violations, however, is not important to the resolution of this point. ATSPAC first raised the issue of the retrospective application of section 3(b) in its first supplemental answer, filed March 2, 1990, and SDHPT first raised the issue in its motion to disregard the jury findings and for judgment non obstante veredicto, filed January 11, 1991. Each of these were filed after the date of the hearing on the Sierra Club's first motion for partial summary judgment, December 8, 1989. The trial court rendered a partial summary judgment on March 20, 1990, holding that the Sierra Club had substantially prevailed in the litigation and was entitled to an award of reasonable attorney's fees. Neither ATSPAC nor SDHPT had filed a pleading raising the constitutional issue at the time of the hearing. See Tex. R. Civ. P. 166-A. Pleadings may be amended within seven days of trial or thereafter only upon leave of court. Tex. R. Civ. P. 63. A summary judgment hearing is a trial for purposes of Rule 63. Energo Int'l Corp. v. Modern Indus. Heating, Inc., 722 S.W.2d 149, 151 (Tex. App.--Dallas 1986, no writ); Leche v. Stautz, 386 S.W.2d 872, 873 (Tex. Civ. App.--Austin 1965, writ ref'd n.r.e.). The record does not reflect any attempt by ATSPAC to obtain leave of court to file its amended pleading after the hearing. Therefore, ATSPAC's first supplemental answer filed after the hearing was not properly on file at the time of the hearing. Tex. R. Civ. P. 63; Claude Regis Vargo Enter., Inc. v. Bacarrisse, 578 S.W.2d 524, 528-29 (Tex. Civ. App.--Houston [14th Dist.] 1979, writ ref'd n.r.e.); Energo, 722 S.W.2d at 151. A constitutional challenge to a statute is an affirmative defense that must be pleaded to avoid waiver. Tex. R. Civ. P. 94; Leckey v. Warren, 635 S.W.2d 752, 753 (Tex. App.--Corpus Christi 1982, no writ); United States Reading Lab., Inc. v. Brockette, 551 S.W.2d 531, 532-33 (Tex. Civ. App.--Austin 1977, no writ); City of S. Houston v. Sears, 488 S.W.2d 169, 173-74 (Tex. Civ. App.--Houston [14th Dist.] 1972, no writ). By failing to properly plead this issue before the rendition of the partial summary judgment, ATSPAC and SDHPT waived the constitutional challenge. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Energo, 722 S.W.2d at 151. Accordingly, we overrule ATSPAC's first point of error and SDHPT's fourth point of error. Res Judicata and Collateral Estoppel In its second point of error, ATSPAC argues that the doctrines of collateral estoppel and res judicata bar the attorney's fees issues because of the dismissal of a related case in federal court. ATSPAC first raised these issues in its motion to disregard jury findings and for judgment non obstante veredicto. The doctrines of res judicata and collateral estoppel are affirmative defenses that are waived unless affirmatively pleaded. Tex. R. Civ. P. 94; Traweek v. Larkin, 708 S.W.2d 942, 945 (Tex. App--Tyler 1986, writ ref'd n.r.e.); City of Houston v. Houston Chronicle, 673 S.W.2d 316, 321 (Tex. App.--Houston [1st Dist.] 1986, no writ); Green v. Doakes, 593 S.W.2d 762, 764 (Tex. Civ. App.--Houston [1st Dist.] 1979, no writ). ATSPAC has waived these defenses by failing to raise them in its pleadings. Therefore, we overrule ATSPAC's second point of error. Sufficiency of the Evidence In its seventh point of error, ATSPAC argues that the trial court erred in holding as a matter of law that the Sierra Club had substantially prevailed even though no injunctive relief was granted and none of the actions of ATSPAC were set aside. In its ninth point of error, ATSPAC argues that the trial court erred in holding as a matter of law that the Sierra Club had brought the action in good faith even though some of the Sierra Club's representatives had received actual notice of ATSPAC meetings, had appeared, and had participated in those meetings. The wording of these points of error is confusing as these issues were resolved by the jury findings. These points appear to challenge the legal sufficiency of the evidence to support the jury findings. Assuming the Sierra Club had the burden of proof to establish all issues relative to attorney's fees, we shall consider these points as no-evidence points. In deciding a no-evidence point, we must consider only the evidence and inferences tending to support the finding of the trier of fact and disregard all evidence and inferences to the contrary. Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex. 1986), cert. denied, 111 S. Ct. 135 (1990); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). See generally William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515 (1991). If points seven and nine complain that the court erred in not granting ATSPAC's motion to disregard the jury findings and for judgment non obstante veredicto, the test is essentially the same. For a trial court to disregard a jury's findings and to grant a motion for judgment non obstante veredicto, "it must be determined that there is no evidence upon which the jury could have made the findings relied upon." Exxon Corp. v. Quinn, 726 S.W.2d 17, 19 (Tex. 1987); Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex. 1986). We review the record in the light most favorable to the jury findings, considering only the evidence and inferences that support them and rejecting the evidence and inferences contrary to the findings. Navarette, 706 S.W.2d at 309. The Sierra Club presented evidence at trial by live testimony, deposition testimony, and documentation. We have reviewed the record and conclude that some evidence exists to support the jury findings that the Sierra Club brought the suit in good faith and substantially prevailed. Therefore, we overrule ATSPAC's seventh and ninth points of error. Additionally, if these points complain of the submission of these issues to the jury, they are barred by the doctrines of invited error and waiver, as discussed below. In its third, sixth, and eighth points of error, ATSPAC challenges the factual sufficiency of the evidence supporting the jury findings that (1) ATSPAC's conduct did not have a reasonable basis in law; (2) the Sierra Club substantially prevailed in the litigation; and (3) the Sierra Club brought the suit in good faith. When reviewing a jury verdict to determine the factual sufficiency of the evidence, we must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re Estate of King, 244 S.W.2d 660, 661 (Tex. 1951); see also Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986); see generally Powers, & Ratliff, supra. In this case, the record reflects significant evidence to support each of the jury findings. In the course of the two-week trial, the Sierra Club presented evidence on each element of section 3(b). We conclude that the jury findings are not so contrary to the overwhelming weight of the evidence as to be manifestly unjust. Accordingly, we overrule ATSPAC's points of error numbers three, six, and eight. Failure to Modify Judgment In its fourth and fifth points of error, ATSPAC argues that the trial court erred in failing to render judgment based on the court's independent findings that ATSPAC's actions had a reasonable basis in law and that a smaller amount of fees should be awarded. Both sides have extensively discussed the proper procedure in dividing the attorney's fees issues between the judge and the jury under the Act, in light of the decision in Donwerth v. Preston II Chrysler-Dodge, Inc., 775 S.W.2d 634 (Tex. 1989). However, we need not address that issue to dispose of these points. Appellants are barred from complaining of the submission of these issues to the jury by the doctrines of invited error and waiver. At trial, ATSPAC and SDHPT requested jury findings on the four issues related to an award of attorney's fees under section 3(b): (1) whether the Sierra Club substantially prevailed in the litigation; (2) whether ATSPAC's actions had a reasonable basis in law; (3) whether the Sierra Club brought the suit in good faith; and (4) what was a reasonable amount of attorney's fees. These issues were submitted to the jury and the trial court rendered judgment based upon the jury's findings. Essentially, ATSPAC argues that the trial court erred in submitting these issues to the jury, as ATSPAC requested. ATSPAC contended below that all the relevant issues must be submitted to the jury. It now argues that the court must make the threshold determinations. A party may not request that the trial court take a particular action and then complain on appeal that the court committed error in granting its request. Northeast Tex. Motor Lines, Inc. v. Hodges, 158 S.W.2d 487, 488 (Tex. 1942). A party may not argue a theory on appeal that is different from that presented to the court below. Furnace v. Furnace, 783 S.W.2d 682, 684 (Tex. App.--Houston [14th Dist.] 1989, writ dism'd w.o.j.) (holding that appellant who argued at trial that trust agreement was ambiguous and should go to jury for interpretation could not on appeal asserted that the trust agreement was unambiguous and should be interpreted as a matter of law). A party who requested the submission cannot urge an error in submitting an issue to the jury. Corpus Christi Nat'l Bank v. Gerdes, 551 S.W.2d 521, 525 (Tex. Civ. App.--Corpus Christi 1977, writ ref'd n.r.e.) (holding that bank which requested submission of trustee compensation and attorney's fees issues to jury could not complain on appeal that these were issues for the trial judge). Because ATSPAC's complaint on the submission of these issues to the jury is barred, we overrule its fourth and fifth points of error. Limited Remand In its tenth point of error, ATSPAC argues that this Court's remand of this cause on the first appeal was limited to a trial on ATSPAC's compliance with the Act, and, thus, attorney's fees could not properly be awarded. We determined in the prior appeal that the Act applied to ATSPAC. Sierra Club, 746 S.W.2d at 301. Therefore, ATSPAC was required to comply with all provisions of the Act. Because the prior appeal was from a summary judgment rendered on the grounds that ATSPAC was not a governmental body, there was no evidence in the record by which we could determine whether ATSPAC had complied with the Act and we remanded the cause. Our prior opinion stated that the cause was remanded "for trial on the issue of whether ATSPAC complied with the applicable provisions of [the Act]." Sierra Club, 746 S.W.2d at 301. ATSPAC argues that the trial court was limited on remand to making a factual determination of compliance with the notice provisions of the Act. We disagree. By its terms, section 3(b) applied to any action brought under section 3 to enjoin or void actions taken in violation of the Act. See Tex. Rev. Civ. Stat. Ann. art. 6252-17 § 3(b) (West Supp. 1992). We conclude that the issue of attorney's fees under the Act falls within the scope of a trial to determine compliance with the Act. Even if the remand was limited, the trial court is given a reasonable amount of discretion to comply with the mandate. Texacally Joint Venture v. King, 719 S.W.2d 652, 653 (Tex. App.--Austin 1986, writ ref'd n.r.e.). The doctrine of "the law of the case" prohibits the relitigation of issues decided in the previous appeal. Texacally Joint Venture, 719 S.W.2d at 653; Miller v. Winn, 28 S.W.2d 578, 580 (Tex. Civ. App.--Fort Worth 1930, writ ref'd). We previously determined the applicability of the Act to ATSPAC. Therefore, under the law of the case, ATSPAC is barred from challenging the Act's applicability in this appeal. We overrule ATSPAC's tenth point of error. Attorney's Fees Incurred in Collection of Fees In its eleventh point of error, ATSPAC argues that section 3(b) does not authorize an award of attorney's fees accrued in efforts to collect previously awarded attorney's fees incurred in litigation of the merits. We disagree. Reasonable attorney's fees may be awarded to any substantially prevailing party under section 3(b). Appellants cite no authority for the proposition that this award is limited to fees incurred on the merits. We see no reason that a substantially prevailing party should not recover attorney's fees incurred in collecting previously awarded attorney's fees. To hold otherwise would encourage bad-faith delays and resistance to attorney's-fees judgments. Additionally, the jury made a separate finding that the Sierra Club was entitled to $59,000 in attorney's fees incurred after the entry of the partial summary judgment. Thus, the jury rejected the argument that under principals of fairness fees should not be awarded for attorney's fees collection efforts. We overrule ATSPAC's eleventh point of error. Governmental Immunity In its second point of error, SDHPT contends that it is not subject to an award of attorney's fees because it possesses government immunity. Absent an express waiver of governmental immunity from liability, a party cannot obtain an award of attorney's fees from a governmental unit. Texas Dep't of Human Servs. v. Methodist Retirement Servs., Inc., 763 S.W.2d 613, 614-15 (Tex. App.--Austin 1989, no writ); Texas Employment Comm'n v. Camarena, 710 S.W.2d 665 (Tex. App.--Austin 1986), rev'd on other grounds, 754 S.W.2d 149 (Tex. 1988). Because by its terms the Act applies only to governmental bodies and because section 3(b) of the Act expressly provides for an award of attorney's fees for a substantially prevailing party, whether "plaintiff or defendant," we conclude that section 3(b) operates as an express waiver of governmental immunity from liability. Tex. Rev. Civ. Stat. Ann. art. 6252-17 §§ 1(c), 2(a), & 3(b) (West Supp. 1992). Therefore, we overrule SDHPT's second point of error. Joint and Several Liability of SDHPT In its first point of error, SDHPT argues that the trial court erred in rendering judgment against SDHPT and ATSPAC jointly and severally. SDHPT contends that because SDHPT had no authority or control over the operations of ATSPAC it cannot be held jointly and severally liable with ATSPAC as a partner or joint enterprise. SDHPT also argues that ATSPAC is an entity created under federal law and as such is an arm of the federal government and not a state agency. The Sierra Club replies that SDHPT, as one of the governmental entities which created and controlled ATSPAC, is liable for ATSPAC's actions. The Sierra Club's apparent basis for holding SDHPT, the County, and the City liable with ATSPAC is that the parent entities entered into a joint venture in forming ATSPAC and, thus, were jointly liable for ATSPAC's actions. The elements of a joint venture are: (1) community of interest; (2) joint right of control; and (3) sharing of profits, losses, and costs or expenses. Brown v. Cole, 291 S.W.2d 704 (Tex. 1956); Great Am. Mortg. Investors v. Louisville Title Ins. Co., 597 S.W.2d 425, 431 (Tex. Civ. App.--Fort Worth 1980, writ ref'd n.r.e.). Whether the given facts in a particular case establish the existence of a joint venture, or whether the evidence raises a fact issue on the question, is an issue of law to be determined by the court. Tex-Co Grain Co. v. Happy Wheat Growers, Inc., 542 S.W.2d 934, 936 (Tex. Civ. App.--Amarillo 1976, no writ); Price v. Wrather, 443 S.W.2d 348 (Tex. Civ. App.--Dallas 1969, writ ref'd n.r.e.). The Sierra Club does not present any authority and we are aware of no authority making state agencies strictly liable for the actions of subordinate "special districts," metropolitan planning organizations, or other jointly created governmental entities. Additionally, there is nothing in the agreement between SDHPT, the County, and the City expressly agreeing to liability for ATSPAC's actions. Therefore, the issue of joint and several liability depends on a determination of the relationship between ATSPAC and its parent entities. The joint and several liability of SDHPT and the other defendants was determined by the partial summary-judgment the trial court rendered on January 10, 1990. At the summary-judgment hearing, the Sierra Club argued SDHPT's liability based on the following: (1) SDHPT, the County, and the City created ATSPAC by written agreement; (2) the agreement controlled ATSPAC's voting membership, functions, area of coverage, senior staff duties, budget process, and dissolution procedures; (3) ATSPAC received $23,800 from the state and Travis County in fiscal year 1987-1988 and $25,400 from the state and Travis County in fiscal year 1988-1989; and (4) SDHPT provided additional support for ATSPAC in the form of legal services and funding for extraordinary expenses, such as consultant's fees. The Sierra Club supported these allegations by affidavits, deposition testimony, and documentation. The Sierra Club argued that since "SDHPT, Travis County, and City of Austin control absolutely [ATSPAC's] existence, organization, and functions, and because SDHPT and Travis County supply by far the bulk of [ATSPAC's] operating resources, all defendants should be held jointly and severally liable." The standards for reviewing a summary judgment are well established: (1) The movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). SDHPT did not object to the summary-judgment proof the Sierra Club offered and did not file a response to the Sierra Club's motion. Instead, SDHPT relied only on its previously filed motion for summary judgment that alleged that it was protected by governmental immunity and that the Sierra Club failed to allege a cause of action against SDHPT. Because SDHPT did not file a response to the Sierra Club's motion for partial summary judgment, SDHPT is limited on appeal to a challenge of the legal sufficiency of the Sierra Club's summary-judgment proof. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d at 678. Although SDHPT offered additional testimony at the jury trial concerning its relationship with ATSPAC, the partial summary judgment had established SDHPT's joint and several liability for the jury award of attorney's fees. Accordingly, the issue of the joint and several liability of SDHPT and the other defendants was not submitted to the jury. At the conclusion of the jury trial on the amount of attorney's fees, the trial court merely incorporated its prior interlocutory ruling of joint and several liability into the final judgment. Therefore, we will not consider the jury-trial testimony in reviewing this point. Gandara v. Novasad, 752 S.W.2d 740, 743 (Tex. App.--Corpus Christi 1988, no writ). SDHPT has failed to bring a complete record of the summary-judgment proceedings on appeal. The transcript does not contain the depositions the Sierra Club presented to the court as summary-judgment proof. Therefore, we must presume that the omitted material supported the trial court's judgment. De Santis v. Wackenhut Corp., 793 S.W.2d 670, 689 (Tex. 1990), cert. denied, 111 S. Ct. 755 (1990). If the appellate record fails to contain an affidavit or deposition filed in support of the motion for summary judgment, the trial court's judgment will be affirmed on appeal. See Crown Life Ins. Co. v. Gonzalez, 820 S.W.2d 121, 122 (Tex. 1991). In the agreement, which is part of the record, SDHPT, the County, and the City, provided for joint participation, control, and sharing of the expenses of ATSPAC by the parties. This evidence supports a finding that SDHPT entered into a joint venture in regard to ATSPAC. Under the presumption that the missing deposition evidence supports the judgment, we cannot conclude that the trial court erred in finding SDHPT jointly and severally liable as a matter of law. Accordingly, we overrule SDHPT's first point of error. Finality of Prior Dismissal of SDHPT In its third point of error, SDHPT argues that its prior dismissal from the suit was a final judgment and barred any further relief as to SDHPT. We disagree. In its order dismissing SDHPT from the suit, the court expressly removed "with prejudice to refile same" from the order, making the dismissal without prejudice. Thus, this order by its terms had no preclusive effect on the Sierra Club's claims against SDHPT and the other dismissed defendants. The Sierra Club properly rejoined SDHPT to the lawsuit before the final judgment. We overrule SDHPT's third point of error. Attorney's Fees on Appeal In its twelfth point of error, ATSPAC argues that an award of attorney's fees on appeal is not proper if the judgment below is reversed or reformed. Having found no reason to reverse or reform the trial court judgment, we overrule this point. CONCLUSION We affirm the judgment of the trial court. Jimmy Carroll, Chief Justice [Before Chief Justice Carroll, Justices Jones and Kidd] Affirmed Filed: November 25, 1992 [Publish] 1. 1 Now designated as the Texas Department of Transportation. 2. 2 "In an action brought under this section, a court may assess costs of litigation and reasonable attorney's fees incurred by a plaintiff or defendant who substantially prevails. In exercising its discretion, the court shall consider whether the conduct of the government body had a reasonable basis in law and whether the litigation was brought in good faith." Tex. Rev. Civ. Stat. Ann. art 6252-17 § 3(b) (West Supp. 1992) (emphasis added). 3. 3 Texas Const. art. I, § 16 provides: "No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligations of contracts, shall be passed."	01-03-2023	09-05-2015
https://www.courtlistener.com/api/rest/v3/opinions/2857599/	IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-91-188-CR MILDRED ELAM, APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY NO. 337,341, HONORABLE WILFRED AGUILAR, JUDGE PRESIDING Appellant Elam appeals her conviction for criminal trespass. Tex. Penal Code Ann. § 30.05 (West 1989 & Supp. 1992). After the jury found appellant guilty, the trial court assessed her punishment at confinement in the county jail for forty-five days. Appellant advances five points of error. First, appellant contends that the trial court was disqualified from sitting because of an inflammatory newspaper advertisement by the Texas Abortion Rights Action League "showing a disqualifying interest in the case and sufficient bias to require recusal." Second, appellant contends that the trial court erred in refusing to permit her the opportunity to make bills of exception before the jury was given the court's charge. Third and fourth, appellant complains that the trial court erred in its remarks to the jury panel for the case, and later to the jurors selected, that the case would be finished that day even if "we stay here" until 1:00 a.m. the next morning. Fifth, appellant argues that the trial court erred in refusing to give a jury instruction on "the justification defense of necessity." Appellant does not challenge the sufficiency of the evidence to sustain her 1990 conviction for criminal trespass on December 9, 1988, at the Ladies Center in Austin, a clinic handling pregnancy terminations. In her first point of error, appellant contends that the "trial court committed error by sitting in the case after he had allowed the use of his name in connection with a large and highly biased and inflammatory advertisement by the Texas Abortion Rights Action League that appeared on B3 of the Thursday, January 22, 1987, edition of the Austin American-Statesman showing a disqualifying interest in the case and sufficient bias to require recusal." Article V, § 11 of the Texas Constitution provides: No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case. Tex. Const. art. V, § 11. No judge or justice of the peace shall sit in any case where he may be the party injured, or where he has been of counsel for the State or the accused, or where the accused or the party injured may be connected with him by consanguinity or affinity within the third degree. Tex. Code Crim. Proc. Ann. art. 30.01 (West 1989). "The Court of Criminal Appeals has held that the grounds of disqualification stated in the Texas Constitution [art. V, § 11] and the Code of Criminal Procedure are exclusive." Ricondo v. State, 657 S.W.2d 439, 447 (Tex. App.--San Antonio 1983, no pet.) (citing Ex Parte Largent, 162 S.W.2d 419, 426 (Tex. Crim. App. 1942) (on motion for rehearing)). It would appear then that a disqualification of a trial judge in a criminal matter must comply with the strict requirements of the constitutional and statutory criminal procedure provisions. See Cumpian v. State, 812 S.W.2d 88, 91 (Tex. App.--San Antonio 1991, no pet.). To the list of constitutional and statutory prohibitions, the Court of Criminal Appeals has added "judicial bias" so long as it is shown to be of such an extent as to deny a defendant due process of law. McClenan v. State, 661 S.W.2d 108, 109 (Tex. Crim. App. 1983); Cumpian, 812 S.W.2d at 91; Crawford v. State, 719 S.W.2d 240, 242-43 (Tex. App.--Eastland 1986, no pet.). Although it is not altogether clear from appellant's brief, it appears that appellant is relying upon the McClenan addition -- judicial bias of such extent as to deny a defendant due process of law. In the instant case, there was no motion to disqualify or recuse the trial judge. The issue was not raised at trial in any manner. It has been said, however, that the issue of the disqualification of the trial judge may be raised at any time. See Gamez v. State, 737 S.W.2d 315, 318 (Tex. Crim. App. 1987); Cantu v. State, 802 S.W.2d 349, 350-51 (Tex. App.--San Antonio 1990, pet. ref'd). Appellant asserts that the newspaper advertisement in question was filed with the county clerk sometime after the trial. The State contends that the newspaper advertisement is not in the appellate record. It is certainly not at the page number to which appellant directs our attention, and our own search has failed to uncover the advertisement. If the advertisement was in the record under the circumstances described, it would be doubtful whether this Court could consider the same. Shields v. State, 820 S.W.2d 831, 833 (Tex. App.--Waco 1991, no pet.). Just because a document appears in the transcript does not automatically mean that it can be considered a part of the record on appeal. Id. Appellant does describe the advertisement in great detail in her brief as a pro-choice, abortion-type ad. Appellant asserts that the name of "Wilfred Aguilar" appears in this 1987 advertisement as a contributor, and that name "is the fourth name from the top of the left most of six columns of names in the advertisement." Appellant assumes the name "Wilfred Aguilar" in the advertisement automatically refers to the trial judge in this cause. An appellate court cannot accept as fact either allegations or assertions in an appellate brief which are not supported by the record. See Vanderbilt v. State, 629 S.W.2d 709, 717 (Tex. Crim. App. 1981), cert. denied, 456 U.S. 910 (1982). Beck v. State, 573 S.W.2d 786, 788 (Tex. Crim. App. 1978); State v. Pierce, 816 S.W.2d 824, 831 n.8 (Tex. App.--Austin 1991, no pet.); Cumpian, 812 S.W.2d at 91. Under the circumstances presented, we are in no position to apprise appellant's first point of error. The burden is on the appellant to see that a sufficient record is presented to show error requiring reversal. Tex. R. App. P. 50(d). The first point of error is overruled. In her second point of error, appellant contends that the trial court erred in "closing the door" by refusing her the opportunity to perfect her bills of exception before the jury was given the court's charge. In parentheses after the point of error, reference is made to certain pages of the record apparently where the matter complained of is to be found. See Tex. R. App. P. 74(d). Thereafter, however, appellant only cites authorities and offers no argument or such discussion of the facts as may be requisite to maintain the point at issue. See Tex. R. App. P. 74(f). Appellant cites two cases. One is a federal case clearly not on point, and the other is a 1965 Texas civil case involving the Texas Rules of Civil Procedure. Appellant does cite Tex. R. Crim. Evid. 103(a)(2) and Tex. R. App. P. 52(b) but does not explain how these rules are applicable to the facts of the instant case. Mere citation of authorities without a discussion of the facts showing error is insufficient argument of the point of error. Hawkins v. State, 807 S.W.2d 874, 875 (Tex. App.--Beaumont 1991, pet. ref'd); Tex. R. App. P. 74(f). Moreover, mere reference to record pages does not sufficiently identify the court's actions complained of in an appellate brief. Cf. Melton v. State, 713 S.W.2d 107, 114 (Tex. Crim. App. 1986). Appellant has failed to properly brief the point of error and nothing is presented for review. Hernandez v. State, 817 S.W.2d 744, 746 (Tex. App.--Houston [1st Dist.] 1991, no pet.) (defendant who offered no argument under point of error, merely transcribing verbatim the proceedings at trial, presented nothing for review). The right to make an offer of proof or to perfect a bill of exception is absolute if the evidence is excluded by the trial court, in light of the fact an appeal may be lost for lack of preservation of error. Tatum v. State, 795 S.W.2d 569, 571 (Tex. Crim. App. 1990); Spence v. State, 758 S.W.2d 597, 599 (Tex. Crim. App. 1985). Further, briefing rules are to be construed liberally. See Tex. R. App. P. 74(p). Therefore, we have examined the pages of the record to which reference is made. It appears that appellant refers to the refusal of the trial court to permit her to perfect bills of exception as to the testimony of two witnesses, although one is not named. Father Robert Becker, a Catholic priest, was called as a defense witness. When he was asked what he understood as a Catholic priest to be "the morality of being at a Rescue (apparently a sit-in at an abortion clinic)," the trial court sustained the State's objection on the basis of relevancy. When the appellant asked to perfect a bill of exception, the trial court refused, pointing out that the information sought had already been preserved for appeal in a pretrial hearing. Appellant then asked about perfecting a bill of exception regarding her "next witness." "I would also like for him to give medical testimony, again, for the sake of [sic] if I want to appeal it, so that I can use him." Again, the trial court pointed out that the medical testimony was presented at a pretrial hearing. The offer to make the bill of exception was refused. Appellant, although appearing pro se, did not dispute that the matters were covered at the time of the pretrial hearing and never contended that her proposed bills of exception would relate to matters outside the pretrial record. Appellant never offered to supplement the pretrial records with an offer of proof in the form of a concise statement. See Allridge v. State, No. 69,838, slip op. at 43-44 (Tex. Crim. App. Nov. 13, 1991) (motion for rehearing pending); Tex. R. App. P. 52(b). It would not appear that the trial court is required to permit a bill of exception if the matter, without dispute, has already been preserved for appeal. Cf. Tex. R. Crim. Evid. 103(a)(2). Appellant, however, has failed to bring the record of the pretrial hearing forward in this appellate record. The burden is on the appellant to see that a sufficient record is presented to show error requiring reversal. See Tex. R. App. P. 50(d). Appellant's second point of error is overruled. In her third point of error, appellant complains of the trial court's remarks to the panel of prospective jurors. During the course of the voir dire examination, and after the State had completed its examination of the venire panel, the trial court declared a five-minute recess. In the course of his remarks to the jury panel prior to the recess, the trial court stated: We're going to finish this case today whether or not we stay here until 7:00 o'clock or 9:00 o'clock or 10:00 o'clock or 1:00 o'clock, we are going to finish it today. Okay? I want you to know that up front because this . . . there's a reason -- for some reason or not that you cannot be here this evening they need to know that and they need to take that into account. Okay? All right. Let's break for five minutes. In her point of error, appellant excerpts the portion italicized above and claims such remarks were improper. Appellant did not object to the remarks and did not preserve any complaint for review. Tex. R. App. P. 52(a). Any error was waived. Sharpe v. State, 648 S.W.2d 705, 706 (Tex. Crim. App. 1983). On appeal, appellant attempts to rely upon Tex. Code Crim. Proc. Ann. art. 38.05 (West 1979). Even if the appellant had preserved error by timely objecting on the basis of art. 38.05, no error would have been presented. To constitute reversible error, the judge's comment must have been reasonably calculated to benefit the State or prejudice the defendant. McClory v. State, 510 S.W.2d 932, 934 (Tex. Crim. App. 1974). This did not occur here. The third point of error is overruled. In her fourth point of error, appellant complains of the trial court's remarks to the jury after it was empaneled. After the jury was given several pages of instructions, the trial court at 12:20 p.m. declared a lunch recess. The trial court then told the jury: We're going to reconvene at 2:00 o'clock. That will give you plenty of time to eat. One reason why I'm giving you an hour and 40 minutes, more or less, is because I want you to make whatever arrangement you need to make for this evening in case we do have to stay late. As I said "We're going to finish this case today." I have another trial that's starting tomorrow and I must finish today. I don't expect us, in truth, to be here until 1:00 o'clock this morning. But that's the most I can say. Okay? Appellant complains of the italicized portion of the remarks above. Here again, there was no objection to the remarks which would preserve any complaint for review. See Tex. R. App. P. 52(a). Appellant's fourth point of error is overruled. In her fifth and last point of error, appellant contends that the trial court erred in refusing to instruct the jury on the justification defense of necessity. Appellant does not challenge the sufficiency of the evidence to sustain her conviction, but urges that the trial court erred in denying her requested charge on the defense of necessity. The defense of necessity requires a showing that: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by law prescribing [sic] the conduct; and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear. (1) Tex. Penal Code Ann. § 9.22 (West 1974); Moses v. State, 814 S.W.2d 437, 440 (Tex. App.--Austin 1991, pet. ref'd). A defendant is entitled to a jury instruction on every defensive issue raised by the evidence, Thomas v. State, 678 S.W.2d 82, 84-85 (Tex. Crim. App. 1984), but is not entitled to an instruction on an issue that was not raised by the evidence. Neaves v. State, 725 S.W.2d 785, 789-90 (Tex. App.--San Antonio 1987), aff'd, 767 S.W.2d 784 (Tex. Crim. App. 1989). To establish that she was entitled to the defense of necessity, appellant would have to demonstrate that she met all elements of the defense. Roy v. State, 552 S.W.2d 827, 830-31 (Tex. Crim. App. 1977), overruled on other grounds, Johnson v. State, 650 S.W.2d 414, 416 (Tex. Crim. App. 1983); Erlandson v. State, 763 S.W.2d 845, 851-52 (Tex. App.--Houston [14th Dist.] 1988, pet. ref'd). The Practice Commentary to section 9.22 recognizes that the statute contemplates a case-by-case balancing in assessing competing harms: the harm the defendant perceives and seeks to prevent must "clearly outweigh" the harm which will result from her acting in violation of another law, in this case, the criminal trespass statute (Tex. Penal Code Ann. § 30.05). See Seth Searcy & James Patterson, Practice Commentary, Tex. Penal Code Ann. § 9.22 (Vernon 1974). Moreover, the predicate requirement for invoking this justification is that the harm the actor assertedly seeks to prevent must first be a legal harm. Reed v. State, 794 S.W.2d 806, 810 (Tex. App.--Houston [14th Dist.] 1990, pet. ref'd); see also Moses, 814 S.W.2d at 441; Brumley v. State, 804 S.W.2d 659, 661 (Tex. App.--Amarillo 1991, no pet.). Nothing in the record shows that the Ladies Center or its staff were acting except within the bounds of the law, or that its patients were not exercising rights accorded them constitutionally or by law. See Bobo v. State, 757 S.W.2d 58, 63 (Tex. App.--Houston [14th Dist.] 1988, pet. ref'd), cert. denied, 490 U.S. 1066 (1989); Brady v. Doe, 598 S.W.2d 338, 339 (Tex. Civ. App.--Houston [14th Dist.] 1980, writ ref'd n.r.e.), cert. denied, 449 U.S. 1081 (1981); see also Moses, 814 S.W.2d at 441. Appellant's personal beliefs or a suggestion of the possibility of harm will not suffice to outweigh the status of the law at the time in question. See Schermbeck v. State, 690 S.W.2d 315, 317-18 (Tex. App.--Dallas 1985, no pet.); Erlandson, 763 S.W.2d at 852; Bobo, 757 S.W.2d at 63. Accordingly, the evidence does not demonstrate that the harm to the clinic's patients or the unborn clearly outweighed the harm caused by appellant's acknowledged trespass at the clinic. The trial court did not err in refusing to charge on the defense of necessity. Appellant's fifth point of error is overruled. The judgment of conviction is affirmed. John F. Onion, Jr., Justice [Before Justices Powers, Kidd and Onion;* Justice Powers not participating] Affirmed Filed: November 18, 1992 [Publish] * Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988). 1. The issue of plain legislative purpose to exclude justification for complained of conduct is one of law, and the jury may not consider it. Williams v. State, 630 S.W.2d 640, 643 (Tex. Crim. App. 1982).	01-03-2023	09-05-2015
https://www.courtlistener.com/api/rest/v3/opinions/1519183/	806 S.W.2d 373 (1991) 305 Ark. 173 WAL-MART STORES, INC., Appellant, v. Edith Ann KELTON and Dale T. Kelton, Appellees. No. 90-343. Supreme Court of Arkansas. April 1, 1991. 374 Ben Core, Fort Smith, for appellant. Stephen M. Sharum, Fort Smith, for appellees. BROWN, Justice. This is an appeal of a slip and fall case. Appellant Wal-Mart Stores, Inc. asserts that there was insufficient evidence for the trial court to award appellee Edith Ann Kelton judgment for $20,973 for medical expenses following a jury trial. We affirm the trial court's judgment. On September 3, 1988, at 10:10 a.m. appellees Edith Ann Kelton and Dale T. Kelton, who are married, purchased a few items at a Fort Smith Wal-Mart store. The Keltons were accompanied by Edith Ann Kelton's sister, Martha Sue Nichols. It was raining and, according to the Keltons and Nichols, a puddle of water had collected inside the store between the checkout counter and the exit door. Edith Ann Kelton slipped on the water when leaving (her sister said she fell) and injured her shoulder and lumbar back. The Keltons and Nichols left the store after the incident, went to their car in the parking lot, but then returned minutes later and told the assistant manager on duty what had happened. The water was still there, according to Mrs. Kelton. The Keltons gave their address and telephone number to the assistant manager. No customer incident report was completed by any Wal-Mart personnel. After the Keltons filed a complaint in court some five months later, Wal-Mart conducted its first investigation into the incident. A jury trial was held on July 31, 1990. Edith Ann Kelton described the collected water on the floor: "It was all spread out. It looked like tracks had been run through it." Later she said the water was "spread out around me ... like it had been trampled in or something, it was all around there." She also testified that Wal-Mart employees knew the water was there. Her sister testified that she felt a drop of water hit her face inside the store at the time of the incident. Dale Kelton said at trial that he saw that people had walked through the water "and splashed it around." He added: "I seen tracks leading to the door." A Wal-Mart witness did verify that Wal-Mart employees came into work through the exit door of the store. A tile was missing in the store's ceiling, according to Mr. Kelton. Wal-Mart employees contradicted this testimony. At the trial's conclusion, one verdict form completed and signed by the jurors found for the defendant Wal-Mart and against the Keltons. A second verdict form awarded Edith Ann Kelton $20,973 for medical expenses. The trial court polled the jury on the two verdicts and the seeming inconsistency. The jury returned to the jury room and later submitted the first verdict with the names of all three parties crossed out. The verdict awarding Mrs. Kelton damages was resubmitted unchanged. No further objection was made by Wal-Mart's counsel to the two verdict forms. Sufficiency of the Evidence Wal-Mart moved for a directed verdict at the close of the appellees' case and then again at the close of all the evidence. Both motions were denied. Wal-Mart then moved for a new trial after the jury verdict and alternatively requested other postjudgment relief as well. That motion was 375 never decided. In the directed verdict motions and motion for a new trial and other post-judgment relief, questions about the sufficiency of the evidence were raised. In addressing the sufficiency issue we must first view the evidence in the light most favorable to the party against whom the verdict is sought and give that evidence the highest probative value, taking into account all reasonable inferences that can be derived from it. Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987). A motion for a directed verdict should be granted only when the evidence viewed is so insubstantial as to require the jury's verdict for the party to be set aside. Id.; see also Green v. Gowen, 279 Ark. 382, 652 S.W.2d 624 (1983). A motion for a directed verdict should be denied only when there is a conflict in the evidence, or when the evidence is such that fair minded people might reach different conclusions. Stalter v. Coca-Cola Bottling Co., 282 Ark. 443, 669 S.W.2d 460 (1984). Under those circumstances a jury question is presented and a directed verdict is inappropriate. Id. It is not this court's province to try (or retry) issues of fact. Instead, this court examines the record to determine if there is substantial evidence to support the jury verdict. B-W Acceptance Corp. v. Norman Polk, 242 Ark. 422, 414 S.W.2d 849 (1967). Substantial evidence is defined as "that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond a suspicion or conjecture." Kinco, Inc. v. Schueck Steel, Inc., 283 Ark. 72, 76, 671 S.W.2d 178, 181 (1984). We have previously described the proof necessary for a plaintiff to prevail in a slip and fall case. The plaintiff must prove: ... either (1) that the presence of a substance upon the floor was the result of the negligence on the part of the appellee or (2) that the substance has been on the floor for such a length of time that the appellee's employees knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Dye v. Wal-Mart Stores, Inc., 300 Ark. 197, 198, 777 S.W.2d 861, 862 (1989). Wal-Mart vehemently argues that there was no proof of a foreign substance on the floor due to its negligence and further no proof that a substance, if any, remained on the floor for a length of time to evidence its failure to use ordinary care. Wal-Mart cites two other cases in support of its argument/.M Mulligan's Grille, Inc. v. Aultman, 300 Ark. 544, 780 S.W.2d 554 (1989); and Skaggs Companies, Inc. v. White, 289 Ark. 434, 711 S.W.2d 819 (1986). Both cases are distinguishable. In Aultman there was no proof of any foreign substance presented to the jury. In White the plaintiff did testify about a mystery substance on the floor, but there was no testimony of what the substance was or how it got there. Moreover, in Dye v. Wal-Mart Stores, Inc., supra, there was no testimony by the plaintiff that there was any substance on the floor at the time and place she fell. Testimony was presented at trial to support the Keltons' claim. It was raining on the day in question. Water was on the Wal-Mart floor between the counter and the exit door. Wal-Mart employees entered the store through this door. There were foot tracks through the water on the floor. One witness felt a water drop hit her face. Another saw that a tile was missing in the ceiling. The water was still there when the Keltons returned. No incident report was completed by Wal-Mart personnel. No investigation was done by Wal-Mart until five months later. Though some of this testimony was contradicted by Wal-Mart witnesses, it collectively constitutes substantial evidence. The jury could readily infer that water had collected inside the building on the floor for an undue period of time and failure to wipe the floor clean or warn of its presence was a breach of ordinary care and, therefore, negligence. We have examined the record to determine if there is substantial evidence to support the jury verdict, as we are required to do. See B-W Acceptance Corp. v. Polk, 376 242 Ark. 422, 414 S.W.2d 849 (1967). Based on the evidence presented to the jury, we cannot say as a matter of law that the jury erred. Instructions Wal-Mart advances additional error based on the refusal of the trial court to give two of its proffered instructions: Proffered No. IS No presumption of negligence arises from the mere fact that a person sustains a fall while in a business establishment. Proffered No. 14 A business establishment is not an insurer of its patrons or business invitees against any and all hazards which might be encountered on its premises. The trial court did give AMI 603 at Wal-Mart's request: AMI 603 The fact that an injury occurred is not, of itself, evidence of negligence on the part of anyone. Though Wal-Mart is correct that its proffered instructions accurately reflect two of our case decisions, failure to give those instructions is not error when an AMI instruction covering the same subject matter is on point. See Wharton v. Bray, 250 Ark. 127, 464 S.W.2d 554 (1971). There is, too, our longstanding preference in favor of AMI instructions over non-AMI instructions. Per Curiam Order (April 19, 1965). AMI 603 clearly preempts Wal-Mart's proffered No. 13 and is arguably broad enough to cover proffered No. 14 as well. Reference, furthermore, to an insurer's status in No. 14 could have been confusing to the jury. The trial court did not abuse its discretion in refusing to give either instruction. The trial court did give two AMI instructions that, in part, are duplicative: AMI 1104 In this case Edith Ann Kelton was a business invitee upon the premises of Wal-Mart Stores, Inc. Wal-Mart Stores, Inc., owed Edith Ann Kelton a duty to use ordinary care to maintain the premises in a reasonably safe condition. AMI 1105 Edith Ann Kelton contends that she slipped on a watery substance which was present on Wal-Mart Store, Inc.'s premises. Wal-Mart Stores, Inc., owed Edith Ann Kelton a duty to use ordinary care to maintain the premises in a reasonably safe condition. To establish a violation of this duty, Edith Ann Kelton must prove either that the presence of the substance upon the floor was the result of negligence on the part of Wal-Mart Stores, Inc., or that the substance had been on the floor for such a length of time that Wal-Mart Stores, Inc. knew or reasonably should have known of its presence and failed to use ordinary care to move it. Wal-Mart contends the double reference to the duty of ordinary care was prejudicial. We do not agree. At worst any prejudice to Wal-Mart was minimal and the error harmless. It certainly does not warrant reversal of the jury's verdict. Inconsistent Verdicts There is, finally, the issue of dual verdicts which are alleged to be facially inconsistent: one verdict form appears to be a defendant's verdict; the second awards Edith Ann Kelton $20,973 for medical expenses. When told by the trial judge to resolve this inconsistency, the jury returned to the jury room and struck the parties' names in what had appeared to be a verdict in favor of Wal-Mart. The verdict awarding damages for medical expenses to Edith Ann Kelton was returned unchanged. It appears to us that the jury attempted to void the verdict form for Wal-Mart and uphold its damage award to Edith Ann Kelton. In any case, counsel for Wal-Mart 377 did not object after the jury returned a second time, and the time to correct or clarify an irregularity in the verdict is before the time that the jury is discharged. See Center v. Johnson, 295 Ark. 522, 750 S.W.2d 396 (1988). This issue is not appropriately before us on appeal. The judgment of the trial court is, therefore, affirmed. Affirmed. DUDLEY and CORBIN, JJ., not participating.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519212/	806 S.W.2d 702 (1991) STATE of Missouri, Plaintiff-Respondent, v. Sterling JONES, Defendant-Appellant. No. 57778. Missouri Court of Appeals, Eastern District, Division One. February 19, 1991. Motion for Rehearing and/or Transfer Denied March 26, 1991. Application to Transfer Denied May 3, 1991. 703 Scott E. Walter, Clayton, for defendant-appellant. William L. Webster, Atty. Gen., Andrea K. Spillars, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent. Motion for Rehearing and/or Transfer to Supreme Court Denied March 26, 1991. PUDLOWSKI, Presiding Judge. Defendant Sterling Jones [hereinafter defendant] was charged with possession of a Schedule II controlled substancecocaine in violation of § 195.020 RSMo (repealed 1989) and jury-tried. The jury found defendant guilty. He was sentenced to one year in the Missouri Department of Corrections according to § 195.200.1(1) RSMo (repealed 1989). The trial court denied defendant's motion for a new trial and this appeal follows. On appeal from a criminal conviction, we review the evidence in the light most favorable to the statemeaning that we must accept as true all evidence whether direct or circumstantial, which tends to prove defendant guilty, together with all reasonable inferences supportive of the verdict. State v. Dulany, 781 S.W.2d 52 (Mo. banc 1989). We find the evidence sufficient to sustain the verdict. The defendant does not dispute on appeal the facts pertaining to the arrest but claims error in allowing rebuttal evidence. Defendant's first point on appeal is that the trial court erred in allowing Officer Eddie Givens [hereinafter Givens] to testify during rebuttal that he knew the defendant's witness, Tony Jones [hereinafter Jones], from an investigation of drug activity. He also claims the court erred in allowing Givens to further testify as to the circumstances of a custodial interrogation since that testimony pertained to impermissible "collateral" matters and such testimony was highly prejudicial. Jones testified he was present at the time when defendant was arrested. When asked on direct examination if he had seen Officer Givens, one of the arresting officers, before this incident, Jones replied that he had. Defense counsel then asked Jones where he had previously seen Givens, to which he responded: "he [Givens] used to go up at National's [a supermarket] on Jefferson and me and a friend of mine's [sic] used to go up there a lot, talk to him, you know, because my friend knew him from somewhere." Later on direct examination, Jones, who was present at the time of the arrest of the defendant, testified that Givens asked Jones: "Don't I know you," to which Jones responded, "yeah, you know me from, you know, National." On cross-examination of Jones, the prosecution asked Jones if he had seen Givens anywhere else other than at the National, to which Jones answered: "Yes." No further questions were asked by the prosecutor to explain this relationship. In rebuttal, the prosecutor recalled Givens and at that time defendant did not object. An appellate court "will not entertain a claim of error in improperly admitting evidence unless the question was properly raised in the trial court." State v. Bibee, 496 S.W.2d 305, 317 (Mo.App.1973). Defendant did not object at trial or in his motion for new trial that Givens was an improper rebuttal witness. The following is the rebuttal testimony of Detective Givens: Q [By Mr. Leritz, Prosecutor] Now, do you know a man named Tony Jones? A [By Eddie Givens] Yes, I do. . . . . . Q [by Mr. Leritz] Okay. Now, how was it you came to know Tony Jones? A [by Eddie Givens] Tony Jones was brought to the District Station by Officer Mancell who is now a Detective in the Third Bureau and his partner at the timeI don't remember his partner's namefor suspected drug activity in the projects. Q Okay, and did you and Finney talk to Tony Jones? A Yes, I did. Q Why was that? What was he arresting Tony Jones for? MR. WALTER: [Defense Counsel] Your Honor, at this time can I object? I think the purpose of Detective Givens here is to say that Mr. Jones has known Detective Givens before. 704 THE COURT: I am going to overrule the objection. Proceed. Q (By Mr. Leritz) What was it about Tony Jones that led Mancell to bring him to you and Finney? A During that time and since even before that time myself and Officer Finney was conducting an investigation in that area for suspected drug activity due to the numerous complaints that was received by the residents in that area due to the numerous shootingswell, the numerous drug-related shootings. Q Okay, and that's what led to the arrest of Sterling Jones, also. Q What sort of property did Tony Jones have on him? MR. WALTER: Object, your Honor. What does Tony Jones' property have to do [Counsel approached the bench and the following proceedings were had outside the hearing of the jury.] THE COURT: Give me an offer of proof. MR. LERITZ: Judge, the officer will testify that he had a beeper and a large amount of cash on him when the traffic stop was made on him in the projects, and he got a ticket for unlawful backing, and then he was brought down to talk to these two officers because of those items that he had on him. I don't want the jury to think that, you know, he was just arrested for no reason at all. MR. WALTER: But, your Honor, see, the whole issue here is I think he is offering Givens to rebut that he has seen Tony Jones before, and that is the issue, and I think Detective Givens has done that. We're not here to try Tony Jones. I didn't offer anything about Tony Jones' character or reputation or what it is. THE COURT: I'm sorry. Go ahead and finish. MR. WALTER: And I didn't think he had any reason to offer it. The question is knowledge, and he is trying to say the knowledge isn't good. It's bad knowledge, and he is going into more than just have you known him before and impeaching him, and I object as irrelevant. THE COURT: Didn't you limit your direct though that he only knew him from the National Food Store? I think he's got a right to go and give the whole story based on what Givens knows about Jones. MR. WALTER: Okay. I wasn't going to go into, "I got the cash on Tony Jones and I got a beeper." I don't see what relevance that has. THE COURT: I am going to let him get into it and keep it just at that, if you will. So you've made your record. MR. WALTER: I am going to ask for a curative instruction as far as the jury goes, to limit the knowledge of Tony Jones and not to are you going to say he is a bad character. He is a drug dealer. I am going to want a limiting instruction. THE COURT: You are just getting it in to fully explain his contact with Tony Jones? MR. WALTER: Why can't he just say, "I arrested him for suspicion of drugs"? MR. LERITZ: He wasn't. THE COURT: I am going to allow it, but do you have a curative instruction, the fact that this evidence comes in only to fully explain the contact of Detective Givens. MR. WALTER: I would like you to orally give that to the jury. MR. LERITZ: That's fine. [The proceedings returned to open court.] THE COURT: Before the Detective answers that question, ladies and gentlemen, this area that will be testified to, I am going to allow it only to explain Detective Givens, the contact Detective Givens has had with Tony Jones. Let's have the court reporter please read back the last question for the benefit of the jury. [The last question was read by the reporter as follows: "What sort of property did Tony Jones have on him?"] A Tony Jones had a large sum of money on him. It was a thousand plus dollars, and a beeper. Q All right, and you say this was before the incident involving Sterling Jones? A I believe so, yes. 705 Defense counsel's first "objection" occurred in response to the State's question of Givens, "What was he arresting Tony Jones for?" Defense counsel said: "Your Honor, at this time can I object? I think the purpose of Detective Givens here is to say that Mr. Jones has known Detective Givens before." "It is universally held in Missouri that specific objections are required to evidence, arguments, or statements of counsel, and the objection must call the attention of the Court to the ground or reason for the objection." State v. Lang, 515 S.W.2d 507, 511 (Mo.1974). An objection such as "I object" does not preserve any question for review. "The trial court must be given an opportunity to rule upon an objection giving stated reasons for exclusion." Id. See also State v. Hastings, 477 S.W.2d 108, 111 (Mo.1972) (Statement "To which I'm going to object at the present time" insufficient.). The trial court did not err in overruling this general objection. Defense counsel's second "objection" occurred in response to the question: "What sort of property did Tony Jones have on him?" Counsel said: "Object, your Honor. What does Tony Jones' property have to do." A bench conference was then held. During the bench conference, defense counsel said "I object as irrelevant." The following exchange then occurred: THE COURT: Didn't you [defense counsel] limit your direct though that he only knew him from the National Food Store? I think he's got a right to go and give the whole story based on what Givens knows about Jones. DEFENSE COUNSEL: Okay. I wasn't going to go into, "I've got the cash on Tony Jones and I got a beeper." I don't see what relevance that has. THE COURT: I'm going to let him get into it and keep it just at that, if you will. So you've made your record. Defense counsel then asked for an oral limiting instruction. The requested instruction was given before Givens resumed his testimony. Givens was asked: "What sort of property did Tony Jones have on him?" Givens replied: "Tony Jones had a large sum of money on him. It was a thousand plus dollars, and a beeper." On direct examination of defendant, his counsel asked about previous contacts with Givens. Those questions, and defendant's answers, concerned a collateral matter. Ordinarily, rebuttal testimony on a collateral matter is inadmissible. Frye v. Meramec Marina, Inc., 673 S.W.2d 451, 454 (Mo.App.1984). However, once defendant presents evidence on a collateral matter, whether a trial court permits rebuttal evidence on the collateral issue rests in the sound discretion of that court. Allowing the answer that the witness had money and a beeper on him when Givens saw Jones previously is not an abuse of discretion. At trial, defendant objected solely to that statement on the basis of relevance. In his motion for new trial and in his brief, defendant has expanded his objection. He now says the "evidence was collateral, highly prejudicial and not probative of the issue." Defendant claims it was prejudicial because at the time of his arrest the officers found $1,200 cash and a beeper on him. We disagree. Defendant has run "afoul of both the proscription against interposing one objection at trial and another on appeal, ... and the rule that `an objection to the admissibility of evidence must be specific and contain the proper ground of its exclusion, else on appeal the trial court will not be convicted of error for overruling it.'" Parry v. Staddon, 769 S.W.2d 811, 814 (Mo.App. 1989) (quoting McNabb v. Winkelmann, 661 S.W.2d 825, 826 (Mo.App.1983)) (quoting Negley B. Calvin, Inc. v. Cornet, 427 S.W.2d 741, 746 (Mo.App.1968)). The defendant also claims on appeal that the trial court abused its discretion when it allowed Officer Givens to testify that "Jones was brought in for suspected drug activity in the projects." The defendant did not object to or ask that the statement be stricken. Since the defendant sought no relief, we cannot find the trial court to have committed error. Defendant's point is denied. Defendant's second point on appeal is that the trial court erred in sentencing defendant to one year in the Missouri Department 706 of Corrections because the sentence was an enhancement of his punishment and acted as a penalty for his refusal to plead guilty. Defendant cites Thurston v. State, 791 S.W.2d 893 (Mo.App.1990) for the proposition that: "A practice which discourages the Fifth Amendment right not to plead guilty, which deters the Sixth Amendment right to demand a jury trial and which chills the assertion of these constitutional rights by paralyzing those who choose to exercise them is patently unconstitutional. United States v. Jackson, 390 U.S. 570, 581, 88 S. Ct. 1209, 1216, 20 L. Ed. 2d 138, 147 (1968)." Thurston, at 896. In Thurston, this court found that a trial judge's practice of consistently imposing maximum sentences on defendants who exercise their rights to trial by jury violate the above mentioned constitutional guarantees. Id at 897. Here, defendant has shown no such consistent practice on the part of the judge. Important to the Thurston court was the fact that the trial judge showed no consideration for such factors as: the nature of the crime(s) and the background of the defendant. Thurston found the omission of these extremely relevant factors in the trial judge's determination of a proper sentence to "demonstrate an unvarying pre-determination of issues which require the exercise of judicial discretion on a case-by-case basis." Thurston at 897. Here, a review of the record reveals that the judge properly weighed the relevant factors of the nature of the crime committed and the background of the defendant and imposed a punishment which fit the crime as well as the criminal.[1]See State v. Brown, 668 S.W.2d 635 (Mo.App.1984); State v. Davis, 582 S.W.2d 342 (Mo.App. 1979). The judgment is affirmed. KAROHL and GRIMM, JJ., concur. NOTES [1] The judge while in chambers, on the record, stated to the defendant that he generally followed a jury's verdict but that he treated every case differently and he would certainly look at the defendant's record in determining a proper sentence.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519222/	806 S.W.2d 553 (1991) SABINE CONSOLIDATED, INC., & Joseph Tantillo, Appellants, v. The STATE of Texas, Appellee. Nos. 1069-88, 1070-88. Court of Criminal Appeals of Texas, En Banc. February 13, 1991. Rehearing Overruled April 3, 1991. 554 Frank Maloney, S. Belinda Davis Wright, S. Ronald Keister, Austin, for appellants. Ken Oden, County Atty., Alia Moses and Giselle Horton, Asst. County Attys., Robert Huttash, State's Atty. and Matthew W. Paul, Asst. State's Atty., Austin, for State. Before the court en banc. OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW BAIRD, Judge. The issue we consider in this case is whether the Occupational Safety and Health Act of 1970 (OSHA or the Act) (29 U.S.C. § 651 et seq. 1982), preempts Texas from prosecuting appellants for criminally negligent homicide under Tex.Penal Code Ann. § 19.07. Appellant Tantillo was the president of appellant Sabine Consolidated, Inc. (Sabine). Both appellants pled nolo contendere to the offense of criminally negligent homicide. Sabine was fined $10,000.00, and Tantillo was sentenced to confinement for 180 days, probated for one year, and fined $2,000.00. The charges arose from an excavation trench cave-in on September 10, 555 1985, in which two employees of Sabine were killed when the walls of the trench collapsed, burying them. The Court of Appeals reversed the convictions and ordered acquittals. Sabine Consolidated, Inc. v. State, 756 S.W.2d 865 (Tex.App.-Austin, 1988). The Court of Appeals held that the OSHA provisions reflect implied intent by Congress to usurp the entire field of occupational safety such that criminal prosecution, based upon the violation of state or local standards for working conditions, invades that area of occupational safety preempted by OSHA. We granted the State's petition for discretionary review to address the preemption issue. Tex.Penal Code Ann. § 19.07 provides that a person commits an offense if he causes the death of an individual by criminal negligence. The State charged appellants with criminally negligent homicide by alleging a failure to act; to so charge there must be a statutory duty to act. See Billingslea v. State, 780 S.W.2d 271 (Tex.Cr.App.1989). To establish a duty to act, the State relied upon the Texas Occupational Safety Act, (TOSA), V.A.C.S., Article 5182a, § 3, which provides: Every employer shall furnish and maintain employment and a place of employment which shall be reasonably safe and healthful for employees. Every employer shall install, maintain, and use such methods, processes, devices, and safeguards, including methods of sanitation and hygiene, as are reasonably necessary to protect the life, health, and safety of such employees, and shall do every other thing reasonably necessary to render safe such employment and place of employment. The informations alleged, in pertinent part, that appellants were criminally negligent by: fail[ing] to furnish and maintain a place of employment which was reasonably safe and healthful for the said [deceased], an employee of the said [appellant], and the said [appellant] did then and there fail to install and maintain and use such methods and processes and devices and safeguards as were reasonably necessary to protect the life and health and safety of the said [deceased], by then and there failing to provide an adequate shoring system for the wall of an excavation and by then and there failing to properly slope the wall of an excavation, thereby causing the wall of the said excavation to collapse, which caused the death of the said [deceased], when the said [appellant] had a duty to furnish and maintain a place of employment which was reasonably safe and healthful for the said [deceased] and the said [appellant] had a duty to install and maintain and use such methods and processes and devices and safeguards as were reasonably necessary to protect the life and health and safety of the said [deceased]. OSHA The purpose and policy of OSHA is "to assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources" 29 U.S.C. § 651(b). To further that purpose Congress authorized the creation of occupational safety and health standards and regulations for "businesses affecting interstate commerce," 29 U.S.C. § 651(b)(3), and enacted a general duty provision for such employers. 29 U.S.C. § 654.[1] The Act also provides for civil and criminal penalties for violations of the general duty provision or any standard, rule, order, or regulation promulgated pursuant to the Act. 29 U.S.C. § 666. Under this section the following penalties may be assessed: 556 for a "willful or repeated violation" of specific OSHA standards or the general duty provision, a civil penalty of not more than $10,000.00 may be assessed for each violation; for a "serious violation", meaning there is a substantial probability that death or serious physical harm could result from a condition that exists or from practices or methods in place, a civil penalty of not more than $1,000.00 shall be assessed; for a violation determined not to be serious, a civil penalty of up to $1,000.00 may be assessed; for failure to correct a cited violation, a civil penalty of up to $1,000.00 a day until corrected; for a "willful violation" of OSHA standards which cause death, a criminal penalty of imprisonment for not more than 6 months and/or a fine of not more than $10,000.00 may be assessed; slightly stiffer penalties for one previously convicted of such violation(s); and finally, criminal penalties ranging from imprisonment for 6 months and a fine of between $1,000.00 and $10,000.00 may be assessed for giving advance notice of inspection or making false statements for information required under the Act. Despite the availability of these penalties OSHA is primarily prophylactic in nature. Whirlpool Corp. v. Marshall, 445 U.S. 1, 12, 100 S. Ct. 883, 890, 63 L. Ed. 2d 154, 164 (1980). The Act seeks to establish standards and regulations to prevent death or injury from occurring in the workplace. PREEMPTION The doctrine of preemption is based upon the supremacy clause of the United States Constitution, Article VI, cl. 2, which invalidates state laws that "interfere with, or are contrary to," federal law. Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L. Ed. 23, 73 (1824). Federal law may supersede state law in three ways. First, Congress can expressly state that the particular federal law preempts state law. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S. Ct. 1305, 1309, 51 L. Ed. 2d 604, 614 (1977). Second, Congressional intent to preempt can be implied from the scheme of federal regulation which is sufficiently comprehensive to make a reasonable inference that Congress left no room for the states to supplement it. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 1152, 91 L. Ed. 1447, 1459 (1947). Implied intent can also be found where the federal interest in the field is so strong that it precludes state laws on the same subject. Third, federal law preempts state law when the state law conflicts with the federal law. This conflict occurs when compliance with federal and state laws is, in effect, a physical impossibility, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S. Ct. 1210, 1217-1218, 10 L. Ed. 2d 248, 256-257 (1963), or when the state law is "an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 404, 85 L. Ed. 581, 587 (1941). See also Hillsborough County, Fla. v. Auto. Med. Labs., 471 U.S. 707, 713, 105 S. Ct. 2371, 2375, 85 L. Ed. 2d 714, 721 (1985). OSHA permits states to preempt federal standards of occupational safety and health by adopting their own such standards and plan for enforcement, which must be approved by the Secretary of Labor. 29 U.S.C. § 667. The Act also specifies that states may assert "jurisdiction under State law over any occupational safety or health issue with respect to which no standard is in effect under section 6 [29 USC § 655]." 29 U.S.C. § 667(a). Finally, § 653(b)(4) states: Nothing in this Act shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment. EXPRESS PREEMPTION We will first address the express preemption issue. Section 667 states, in part: Nothing in this Act shall prevent any State agency or court from asserting jurisdiction 557 under State law over any occupational safety or health issue with respect to which no standard is in effect under section 6 [29 USC § 655]. Any State which, at any time, desires to assume responsibility for development and enforcement therein of occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated under section 6 [29 USC § 655] shall submit a State plan for the development of such standards and their enforcement. Under this section Congress clearly preempted state occupational safety and health laws and standards for "businesses affecting interstate commerce" unless the State takes steps to establish its own program in accord with OSHA requirements for substituting state standards. However, we do not believe that Congress intended that state criminal laws which affect or involve occupational safety and health be preempted. See and cf. New York Dep't. of Social Services v. Dublino, 413 U.S. 405, 415, 93 S. Ct. 2507, 2514, 37 L. Ed. 2d 688, 696 (1973). There is no express language to that effect and other provisions indicate no such intent. The term "occupational safety and health standard" is defined in the Act as "a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." 29 U.S.C. § 652(8). The criminally negligent homicide statute is not a standard as defined by OSHA, even though, as in this case, it involves a duty. Tex.Penal Code Ann. § 19.07 does not set conditions or establish practices or processes to ensure a safe workplace. Surely, it may foster the development of standards to do just that. Unlike OSHA, which is designed to establish standards to prevent death or injury from occurring, criminal laws are reactive, punishing for acts committed. While OSHA has penalty provisions for violations of standards and duties, the provisions are not designed to cover a broad range of criminal conduct. Id. § 666. They are limited to "willful" conduct when a death results, rather than negligent conduct. Also, the penalty range is primarily civil in nature and fairly minor as compared to criminal penalties which include a broad range from misdemeanor punishment for negligent homicide to felony punishment for "intentional" murder. In People v. Chicago Magnet Wire Corp., 126 Ill. 2d 356, 128 Ill. Dec. 517, 534 N.E.2d 962, cert, denied sub nom. Asta v. Illinois, U.S. ___, 110 S. Ct. 52, 107 L. Ed. 2d 21 (1989), the Illinois Supreme Court reversed an appellate court decision which had found state criminal law preempted by OSHA.[2] In disposing of a claim of express preemption on the grounds that state criminal laws implicitly enforced occupational health and safety standards, the Court stated: Although the imposition of sanctions under State penal law may effect a regulation of behavior as OSHA safety standards do, regulation through deterrence, however, is not the sole purpose of criminal law. For example, it also serves to punish as a matter of retributive justice. Too, whereas OSHA standards apply only to specific hazards in the workplace, criminal law reaches to regulate conduct in society in general. In contrast, occupational health and safety standards are promulgated under OSHA primarily as a means of regulating conduct to prevent injuries in the workplace. Id. 128 Ill.Dec. at 521, 534 N.E.2d at 966. See also People v. Hegedus, 432 Mich. 598, 443 N.W.2d 127 (1989). Nowhere in the Act is there language stating that Congress preempted any other laws or all laws affecting workplace safety and health. Section 653(b)(4) indicates the opposite as it specifically and broadly allows and does not "in any manner affect 558 workmen's compensation law or ... the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment." (Emphasis added). The Court of Appeals and appellants argue that this language reserves only private rights, citing Frohlick Crane Service, Inc. v. OSCHR, 521 F.2d 628, 631 (10th Cir.1975); Jeter v. St. Regis Paper Co., 507 F.2d 973 (5th Cir.1975). While such interpretation is plausible, the language itself is subject to a broader interpretation that includes state criminal laws"under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment." Given the reservation of other private rights in the broad language of § 653(b)(4), and their incidental regulatory effect, it makes sense that criminal laws were likewise not meant to be preempted. In Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S. Ct. 615, 78 L. Ed. 2d 443 (1984), the Supreme Court upheld an award for punitive damages in a state tort law action based upon injuries caused by excessive radiation suffered by Karen Silkwood when she was an employee of Kerr-McGee. Kerr-McGee argued that punitive damages were unauthorized because it punished and deterred conduct related to radiation hazards, an area of nuclear safety preempted by the federal government. The Supreme Court held that Congress had indicated that state tort law remedies were not foreclosed. The Court stated: It may be that the award of damages based on the state law of negligence or strict liability is regulatory in the sense that a nuclear plant will be threatened with damages liability if it does not conform to state standards, but that regulatory consequence was something that Congress was quite willing to accept. Id. at 256, 104 S.Ct. at 625. In Silkwood, the Court upheld an action based upon state law that was not specifically provided for in the federal law and which affected an area preempted by federal law. The instant case is similar. Congress specifically permitted the "regulatory consequence" of state tort law upon OSHA. 29 U.S.C. § 653(b)(4). If, in enacting OSHA, Congress was explicitly willing to allow the incidental regulation caused by damage awards under state tort law through § 653(b)(4), "it cannot plausibly be argued that it also intended to preempt State criminal law because of its incidental regulatory effect on workplace safety." Chicago Magnet Wire Corp., supra 128 Ill.Dec. at 523, 534 N.E.2d at 968. We conclude that Congress did not expressly preempt enforcement of state criminal laws in an area regulated by OSHA. The purpose of state criminal laws and criminally negligent homicide in particular, is not to set standards for workplace safety. The purpose is to punish one for an illegal act as defined by the penal code, whether that act be done in the workplace or elsewhere. OSHA is not designed to deal with state criminal offenses. Simply because a state criminal law may incidentally concern an area controlled by federal law, this fact alone does not make the state law impermissible. Therefore, state criminal laws are not preempted by federal law aimed at safeguarding the workplace. IMPLIED PREEMPTION The second way in which state law may be preempted by federal law is where preemption can be implied from the federal regulation. The Court of Appeals held that OSHA, in particular § 667(a), reflects an implied intent by Congress to preempt the field of occupational safety and health such that even state criminal laws that affect that field are forbidden or precluded. Sabine Consolidated, Inc., 756 S.W.2d at 869. That Court further held that the State's criminal prosecution based upon a statute that prescribes safety standards, in effect, established local standards governing trenches when OSHA had already regulated that area. See 29 CFR §§ 1926.650-1926.652. The Court of Appeals reasoned that even if the State had not used the TOSA language, "criminal prosecution based on the violation of state 559 or local standards for working conditions would still amount to an impermissible at tempt to regulate, through the state criminal laws, conduct now regulated under OSHA." Id. In Auto. Med. Labs, 471 U.S. 707, 105 S. Ct. 2371, the Supreme Court stated two ways in which implied intent to preempt can be shown: (1) where the scheme of federal regulation is so comprehensive as to leave no room for the state to supplement it or (2) where the federal interest is so strong that it overrides any state action on the same subject. In the instant case the Court of Appeals found implied intent to preempt because the federal regulation is sufficiently comprehensive that Congress left no room for the States to supplement it. Section 667(a) provides that a state may develop its own standards where no federal standard exists and that a state may substitute its own program if approved by the Secretary of Labor. The Court of Appeals discounts the language of § 653(b)(4), as applicable only to private rights. Sabine Consolidated, Inc., 756 S.W.2d at 868. Much of our previous discussion of §§ 667 and 653(b)(4) also disposes of the implied intent theory. Given that workers' compensation, common law claims and state tort claims can exert a similar kind of regulatory effect as the enforcement of criminal laws for acts occurring in the workplace, we cannot reasonably conclude that Congress would preempt criminal laws while allowing other causes of action. Otherwise, an employer who causes the death of an employee by providing unsafe working conditions would be able to escape state criminal prosecution and suffer only the comparatively minor punishment provided by OSHA. In light of § 653(b)(4) and the several specified actions available, such a result does not seem implied or intended. Thus, we find the federal regulations do not bar the regulatory consequence of state criminal actions. The federal interest in workplace safety is not so great as to preempt all state interest in this area. First, under § 667, a state may establish its own standards to govern the workplace, subject to approval by the Secretary of Labor. Second, § 653(b)(4) leaves available state law claims in this field. Third, the State's own interest in regulating health and safety matters "is primarily, and historically, a matter of local concern." Auto. Med. Labs, 471 U.S. at 719, 105 S.Ct. at 2378, 85 L.Ed.2d at 725. This local interest, combined with the State's traditional interest in its own police power to enforce criminal laws, demonstrate that the federal interest does not prevent the state from asserting its traditional powers in enforcing criminal laws, despite the incidental impact of such laws on OSHA. CONFLICT PREEMPTION The last way in which state law may be preempted by federal law is when the state law conflicts with the federal law either where: 1) compliance with state and federal law is, in effect, a physical impossibility, see Florida Lime & Avocado Growers, Inc, supra; or 2) the state law conflicts with the purpose and objectives of Congress and the federal law. Auto. Med. Labs, 471 U.S. 707, 105 S. Ct. 2371. Neither the Court of Appeals nor appellants suggest that conflict preemption exists. Enforcement of the criminally negligent homicide statute in this case does not conflict with any regulations or provisions of OSHA so that compliance with state and federal law is an impossibility. The duty with which appellants were charged with violating is a general duty similar to the general duty provided for in § 654(a). This statute certainly does not hinder the purpose and objectives of OSHA. If anything, it supports the OSHA duty and standards. Thus, the doctrine of conflict preemption does not support the conclusion that OSHA preempts prosecution under state criminal laws. CONCLUSION Several other states have addressed this same issue, all of them concluding that state criminal laws were not preempted by OSHA. Chicago Magnet Wire Corp., supra; People v. Hegedus, supra; People v. Pymm, 76 N.Y.2d 511, 563 N.E.2d 1, 561 *560 N.Y.S.2d 687 (1990); State ex rel. Cornellier v. Black, 144 Wis. 2d 745, 425 N.W.2d 21 (1988); see also People v. Brom, 185 Ill. App. 3d 411, 133 Ill. Dec. 534, 541 N.E.2d 745 (1989) and Commonwealth v. Morris, 394 Pa.Super. 185, 575 A.2d 582 (1990).[3] The application of our criminal laws, in this instance § 19.07, supra, to conduct in the workplace does not present an obstacle to the accomplishment of OSHA's stated goal of assuring employees safe and of appellants for criminally negligent homicide was proper. We reverse the judgment of the Court of Appeals and remand the case to the Court of Appeals to consider appellant's remaining points of error. CLINTON, J., concurs in the result. TEAGUE, J., finding that the opinion by the Third (Austin) Court of Appeals, see Sabine Consolidated, Inc. v. State, 756 S.W.2d 865 (Tex.App.Austin 1988), has more than adequately disposed of the issue whether OSHA preempts Texas from prosecuting appellants for criminally negligent homicide under Tex.Penal Code Ann. § 19.07, and correctly decides that issue in favor of appellants, and against the State, respectfully dissents. MALONEY, J., not participating. NOTES [1] Section 654 states: (a) Each employer (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; (2) shall comply with occupational safety and health standards promulgated under this Act. (b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct. [2] At the time of its opinion, the Court of Appeals did not have the benefit of the decision of the Illinois Supreme Court in People v. Chicago Magnet Wire Corp., 126 Ill. 2d 356, 128 Ill. Dec. 517, 534 N.E.2d 962 (1989), which reversed the lower court opinion relied upon by the Court of Appeals in this cause. [3] We also note that a congressional committee on government operations approved and adopted a report recommending to Congress that "OSSHA should take the position that the States havee clear authority under the Federal OSH Act, as it is written, tio proseecute employers for acts against their employees whiuch constitute crrirmes under State law." Chicago Magnet Wire Corp. 128 Ill.Dec. at 525, 534 N.E.2d at 970, citing Report of House Comm. on Government Operations, Getting Away with Murder in thee Woorkplace: OHSA's Non-use of Criminal Penalties for Safety Violations, H.R.Rep. No. 1051, 100th Cong. 2d Sess. 9 (1988).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519276/	806 S.W.2d 48 (1991) STATE of Missouri, Respondent, v. Michael Wayne GILL, Appellant. No. WD 43257. Missouri Court of Appeals, Western District. February 5, 1991. Motion for Rehearing and/or Transfer Denied April 2, 1991. 49 Raymond L. Legg, Columbia, for appellant. William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty., Jefferson City, for respondent. Before GAITAN, P.J., and TURNAGE and KENNEDY, JJ. Motion for Rehearing and/or Transfer to Supreme Court Denied April 2, 1991. GAITAN, Presiding Judge. Appellant, Michael Wayne Gill, appeals his conviction for sexual abuse in the first degree, Mo.Rev.Stat. § 566.100 (1986), for which he received a four year sentence. He alleges the trial court erred by: (1) refusing to give an instruction on diminished mental capacity; (2) permitting evidence of a statement made by appellant in violation of his Miranda rights; and (3) admitting hearsay evidence. We affirm. Appellant's sister, Bobby Gill, babysat J.H., who was four years old on August 29, 1988. When J.H.'s mother, Robin, picked J.H. up on the night of August 30, she discovered a problem with J.H. and took her to the police station and then to the hospital. The police went to appellant's residence stating that they wanted to talk to him about J.H. at 9:00 a.m. on August 31. Appellant was taken to the conference room library at the police station and given his Miranda warning. Jefferson City Police Officer Kathy Carew, who had known appellant and his family, was aware of appellant's limited intellectual abilities and took extra precautions to make sure that he understood his Miranda rights. Appellant signed a waiver of rights form. At some point, Police Officer Terry Benson came into the room while Carew was interrogating appellant. When appellant stated that maybe he needed to talk to someone, Benson picked up the rights form, showed the form to appellant and told him that it was his right to talk to someone including an attorney. Benson then went over each right again using the form. Benson was also aware that appellant had limited intellectual abilities and Benson also took extra precautions in dealing with appellant to make sure that he understood all of his rights. Appellant initially admitted that he had seen J.H. while his sister was babysitting her, but denied touching her improperly. Upon re-examination by Officer Carew, appellant changed his story. Appellant stated that he had gone downstairs to where J.H. was sleeping in a lower bedroom of the residence. He stated that he removed her shirt and pants, and that he had inserted his middle finger into her front and back private areas. When asked if he was sexually aroused when playing with J.H., appellant stated that he had had a partial erection. However, appellant stated that he did not take his penis out of his pants. According to appellant, his sister and mother were upstairs while he engaged in this conduct with the victim. Carew spoke to J.H. out of her mother's presence at approximately 1:15 p.m. on August 31. J.H. told Officer Carew that appellant removed her shirt and pants. J.H. then said that appellant touched her in her private parts. Specifically, J.H. said that 50 appellant had touched her where she went "poop" and that it had hurt. When asked what appellant had said to her, J.H. responded that Mike told her not to tell anyone and to quit crying. Appellant did not testify but offered the testimony of William Robert Holcomb, the superintendent at Fulton State Hospital, as well as a Ph.D. in clinical psychology, and psychiatrist Charlotte Balcer, who had examined appellant to determine whether or not he had a mental disease or defect. Holcomb testified that while appellant did not suffer from a mental disease or defect, appellant's intellectual functioning was below average. While Holcomb testified that appellant had "diminished capacity", Holcomb testified that "this diminished capacity" which he diagnosed was not a mental disease or defect as defined by law. Balcer also testified that appellant did not suffer from a mental disease or defect but testified that appellant had "diminished capacity" because he had a difficult time controlling his impulses since he had been abused as a child and had improper role models. I. The term "mental disease or defect" is defined in Mo.Rev.Stat. § 552.010 (1986). Under the doctrine of diminished mental capacity, the defendant remains fully responsible for his conduct but can be found guilty of only those offenses, if any, of which he is mentally capable. State v. Shaw, 636 S.W.2d 667, 673 (Mo. banc), cert. denied, 459 U.S. 928, 103 S. Ct. 239, 74 L. Ed. 2d 188 (1982) (citing State v. Anderson, 515 S.W.2d 534 (Mo. banc 1974)); State v. Foerstel, 674 S.W.2d 583, 592 (Mo.App.1984). Diminished mental capacity is a special negative defense. Shaw, 636 S.W.2d at 673. Missouri cases make it clear that a claim of diminished capacity must rest upon substantial evidence of a mental disease or defect as defined in Mo.Rev.Stat. § 552.010 (1986). See State v. Fisher, 773 S.W.2d 178, 181 (Mo.App.1989); State v. Weatherspoon, 716 S.W.2d 379, 384 (Mo. App.1986), cert. denied, 479 U.S. 1095, 107 S. Ct. 1313, 94 L. Ed. 2d 167 (1987). Further, the Notes on Use accompanying the diminished capacity instruction submitted by the appellant state that the instruction should only be given "if supported by evidence of mental disease or defect relevant to the existence of a required culpable mental state." MAI-Cr3d 308.03 (1987). Both experts in this case testified that appellant did not suffer a mental disease or defect. Instead, both experts testified that appellant's IQ of 80 indicated that appellant's intellectual functioning was below average. Both experts testified that because appellant was sexually abused as a child, appellant was unable to socially judge what normally would be considered right or wrong. According to both experts, while appellant could understand the difference between right and wrong, he had not observed role models behaving correctly and, therefore, appellant's judgment was lessened. According to Dr. Balcer, while appellant might know that behavior is wrong, it would be hard for him to believe that it was wrong because he had been a victim. While Dr. Holcomb testified that appellant suffered from diminished capacity, he admitted that the diminished capacity he diagnosed did not result from a mental disease or defect as defined by law. Balcer concurred with Holcomb on this subject. The evidence presented at trial fell short of being substantial evidence of a mental disease or defect validating submission of an instruction concerning diminished capacity. See State v. Shaw, 636 S.W.2d at 673. Therefore, the trial court did not err in refusing to submit the tendered instruction placing the issue of diminished capacity before the jury. Relying on State v. Kinnard, 671 S.W.2d 336 (Mo.App.1984), appellant attempts to argue that the experts' testimony that appellant did not suffer from a mental disease or defect did not foreclose the issue of diminished capacity. In other words, that it is proper to instruct the jury on diminished capacity even if there is no substantial evidence of mental disease or defect. This argument is counter to both Fisher and Weatherspoon, the Notes on Use following 51 the tendered instruction, and the language of Kinnard. In Kinnard, while the defendant's psychiatrist testified that the defendant was without mental disease or defect, the same witness raised questions as to whether the defendant possessed the state of mind for capital murder or murder in the second degree. Id. at 338. "Such evidence raised the issue of whether the defendant had a mental disease or defect...." Id. Thus, the court in Kinnard did not, as appellant contends, remove the requirement of substantial evidence of a mental disease or defect to support a claim of diminished capacity. Indeed, the court looked for, and found, such evidence in the expert's testimony. Further, Kinnard is factually distinguishable from this case. There is no showing of a lack of emotional stability or any impairment of appellant's reasoning ability. Id. He knew his conduct was not right. That is why he tried to hide it. Accordingly, contrary to appellant's argument, Kinnard is not persuasive authority in this case. In this case, there was no substantial evidence that appellant suffered from a mental disease or defect, as defined in Mo. Rev.Stat. § 552.010 (1986), "negating a culpable mental state." Notes on Use, MAICr3d 308.03 (1987). Accordingly, the court properly denied appellant's proffered instruction A. II. Appellant next asserts that the trial court erred in admitting evidence of his statements to members of the Jefferson City Police Department because appellant states that he made an equivocal request for counsel by saying "maybe I should talk to someone." Initially, it should be noted that appellant's claim is not preserved for appellate review because appellant failed to object to the admission of the statements when the evidence was introduced at trial. State v. Rayford, 611 S.W.2d 377, 378 (Mo. App.1981). However, we shall examine this issue ex gratia. The state bears the burden of proving the voluntariness of a confession by a preponderance of the evidence. State v. Lytle, 715 S.W.2d 910, 915 (Mo. banc 1986). On appeal, this Court must determine whether the evidence was sufficient to sustain the trial court's finding that the statement was voluntarily given. Id. Conflicts in the evidence are for the trial court to resolve and this Court must defer to the trial court's ability to determine credibility. Id. The Fifth Amendment prohibition against compelled self-incrimination provides an accused with the right to have counsel present during custodial interrogations. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).[1] An accused person in custody who has expressed his desire to deal with the police only through counsel is not subject to further interrogation by authorities until counsel has been made available to him, unless the accused himself initiates further communications, exchanges or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85, 68 L. Ed. 2d 378 (1981). In State v. Reese, 795 S.W.2d 69, 73 (Mo. banc 1990), the Missouri Supreme Court held that the mere mention of counsel is not enough. There must be a specific request for counsel. In the instant case, there was no violation of the Edwards rule because appellant at most made an ambiguous statement which did not constitute a clear assertion of his right to counsel. The record shows that the police had contacted appellant at his home at 9:00 a.m. on August 31, 1988. The police officer told appellant that she wanted to talk about J.H. When they 52 arrived at the police station, Police Officer Carew read appellant his Miranda rights and he signed a waiver. Officer Carew was aware of appellant's limited intellectual capacities and took extra precautions to be sure that appellant understood his rights. Detective Benson also entered the room during the interview. Appellant started talking and then stated that "maybe I should talk to someone." When Officer Benson asked appellant if he wanted an attorney, appellant replied no. When asked what he meant by "someone", appellant stated that he did not know for sure who to talk to or really what to do. Officer Benson then reviewed the Miranda rights form with appellant making sure that he understood each right. He told appellant that they had a phone and a telephone book in the library on the desk where appellant was. Appellant again waived his Miranda warnings and then made statements to the police. The statement by appellant that "maybe I should talk to someone" was ambiguous and did not constitute an assertion of his right to counsel under Edwards. In fact, when appellant was specifically asked whether he was requesting an attorney, appellant stated that he was not. In State v. Moore, 744 S.W.2d 479 (Mo. App.1988), the court found that a defendant's reflective and equivocal comment that "maybe" he needed an attorney was not equivalent to a request to cut off questioning. Id. at 481. Here, appellant's case was even more equivocal because he did not expressly refer to maybe speaking to an attorney, but instead only indicated that "maybe" he should talk to "someone." See also State v. Reese, 795 S.W.2d at 72-73. Appellant also argues that the police failed to comply with § 600.048 requiring the posting of the accused's rights to counsel. While appellant notes that Benson told appellant that if he needed to talk to an attorney there was a telephone and directory available, appellant argues that there is not sufficient evidence that Benson actually made the telephone and directory available to appellant. Because this issue is being raised for the first time on appeal, the issue was not sufficiently preserved. State v. Rayford, 611 S.W.2d 377, 378 (Mo. App.1981). The trial court considered the admissibility of the confession and found that it was voluntary. There is absolutely no indication in the record that appellant made a clear assertion of his right to counsel and, in fact, appellant unequivocally stated that he was not requesting assistance of an attorney. Accordingly, the court properly denied appellant's motion to suppress and admitted the confession at trial. III. In his final point on appeal, appellant argues that the trial court abused its discretion in admitting an out-of-court statement made by the victim pursuant to Mo. Rev.Stat. § 491.075.1 (1986), because appellant argues that the child's statement to Officer Kathy Carew failed to include "particularized guarantees of trustworthiness" required for its admission. Here, the court held a hearing pursuant to § 491.075.1 concerning the admissibility of a statement made by the four-year-old victim to Police Officer Kathy Carew. Carew, a police officer with the Jefferson City Police Department, testified that appellant's sister (the victim's babysitter), and the victim's family reported a case of sexual abuse. Originally, Carew spoke to appellant's sister on August 30, who told the officer that when she tried to put the victim to bed at the usual time, the victim was crying and would not go to sleep. When appellant's sister pursued why the victim would not go to sleep, the victim told her that Mike had touched her. Appellant's sister and mother decided to wait until the victim's mother got off work to tell her about this. After the victim's mother and babysitter reported this to the police, they took the victim to St. Mary's Hospital. Carew testified that when she interviewed the victim on August 31, 1988, in a library in the police station, the victim told her that the night before, Mike, her mother's 53 friend, had touched her between the legs where she went "poop" with his hand and that it hurt. J.H. also told the officer that appellant had removed her shirt and pants. The victim also told the officer that appellant told her to be quiet and not cry and indicated that appellant called it a "time out." The officer talked to J.H. for a very short time, making no promises or inducements to J.H. The victim's mother was not present in the interviewing room while the victim made the statement to the police. According to Officer Carew, she did not push the little girl to make statements. Prior to trial, the court also brought the child into appellant's presence and determined that she was an unavailable witness. In Idaho v. Wright, ___ U.S.___, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990), the United States Supreme Court addressed the question of whether the admission at trial of certain hearsay statements made by a child to an examining pediatrician violated the defendant's rights under the confrontation clause of the United States Constitution. In that case, the child was unavailable. Relying largely on Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), the Court held that the admission of the out-of-court statement of the child would not violate the confrontation clause if there are "particularized guarantees of trustworthiness" drawn from the totality of circumstances that surround the making of the statement and that render the declarant particularly worthy of belief. Wright, 110 S.Ct. at 3149. According to the court, "unless an affirmative reason, arising from the circumstances in which this statement was made, provides the basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the confrontation clause requires exclusion of the out-of-court statement." Id. at 3150. The court cited examples of factors which could be considered in determining whether the statement was reliable such as spontaneity and consistent repetition, the mental state of the declarant, the use of terminology unexpected of a child of similar age, and the lack of motive to fabricate. Id. However, the court noted that these factors were not exclusive and that courts have an appropriate leeway in their consideration of appropriate factors. According to the court: We therefore decline to endorse the mechanical test for determining "particularized guarantees of trustworthiness" under the Clause. Rather, the unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made. Id. The court, however, held that corroborating evidence may not be used in order to support a finding of particularized guarantees of trustworthiness. Id. at 3150-52. Section 491.075 provides for even more particularized guarantees of trustworthiness to be present when the child is unavailable. See State v. Wright, 751 S.W.2d 48, 51-52 (Mo. banc 1988) (relying on the reasoning of Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980)); State v. Bereuter, 755 S.W.2d 351, 353 (Mo.App.1988). Specifically, the interview of the child was not lengthy and Officer Carew clearly stated that she did not ask leading questions of the victim. See Wright, 751 S.W.2d at 52. In addition, the victim's mother was not present when the victim made the statement to the police officer indicating that there was no direct pressure on the victim when she made the statement. Id. Appellant attempts to argue that the victim's mother had a motive for telling the victim to lie because she had broken off her relationship with appellant. In fact, the victim's mother testified that while appellant wanted to get back together, she chose not to. There is absolutely no proof in the evidence that there was a connection between the break-up in this case and the victim's allegations of sexual abuse. Any argument that there was some sort of motive by the victim's mother to force the victim to fabricate this allegation is merely speculative and not supported by the evidence. 54 Moreover, the statement of the victim to appellant's sister was consistent with the statements made to the police by stating that appellant had touched her. See State v. Potter, 747 S.W.2d 300, 304-05 (Mo.App. 1988); State v. Bereuter, 755 S.W.2d 351, 353 (Mo.App.1988). The time between the occurrence of the offense and the victim's statement to police was not unusually long. See State v. Potter, 747 S.W.2d 300, 304-05 (Mo.App.1988). There were no intervening circumstances between the actual offense and the child's statement because the child was taken directly to the police station and then the hospital. While appellant argues that the victim had not slept between the time of the offense and her statement to police, the record is not clear that the victim had not slept at all and there was no indication from the record that the victim was too tired to make a statement. For the aforesaid reasons, the judgment of the trial court is affirmed. All concur. NOTES [1] Although appellant in his point relied on argues that the submission of his statement also violated his Sixth Amendment right, the statement was taken only hours after the crime was reported and there is no indication in the record that any Sixth Amendment right to counsel attached because adversarial judicial proceedings had been initiated. See Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986); State v. Beck, 687 S.W.2d 155, 156 (Mo. banc 1985).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519260/	522 F. Supp. 2d 667 (2007) Derrick DRUMMOND, Plaintiff, v. Detective David CASTRO (shield No. 769), Detective John Burgos (shield No. unknown) both of whom being employed by the City of New York and the New York City Police Department in their official and Individual capacity, who were Involved in the arrest and Prosecution of plaintiff as set forth herein, The City of New York, Defendants. No. 00 Civ. 0785(LMM)(KNF). United States District Court, S.D. New York. November 26, 2007. 668 669 670 Steve James Marchelos, Mineola, NY, for Plaintiff. Kathleen Alicia Donohue, Salon Marrow Dyckman & Newman LLP, Seth D. Eichenholtz, City of New York Law Department, Sabrina Melissa Tann, New York City Law Depart., Office of the Corporation Counsel, New York, NY, for Defendants. MEMORANDUM AND ORDER McKENNA; District Judge. Plaintiff Derrick Drummond brings the present action pursuant to 42 U.S.C. 1983, claiming that his rights under the Fourth and Fourteenth Amendments of the Constitution were violated, and specifically alleging claims of false arrest, malicious prosecution, and excessive force against Defendants David Castro, John Bourges (appearing sometimes as "Burgos"), and the City of New York. Here Plaintiff moves to compel Defendants to produce the identity of the witness on the basis of whose testimony Plaintiff was arrested and prosecuted for the murder of Hewley Steele. Defendants move for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. I. Background a. Factual Background On June 17, 1996, detectives from the 33rd Precinct of the New York City Police Department were called to 175th Street and Audobon in New York City to investigate the shooting death of Hewley Steele and the attempted murder of a surviving eyewitness. (Defendants' Local Rule 56.1 Statement ("Defs.' 56.1 Stmt.") ¶ 1.) Defendant Detective David Castro was assigned to be the lead detective, and Defendant Detective John Bourges "assisted fully" in the investigation. (Defs.' 56.1 Stmt. ¶ 2; Plaintiff's Local Rule 56.1 Statement ("Pl.'s 56.1 Stmt.") ¶ 48.) Upon reaching the crime scene, the detectives found a blood trail leading from the sidewalk in front of 534 West 175th Street into the basement apartment, where they found the body of Hewley Steele. (Defs.' 56.1 Stmt. ¶ 3.) The surviving victim, whose identity remains undisclosed, had been shot in the head, and was taken by Emergency Medical Services to Columbia Presbyterian Hospital prior to the detectives' arrival at the crime scene. (Id. at ¶ 4 and ¶ 4, fn. 1.) According to Detective Castro, police efforts following the shooting to canvass the neighborhood for additional witnesses to the crime failed to produce any witnesses or other material evidence. (Pl.'s 56.1 Stmt. ¶¶ 52-53.) Police were also unable to find any fingerprints at the crime scene. (Id. at ¶ 54.) According to the "DD5" police reports completed by Detectives Bourges and Castro, 671 Detectives Bourges and Castro went to the hospital to speak with the surviving witness after leaving the crime scene on June 17, 1996. (Pl.'s 56.1 Stmt. Exhibit B at 000031; Defs.' 56.1 Stmt. ¶ 5.) At the hospital, the surviving witness told Detective Bourges that while he was at Hewley Steele's house in the process of cutting Mr. Steele's hair, around 5:45 that evening, a black man in his mid-thirties with a beard, and wearing a black sweat suit, entered the apartment. (Pl.'s 56.1 Stmt. Exhibit 13 at 000031; Defs.' 56.1 Stmt. ¶ 7.) The surviving witness told Detective Bourges that he had noticed Mr. Steele's reaction and, in response, had turned and seen the man holding a gun. (Pl.'s 56.1 Stmt. Exhibit B at 000031; Defs.' 56.1 Stint. ¶ 8.) The witness told the detectives that he could identify the shooter and that Mr. Steele had called out to the shooter by name, although he could not remember the name at that time. (Pl.'s 56.1 Stmt. Exhibit B at 000031; Defs.' 56.1 Stmt. ¶ 9.) On June 26, 1996, Detective Castro returned to the hospital to speak with the surviving witness, who repeated his previous account of the events of June 17. (Defs.' 56.1 Stmt. ¶ 10.) The witness additionally told Detective Castro that Mr. Steele had seen the shooter through the window as he approached the door and had said "that look like Derick." (Defs.' 56.1 Stmt. ¶ 11; Pl.'s 56.1 Stmt. ¶ 63.) The witness also stated that Mr. Steele had greeted the man at the door, calling him "Derick." (Defs.' 56.1 Stmt. ¶ 12.) The attacker shot Mr. Steele, and the witness struggled with the attacker and then was struck with the gun and shot in the face by the attacker, according to the witness's June 26 statement. (Id. at ¶ 13.) The surviving witness made another statement on October 26, 1996, in which he told police that it was he who let the perpetrator into the apartment, not Hewley Steele. (Pl.'s 56.1 Stmt. ¶ 67.) During the investigation, police found a personal telephone book in Mr. Steele's apartment. (Defs.' 56.1 Stmt. ¶ 14; Pl.'s 56.1 Stmt. ¶ 65.) Detective Castro searched the book for names similar to "Derick" and called a number listed as belonging to a person named "Derrick." (Defs.' 56.1 Stmt. ¶ 15-16.) An investigation determined that the number currently belonged to someone with a name similar to "Derick" and that the previous owner of the telephone number was Plaintiff Derrick Drummond. (Id. at ¶¶ 17-18; Pl.'s 56.1 Stint. ¶ 65.) Detectives Bourges and Castro contacted Assistant District Attorney ("ADA") Ann Donnelly to obtain a subpoena for copies of the Department of Motor Vehicles ("DMV") License photos for the two individuals who had been assigned to the telephone number found in Hewley Steele's address book, including Plaintiff Derrick Drummond. (Defs.' 56.1 Stmt. ¶ 19.) ADA Donnelly provided a subpoena to Detective Bourges, who obtained DMV licenses for Plaintiff and the other individual. (Id. at ¶ 20.) Detective Bourges created two different photo arrays using the DMV license photos, placing the two individuals assigned to the telephone number found in Mr. Steele's address book in separate arrays. (Id. at ¶ 22.) The witness picked out Plaintiff Derrick Drummond's picture, asserting that he was the shooter. (Id. at ¶ 23.) The witness had previously gone through thousands of photos from police photo books, and had never identified Plaintiff or anyone else as the shooter. (Id. at ¶ 21; Pl.'s 56.1 Stmt. ¶ 66; Deposition of John Bourges, pp. 59-61.)[1] 672 On February 3, 1997, Plaintiff Derrick Drummond was arrested and brought to the 33rd Precinct. (Defs.' 56.1 Stmt. ¶ 24.) When questioned at the time of his arrest, Plaintiff admitted to knowing Hewley Steele, though he said he had not seen Mr. Steele since 1992. (Id. ¶ 25; Pl.'s 56.1 Stmt. ¶ 34.) The surviving witness picked Plaintiff out of a lineup and identified him as the shooter. (Defs.' 56.1 Stmt. ¶ 26.) The District Attorney's office filed a criminal complaint charging Plaintiff with murder in the 2nd degree, attempted murder in the 2nd degree, assault in the 1st degree, and criminal possession of a weapon in the 2nd degree. (Id. at ¶ 27.) After Plaintiff was arraigned, he waived his rights under CPL 180.80 to have his case presented to a Grand Jury within five days of arraignment, and the District Attorney's office did not seek a Grand Jury indictment. (Id. at ¶ 28.) While in custody, Plaintiff told police that on the day of the shooting, he had worked from 7:30 a.m. to 5:30 p.m. (Pl.'s 56.1 Stmt. ¶ 33.) In a later meeting, after Plaintiffs release, in which Plaintiff was accompanied by counsel, he told ADA John W. Carter and Defendant Detective Bourges that after leaving work at 5:30 p.m. on June 17, 1996, he had had dinner with two friends in Mount Vernon. (Id. at ¶¶ 46-47.) Plaintiff's family posted bail in the amount of $50,000 on February 19, and Plaintiff was released. (Id. at ¶ 40.) Prior to Plaintiffs release, Detectives Bourges and Castro conducted a search of Plaintiffs apartment and car, but failed to find a gun or other physical evidence linking Plaintiff to the crime. (Id. at ¶ 41-42.) The police investigation revealed that the surviving witness was the nephew of the deceased victim, Hewley Steele. (Id. at ¶ 58.) According to Defendant Detective Castro, the surviving witness was at one time a suspect in the murder of Hewley Steele. (Id. at ¶ 59.) Detective Castro also testified in his deposition that the surviving witness had previously been arrested for assault in the jurisdiction of the 76th Precinct in Brooklyn, though Detective Castro did not know the exact circumstances surrounding the arrest. (Id. at ¶ 60.) Plaintiff appeared in court multiple times between his initial arrest on February 3, 1997 and the dismissal of all charges against him on March 3, 1998, during which time the District Attorney's office continued to investigate the crime. (Id. at ¶ 43.) At the time of his arrest, Plaintiff was employed by Verizon Communications as a telephone technician, and had never been arrested or convicted of a crime. (Id. at ¶¶ 30-31.) b. Procedural Background Plaintiff filed the present action in this court on February 3, 2000. Both parties engaged in substantial discovery before this Court and before Magistrate Judge Kevin Nathaniel Fox. Plaintiff filed the Motion to Compel Discovery pursuant to FRCP 37(a) on March 21, 2005, and Defendants filed their Motion for Summary Judgment on June 28, 2005. II. Plaintiff's Motion to Compel Plaintiff here moves to compel Defendants to produce the name, address, and telephone number of the surviving witness to enable Plaintiff to depose the witness. Plaintiff argues that, as the sole source of direct evidence linking Plaintiff to the crime at issue, the surviving witness must be deposed in order to determine whether 673 probable cause existed to arrest and prosecute Plaintiff, and, in the absence of probable cause, whether Defendants are entitled to qualified immunity from liability. Defendants assert probable cause as an affirmative defense to Plaintiff's claims for false arrest and malicious prosecution. Plaintiff asserts that Defendants are unable to establish the existence of probable cause in the absence of testimony from the surviving witness, and that Plaintiff requires deposition testimony from the surviving witness to successfully rebut Defendants' probable cause defense. a. Probable Cause i. Probable Cause Standard Probable cause is established "when the arresting officer has `knowledge or reasonable trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.'" Singer v. Fulton County Sheriff, 63 F.3d 110 (2d Cir.1995) (quoting O'Neill v. Town of Babylon, 986 F.2d 646, 650 (2d Cir.1993) (internal citations omitted)). Probable cause may exist where an officer has mistaken information, so long as it was reasonable for him to rely on the information. See Mistretta v. Prokesch, 5 F. Supp. 2d 128, 133 (E.D.N.Y.1998) Where there is no dispute regarding the pertinent knowledge of the arresting officer, probable cause may be determined as a matter of law. Mistretta, 5 F.Supp.2d at 133 (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996)). Furthermore, even where factual disputes exist, a § 1983 claim may fail if the plaintiff's version of events establishes the existence of probable cause to arrest. Id. Courts have repeatedly found that there is a presumption of probable cause to arrest when police are acting on the testimony of a putative victim or eyewitness. Mistretta, 5 F.Supp.2d at 133 (citing Miloslavsky v. AES Eng'g Soc'y, 808 F. Supp. 351, 355 (S.D.N.Y.1992)) ("The veracity of citizen complaints [sic] who are the victims of the very crime they report to the police is assumed."), aff'd, 993 F.2d 1534 (2d Cir. 1993), cert, denied, 510 U.S. 817, 114 S. Ct. 68, 126 L. Ed. 2d 37 (1993); see also Singer v. Fulton County Sheriff 63 F.3d 110, 119 (2d Cir.1995) ("[A]n arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the victim's veracity.") In Gisondi v. Town of Harrison, 72 N.Y.2d 280, 284, 532 N.Y.S.2d 234, 528 N.E.2d 157 (1988), a decision affirming an appellate reversal of a plaintiff's jury Verdict on false arrest and malicious prosecution claims resulting from a victim's identification of plaintiff as the man who raped her, the New York Court of Appeals held that the victim's identification of the purported perpetrator created a presumption of probable cause that was not overcome by the fact that the Grand. Jury later voted to dismiss the charges. In Garofalo v. City of New York, 1996 WL 94806, 2 (S.D.N.Y.), the court found as a matter of law that probable cause to arrest had existed where a putative victim had been prepared to swear to allegations that plaintiffs had violated a provision of the New York Penal Law, and noted that it would be "unwise for the courts to engage in a hind-sight review to decide whether a police officer should have credited the story of a person who was willing to swear that she was the victim of a crime." Once they have established the existence of probable cause to arrest, police officers do not have to endeavor to negate it. Carson v. Lewis, 35 F. Supp. 2d 250, 261 (E.D.N.Y.1999) (citing Baker v. McCollan, 443 U.S. 137, 146, 99 S. Ct. 2689, 674 61 L. Ed. 2d 433 (1979)). "`Once officers possess facts sufficient to establish probable cause, they are neither required nor allowed to sit as prosecutor, judge or jury. Their function is to apprehend those suspected of wrongdoing, and not to . . . determine guilt, through a weighing of the evidence.'" Eisenberg v. Dist. Attorney of King, 1996 WL 406542, at 4 (E.D.N.Y. 1996) (quoting Krause v. Bennett, 887 F.2d 362, 372 (2d Cir.1989)) (granting summary judgment on a false arrest claim even where the putative sexual abuse victim was known to have made an unsubstantiated complaint of sexual abuse in the past). See also Baker v. McCollan, 443 U.S. 137, 145-46, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979) (holding that once a police officer has a reasonable basis to believe there is probable cause to arrest, the officer is not required to explore or eliminate every theoretically plausible claim of innocence before making an arrest). ii. Evidence of Probable Cause Defendants offer evidence to support their finding of probable cause to arrest and prosecute Plaintiff in the form of deposition testimony from Defendant Detectives Bourges and Castro, Assistant District Attorneys Donnelly and Carter and DD5 police reports, which contain recorded observations and witness statements from various stages of the investigation. Plaintiff argues that the DD5 reports are inadmissible as hearsay, and should therefore not be considered as evidence in the court's examination of probable cause for the purposes of Plaintiffs motion to compel and Defendants' motion for summary judgment. Defendants offer the DD5 reports in support of their contention that probable cause existed for the arrest and subsequent prosecution of Plaintiff. The relevant inquiry for determining whether probable cause existed is whether the knowledge available to Defendants at the time of the arrest and prosecution provided a basis for a reasonable person in Defendants' position to believe an offense had been committed. As noted above, this belief may be reasonable even if the information relied upon is false, so long as the source is reasonably credible. See Jenkins v. Keating, 147 F.3d 577, 585 (7th Cir.1998) ("[S]o long as a reasonably credible witness or victim informs the police that someone has committed . . . a crime, the officers have probable cause to place the alleged culprit under arrest, and their actions will be cloaked with qualified immunity if the arrestee is later found innocent.'") (quoting Tangwall v. Stuckey, 135 F.3d 510, 520 (7th Cir.1998)); Gramenos v. Jewel Cos., Inc., 797 F.2d 432, 439 (7th Cir.1986) (quoting Daniels v. United States, 393 F.2d 359, 361 (D.C.Cir.1968)) ("Probable cause does not depend on the witness turning out to have been right; it's what the police know, not whether they know the truth that matters.") When offered for the purpose of establishing Defendants' knowledge at the time of their decisions to arrest and prosecute Plaintiff, the DD5 reports are not hearsay, as they are not offered for the truth of the information they contain, but rather to establish a basis for Defendants' finding of probable cause. The Court finds, therefore, that the DD5 reports may be properly considered as evidence relevant to the probable cause inquiry. iii. Probable Cause Discussion Plaintiff asks that the Court compel Defendants to disclose the identity of the surviving witness, arguing that this witness's testimony is necessary to establish the reasonableness of Defendants' reliance on the witness's testimony, thereby determining whether or not probable cause existed to arrest and prosecute Plaintiff. 675 Plaintiff asserts that several facts from the record demonstrate the witness's unreliability, and that Defendants cannot establish the existence of an objective reasonable basis for believing that Plaintiff committed the crime, absent direct testimony from the surviving witness. Plaintiff points to differences in the surviving" witness's statements regarding the events surrounding the crime and the identity of the shooter, arguing that these discrepancies undermine the witness's objective reliability. In his statement to police from the hospital on June 17, 1996, the day of the shooting, the witness told police that he did not know the identity of the shooter, and that he remembered Hewley Steele calling the shooter by name but could not remember the name. In his statement on June 29, 1996, the witness told police that he recalled Steele looking through the window and saying "that look like Derick." In a statement on October 26, 1996, the witness told police that it was he rather than Hewley Steele that had let the shooter into the apartment and described the shooter as "going off," a description not used in previous statements. (Pl.'s 56.1 Stmt. ¶ 67.) The Court disagrees with Plaintiff's contention that the surviving witness's statements contain inconsistencies sufficient to raise material concerns about his credibility. The New York Court of Appeals noted in Gisondi v. Town of Harrison: In any investigation the police are likely to' encounter discrepancies . . . These matters may impair their ability to prove guilt beyond a reasonable doubt at trial, but they generally have little bearing at preliminary stages where the only relevant concern is whether there is sufficient evidence to show probable cause to believe the defendant committed the crime. 72 N.Y.2d 280, 285, 532 N.Y.S.2d 234, 528 N.E.2d 157 (1988). Likewise, the Second Circuit has rejected the argument that conflicting accounts from an alleged victim arid an arrestee should have prompted a more thorough investigation by police. "[A] finding of probable cause is not foreclosed where a police officer is presented with different stories from an alleged victim and an arrestee." Oblio v. CUNY, 2003 U.S. Dist. LEXIS 2886 at 26-27 (E.D.N.Y.2003). In the instant case, the witness maintained in all his statements that he did not know the shooter, and his initial failure to remember details that he recalled in later statements, such as the shooter's name, is not implausible, particularly in light of the fact that he was shot in the head during the crime. Further, the reliability of the witness's identification of Plaintiff in the photo array and lineup is enhanced by the fact that the police located Plaintiff by tracing a telephone number found in Hewley Steele's address book under the name "Derrick." Police do not rite any evidence of a prior relationship between the witness and Plaintiff that would tend to suggest a hidden motive on the part of the witness or cast doubt on the witness's veracity. Plaintiff additionally cites Defendant Detective Castro's deposition testimony that the surviving witness had previously been arrested for assault, and that he had at one time been a suspect in the crime at issue here, arguing that these are factors that call into question the witness's credibility and establish the need for further investigation into the witness's veracity. However, these are not facts that cast substantial doubt on the credibility of the witness's statements with respect to the crime at issue here. Further, after they obtain sufficient evidence to establish the existence of probable cause, police are not obligated to attempt to disprove the existence 676 of any evidence weighing against a finding that the suspect committed a given crime. See Carson, 35 F.Supp.2d at 261. The Court disagrees with Plaintiffs contention that access to the surviving witness is necessary to establish whether or not the witness was sufficiently reliable to provide police and prosecutors with probable cause to arrest and prosecute. Having established that the surviving witness was apparently a victim of the shooting and that he identified Plaintiff as the shooter through a process that was objectively reasonable and substantiated by his earlier testimony regarding the shooter's name, Defendants have sufficiently established that probable cause existed to arrest and prosecute Plaintiff. Defendants assert that the surviving witness's continued safety requires that the District Attorney's office maintain the confidentiality of his identity. This consideration, in addition to the finding that a deposition of the surviving witness is unnecessary for a determination that probable cause existed to arrest and prosecute plaintiff, weighs in favor of a decision to deny Plaintiff's motion to compel. Plaintiffs motion to compel is therefore DENIED. III. Defendants' Motion for Summary Judgment Defendants move for summary judgment on Plaintiffs claims under § 1983 for violation of his rights under the Fourth and Fourteenth Amendments to the Constitution; specifically for false arrest, malicious prosecution and excessive force. a. Summary Judgment Standard Federal Rule of Civil Procedure 56(c) provides that summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "A dispute is not `genuine' unless the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Nabisco, Inc. v. Warner-Lambert Co., 220 F.3d 43, 45 (2d Cir.2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). "A fact is `material' for these purposes if it `might affect the outcome of the suit under the governing law.'" Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir.2004) (quoting Anderson, 477 U.S. at 248, 106 S. Ct. 2505). In weighing a motion for summary judgment, ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to' the party opposing the summary judgment motion. See Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990). However, "the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (citing Fed.R.Civ.P. 56) (emphasis omitted). "[C]onclusory statements, conjecture or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.1996) (citations omitted). b. False Arrest Claim A § 1983 claim for false arrest rests on an individual's Fourth Amendment right to be free from unreasonable seizures, including arrest without probable cause, and is substantially the same as a claim for false arrest under New York law. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996). To state a claim for false arrest, a plaintiff must prove that: (1) the 677 defendant intended to confine him; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged. Id. Regardless of whether the first three prongs are satisfied, the claim for false arrest will fail where defendants establish that probable cause existed, as the existence of probable cause is a complete defense to an action for false arrest. See Bernard v. United States, 25 F.3d 98, 102 (2d Cir.1994) (citing Zanghi v. Inc. Vill. of Old Brookville, 752 F.2d 42, 45 (2d Cir. 1985)). A defendant police officer who arrests a person without a warrant is not liable for false arrest if the officer had reasonable cause to believe that the individual committed an offense. See Illinois v. Gates, 462 U.S. 213, 241-46, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). As discussed above, Defendants have provided sufficient evidence to demonstrate the existence of probable cause to arrest Plaintiff, thereby defeating Plaintiffs false arrest claim. Interpreting all ambiguities in the light most favorable to Plaintiff, the Court finds that the undisputed facts provide sufficient grounds for a finding that at the time of Plaintiffs arrest, police possessed sufficient "reasonable trustworthy information . . . to warrant a person of reasonable caution in the belief that the offense" had been committed." Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir.1995) (internal citations omitted). The DD5 reports and testimony from Defendant Detectives Bourges and Castro establish that grounds for Plaintiffs arrest were provided by several key pieces of evidence: testimony from the surviving witness that Hewley Steele called the shooter "Derick" or something similar; the discovery of a telephone number assigned to "Derrick" in Mr. Steele's address book formerly belonging to Plaintiff; and finally, the surviving witness's identification of Plaintiff in a photo array and lineup. Notwithstanding Plaintiffs arguments of inconsistency in the surviving witness's statements and the possibility that the surviving witness had an arrest record, the record contains no facts that would sufficiently undermine the witness's credibility so as to make it unreasonable for Defendants to rely on the witness's testimony as a basis for deciding to arrest Plaintiff. The possibility that the witness had an arrest record is not directly relevant to the credibility of his testimony respecting the crime at issue here, and the minor discrepancies in the witness's statements do not raise serious doubts as to the reliability of the material facts in his testimony. The Court finds that Defendants have met their burden of establishing that probable cause existed and that Plaintiff's arrest was therefore privileged. As a result, Defendants' motion for summary judgment is GRANTED with respect to Plaintiff s claim for false arrest. c. Malicious Prosecution Claim To state a claim for malicious prosecution, a plaintiff must show (1) the initiation or continuation of a criminal proceeding against the plaintiff; (2) termination of the proceeding in the plaintiffs favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions. Russell v. Smith, 68 F.3d 33, 36 (2d Cir.1995). As with a false arrest claim, the presence of probable cause is a complete defense to an action for malicious prosecution under § 1983 or state law. See Graebe v. Falcetta, 726 F. Supp. 36, 38 (E.D.N.Y.1989), aff'd, 946 F.2d 883 (2d Cir. 1991). For malicious prosecution purposes, "the determination of probable cause is assessed in light of the facts 678 known or reasonably believed at the time the prosecution was initiated, as opposed to at the time of arrest." Carson v. Lewis, 35 F. Supp. 2d 250, 263 (E.D.N.Y.1999) (citing Dukes v. City of New York, 879 F. Supp. 335, 342 (S.D.N.Y.1995)). Further, "a malicious prosecution claim will be defeated by a finding of probable cause to arrest, unless the plaintiff can demonstrate mitigating facts to vitiate probable cause which were first uncovered after the arrest." Carson, 35 F.Supp.2d at 263. Plaintiff fails to establish the existence of evidence uncovered after the arrest that successfully vitiates probable cause. While he points to his alibi for the evening of the crime and the character reference given by his employer as evidence that should weigh further against a finding of probable cause to prosecute following his arrest, the Court finds that these factors do not suffice to defeat Defendants' showing of probable cause. As discussed above, the surviving witness's identification of Plaintiff established an objectively reasonable basis for a finding of probable cause to arrest and prosecute Plaintiff. While evidence of Plaintiff s character and whereabouts on the night of the crime are certainly factors that would be weighed carefully at trial, they do not undermine the previously established basis for a finding of probable cause to arrest and prosecute Plaintiff. Plaintiff also cites the prosecutors' failure to seek a grand jury indictment as evidence of a lack of probable cause to prosecute Plaintiff. In fact, the prosecutors' failure to seek a grand jury indictment does not serve as evidence against a finding that probable cause existed to arrest and prosecute Plaintiff; the lack of an indictment' merely obligates Defendants to prove the existence of probable cause as an affirmative defense to Plaintiffs claims of false arrest and malicious prosecution. See Broughton v. State, 37 N.Y.2d 451, 373 N.Y.S.2d 87, 335 N.E.2d 310 (1975) (noting that in cases where an arrest or imprisonment is extrajudicial, the burden is on the defendant to prove the existence of probable cause). The Court finds that Defendants have successfully met their burden of proving the existence of probable cause to arrest and prosecute Plaintiff. Defendants' motion for summary judgment is therefore GRANTED with respect to Plaintiffs malicious prosecution claim. d. Excessive Force Claim Plaintiff further asserts a claim that Defendants used excessive force against him in violation of his Fourth Amendment rights. The. Supreme Court has held that "claims that law enforcement officers have used excessive force . . . in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard." Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). To determine whether the amount of force used is reasonable, a reviewing court must take into consideration the "totality of the circumstances faced by the officer on the scene," Lennon v. Miller, 66 F.3d 416, 425 (2d Cir.1995), and assess whether the officer's actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying, intent or motivation. Graham, 490 U.S. at 397, 109 S. Ct. 1865. To sustain a claim of excessive force, a plaintiff must present sufficient evidence to establish that "the alleged use of force is `objectively sufficiently serious or harmful enough' to be actionable." Cunningham v. Rodriguez, 2002 WL 31654960, at 4, 2002 U.S. Dist. LEXIS 22660, at 10-11 (S.D.N.Y.2002) (quoting United States v. Walsh, 194 F.3d 37, 47 (2d *679 Cir.1999)). Further, "a de minimis use of force will rarely suffice to state a Constitutional claim." Romano v. Howarth, 998 F.2d 101, 105 (2d Cir.1993). The court in Wilder v. Village of Amityville, 288 F. Supp. 2d 341, 344 (E.D.N.Y.2003), granted summary judgment dismissing a claim of excessive force based on allegations of tight handcuffs where the handcuffs resulted in inflammation of the plaintiffs wrists for a period of twenty-four hours but did not require medical attention. Here, Plaintiff alleges that during his arrest he was handcuffed tightly, but he does not allege any injury from the handcuffing or other circumstances of the arrest. The Court agrees with Defendants' contention that Plaintiff fails to present any evidence apart from the tight handcuffs that would lead a reasonable juror to find that police used excessive force in the course of Plaintiffs arrest. Further, the lack of any injury resulting from the tight handcuffs and the reasonableness of officers' use of handcuffs during the arrest of a murder suspect leads the Court to conclude that Defendants' use of force in' this instance fails to violate the Fourth Amendment's reasonableness standard. Defendants' motion for summary judgment is therefore GRANTED as to Plaintiff's excessive force claim. Defendants' motion for summary judgment is therefore GRANTED. IV. CONCLUSION For the foregoing reasons, Plaintiff s motion to compel is DENIED and Defendants' motion for summary judgment is GRANTED. SO ORDERED. NOTES [1] In his deposition testimony, Defendant Detective John Bourges fails to specify whether or not Plaintiff Derrick Drummond's photo was included in the "thousands" of photos viewed by the surviving witness early in the investigation, prior to the witness's viewing of the photo arrays containing the photo of Derrick Drummond obtained from the DMV. Neither Plaintiff nor Defendants address this question in their papers.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519285/	806 S.W.2d 928 (1991) Ruben Francisco DEDESMA, Jr., Appellant, v. The STATE of Texas, Appellee. No. 13-90-130-CR. Court of Appeals of Texas, Corpus Christi. March 28, 1991. Rehearing Overruled April 11, 1991. 930 Joseph A. Connors, Brenda Perez, McAllen, for appellant. Rene Guerra, Dist. Atty., Theodore C. Hake, Asst. Crim. Dist. Atty., Edinburg, for appellee. Before NYE, C.J., and SEERDEN and HINOJOSA, JJ. OPINION NYE, Chief Justice. A jury found appellant, Ruben Francisco Dedesma, Jr., guilty of aggravated robbery and assessed as punishment twenty-five years' confinement in the Texas Department of Criminal Justice, Institutional Division. By eleven points of error, appellant complains that the trial court erred by denying his motion for new trial and failing to allow effective cross-examination. He also complains of charge error and ineffective assistance of counsel. We affirm the trial court's judgment. The State's evidence shows that on March 20, 1988, at approximately 9:30 p.m., appellant and a companion entered a convenience store in San Juan, Texas. The store's owner, Santos Marmalejo, approached the cash register. Appellant pointed a sawed-off shotgun at him and said, "Pass me the money." The companion took the money from the cash register. Appellant and his companion fled the store. The defense was alibi. By points 3A, 3B and 3C, appellant complains that the trial court violated his Sixth Amendment right to confrontation by preventing him from thoroughly and effectively cross-examining three State's witnesses concerning their perception, memory and bias. The Confrontation Clause provides a defendant two types of protections: the right physically to face those who testify against him, and the right to conduct cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S. Ct. 989, 998, 94 L. Ed. 2d 40 (1987); Delaware v. Fensterer, 474 U.S. 15, 18-19, 106 S.Ct 292, 293-94, 88 L. Ed. 2d 15 (1985). A denial of effective cross-examination, without waiver, is constitutional error of the first magnitude. No amount of showing of want of prejudice can cure it. Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 931 1111, 39 L. Ed. 2d 347 (1974); Smith v. Illinois, 390 U.S. 129, 131, 88 S. Ct. 748, 749-50, 19 L. Ed. 2d 956 (1968). Normally, the right to confront one's accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses. Ritchie, 480 U.S. at 53, 107 S.Ct. at 999; Fensterer, 474 U.S. at 20, 106 S.Ct. at 294-95.[1] In short, the Confrontation Clause guarantees only "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent the defense might wish." Kentucky v. Stincer, 482 U.S. 730, 739, 107 S. Ct. 2658, 2664, 96 L. Ed. 2d 631 (1987). See also Ohio v. Roberts, 448 U.S. 56, 73 n. 12, 100 S. Ct. 2531, 2543 n. 12, 65 L. Ed. 2d 597 (1980) (except in "extraordinary cases, no inquiry into `effectiveness' [of cross-examination] is required"). Cross-examination is the principal method by which the believability of a witness and the truth of his testimony are tested. Davis, 415 U.S. at 316, 94 S.Ct. at 1110. The cross-examiner is permitted to test the witness' perceptions and memory, and to impeach the witness. A witness' credibility may be tested by cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they relate directly to issues or personalities in the case. The Confrontation Clause does not prevent a trial court from imposing limits on defense counsel's inquiry into the potential bias of a prosecution witness. Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674 (1986). In this respect, trial courts retain wide latitude to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant. Van Arsdall, 475 U.S. at 679, 106 S.Ct. at 1435. The Confrontation Clause does not guarantee that every prosecution witness will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. Fensterer, 474 U.S. at 21-22, 106 S.Ct. at 295-96. The Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the fact-finder's attention the reasons for giving scant weight to the witness' testimony. A Confrontation Clause violation does occur when a defendant is prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby "to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness." Van Arsdall, 475 U.S. at 680, 106 S.Ct. at 1436; Davis, 415 U.S. at 318, 94 S.Ct. at 1111. By subpoint 3A1, appellant complains that he was denied an opportunity to cross-examine the store owner Santos Marmalejo concerning his recollection of the crime. Marmalejo testified on cross-examination that he refused to speak with counsel concerning the alleged robbery. Counsel asked Marmalejo, "But the fact of the matter was, when I asked you questions, you didn't answer them, did you, sir?" The trial court sustained the State's objection. Counsel asked Marmalejo, "Sir, isn't it true that I told you I wasn't calling you a liar, I just wanted to get to the truth?" The trial court instructed counsel not to get into this any further. Article 39.02 of the Texas Code of Criminal Procedure provides that a trial court, after determining that good reason exists, 932 shall allow the defendant to take a witness' deposition. Absent the trial court's approval, victims are not required to speak with a defendant or his counsel. In this instance, counsel's cross-examination was irrelevant. It sought to harass the victim. The trial court only reasonably limited counsel's cross-examination. Van Arsdall, 475 U.S. at 679, 106 S.Ct. at 1435. By subpoint 3A2, appellant complains that he was denied the opportunity to cross-examine Santos Marmalejo concerning whether he had been the victim of previous robberies. Counsel asked Marmalejo, "Sir, isn't it true that in that area that your store is located that there's a lot of crime in that area?" The trial court sustained the State's objection. Counsel argued to the trial court that whether Marmalejo had been the victim of other robberies was relevant to his ability to identify appellant and to his bias and interest in the case's outcome. In the trial, counsel was afforded wide latitude to cross-examine Marmalejo concerning his ability and opportunity to identify appellant as a perpetrator of the alleged robbery. Counsel's question is only marginally relevant when considering his cross-examination as a whole. We find no reversible error. By subpoint 3A3, appellant complains that he was denied the opportunity to cross-examine Marmalejo concerning a possible bias for identifying him as a perpetrator of the alleged offense. Counsel asked Marmalejo, "Don't you know, sir, that if these robbers were not found, then you would not get your money back, isn't that true, sir?" Again, the trial court sustained the State's objection. Marmalejo had previously testified on cross-examination that he felt angry and violated after the alleged robbery. He also testified that he wanted to get the robbers. Again, counsel for the defendant had wide latitude to cross-examine Marmalejo concerning his ability and opportunity to identify appellant. The question was only marginally relevant when considering the scope and breadth of the entire cross-examination. By subpoint 3B1, appellant complains that he was denied the opportunity to cross-examine Officer Samuel Segura concerning a material witness. On directexamination, Segura testified that Michael Suarez told him that he was at the store when the robbery occurred. Segura testified that at the time of trial, Suarez was in Chicago. On cross-examination, Counsel asked Segura, "He [Suarez] doesn't wear glasses does he, sir?" The trial court sustained the State's objection. Whether Suarez wore glasses was not relevant. Thus, the trial court reasonably limited counsel's cross-examination. Van Arsdall, 475 U.S. at 679, 106 S.Ct. at 1435. By subpoint 3B2, appellant complains that he was denied the opportunity to cross-examine Officer Segura concerning Michael Suarez. Counsel asked Segura, "Officer, after you talked with the mother of Michael Suarez, did you obtain a telephone number?" The trial court would not allow counsel to ask Segura any more questions about Suarez in the jury's presence. The trial court told counsel to make a record on this matter. Counsel's question is only marginally relevant when considering the scope and breadth of Segura's cross-examination. Thus, the trial court did not unduly limit counsel's cross-examination. Van Arsdall, 475 U.S. at 679, 106 S.Ct. at 1435. By subpoint 3B3, appellant complains that during the motion for new trial hearing, he was denied the opportunity to cross-examine Officer Segura concerning his knowledge of Michael Suarez and "reasons to fabricate testimony." At the hearing, Segura testified on cross-examination that Suarez identified appellant. After reading his police report, Segura also said that his report did not say that he either contacted Suarez or that Suarez identified appellant. Counsel offered the report into evidence. During a bench conference, the trial court overruled the motion for new trial but allowed counsel to continue Segura's cross-examination. The police report 933 was admitted into evidence, and counsel said that he had nothing further. The trial court overruled the motion for new trial. We find that the trial court did not limit the scope or nature of counsel's cross-examination. By subpoint 3C1, appellant complains that on direct-examination, he was denied the opportunity to question Officer Samuel Soto concerning his recollection of the crime scene. Soto, however, was not a witness against appellant. As such, appellant was not denied the right of confrontation or the right of cross-examination. Drew v. State, 743 S.W.2d 207, 225 (Tex. Crim.App.1987). After reviewing the context of appellant's complaints, we hold that the trial court did not violate appellant's Sixth Amendment right to confrontation. By point five, appellant complains that the trial court erred in omitting the culpable mental state of "intentionally" or "knowingly" from the charge's application paragraph. Appellant did not object to the charge. Therefore, he must claim fundamental error and show egregious harm; that is, that he was denied a fair and impartial trial as a result of the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim. App.1985). In determining whether egregious harm occurred, the error should be viewed in light of the entire jury charge, the state of the evidence (including contested issues and weight of probative evidence), the argument of counsel, and any other relevant information revealed by the record. Almanza, 686 S.W.2d at 171. The application paragraph states, in relevant part: Now, if you find and believe from the evidence beyond a reasonable doubt, that on or about the 20th day of March, 1988, in Hidalgo County, Texas, the Defendant, RUBEN FRANCISCO DEDESMA, JR., while in the course of committing theft of property from SANTOS MAMOLEJO, [sic] the victim, and with intent to obtain and maintain control of said property threaten or place said victim in fear of imminent bodily injury and death, and defendant did then and there use and exhibit a deadly weapon, to wit: a firearm, then you will find the defendant, RUBEN FRANCISCO DEDESMA, JR., guilty of aggravated robbery as charged in the indictment. Paragraph I of the charge states, in relevant part: Our law provides that a person commits the offense of robbery if, in the course of committing theft, as that term is hereinafter defined, and with intent to obtain or maintain control of property of another he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death____ The charge, viewed as a whole, correctly spells out for the jury the culpable mental state which it had to find in order to convict appellant of aggravated robbery. Further, the issue at trial was the robber's identity. It was undisputed that a robbery had occurred and that the robber intentionally or knowingly threatened the victim. This error, if any, in the application paragraph concerned an uncontroverted issue. We hold that appellant was not denied a fair and impartial trial as a result of the trial court's failure to include the culpable mental state in the application paragraph. By points 1A and IB, appellant complains that the trial court erred in denying his motion for new trial. Appellant filed a motion for new trial on the basis of newly discovered evidence. Rule 30(b)(6) of the Texas Rules of Appellate Procedure provides that an accused is entitled to a new trial "[w]here new evidence favorable to the accused has been discovered since trial." A motion for new trial based on newly discovered evidence is addressed to the trial court's sound discretion, and the court's decision should not be disturbed on appeal absent a showing of clear abuse of discretion. Eddlemon v. State, 591 S.W.2d 847, 850 (Tex.Crim.App.1979); Raetzsch v. 934 State, 745 S.W.2d 520, 522 (Tex.App.Corpus Christi 1988, pet. refd). The credibility of witnesses and the probable truth of the new evidence are matters for the trial court's determination. Todd v. State, 601 S.W.2d 718, 721 (Tex.Crim.App.1980); Holland v. State, 729 S.W.2d 366, 371 (Tex. App.Beaumont 1987, no pet.). In ruling on the motion, the trial court may consider the evidence adduced at trial, affidavits, and the testimony at the hearing on the motion for new trial. Williams v. State, 375 S.W.2d 449, 451 (Tex.Crim.App.1964); Turner v. State, 721 S.W.2d 909, 911 (Tex. App.Houston [1st Dist.] 1986, pet. refd). Motions for new trial based on newly discovered or newly available evidence are not favored and are viewed with great caution. Drew, 743 S.W.2d at 225; Pinkston v. State, 744 S.W.2d 329, 335 (Tex.App. Houston [1st Dist] 1988, no pet.). To show that the trial court abused its discretion, the record must indicate that: 1) the newly discovered evidence was unknown to the movant at the time of his trial; 2) the movant's failure to discover the evidence was not due to his want of diligence; 3) the materiality of the evidence is such as would probably bring about a different result in another trial; and 4) the evidence is admissible, and not merely cumulative, corroborative, collateral or impeaching. Drew, 743 S.W.2d at 226; Sawyer v. State, 778 S.W.2d 541, 545 (Tex.App. Corpus Christi 1989, pet. refd). Nevertheless, should it appear to the trial court that under the circumstances the credibility or weight of the new evidence would probably not bring about a different result upon a new trial, it is within its discretion to deny the motion. Jones v. State, 711 S.W.2d 35, 36-37 (Tex.Crim.App.1986). At the hearing, Michael Suarez testified that on March 20, 1988, between 9:30 and 10:00, he was inside Santos Marmalejo's store. Two other men were also inside. When Suarez left the store, he saw the two men run out and leave in a car. The police arrived, and Suarez told them that he did not know the two men. Officer Segura testified that he contacted Suarez one or two weeks after the alleged robbery. According to Segura, Suarez told him that appellant was one of the men running out of the store. Suarez denied telling Segura that appellant was one of the men leaving the store. At trial, Marmalejo identified appellant as one of the perpetrators. Soon after the alleged robbery, he identified appellant in a photo spread. We hold that the new evidence, being of questionable weight and credibility, would probably not bring about a different result upon a new trial. Under these circumstances, we conclude that the trial court did not abuse its discretion in denying appellant's motion for new trial. By points 2A and 2B, appellant complains that the trial court erred in denying his motion for new trial because "the newly available evidence tended to show" that the State hindered Michael Suarez' appearance at trial and his exculpatory testimony. Appellant did not raise these complaints in his motion for new trial. Rule 30(b)(5), however, provides that an accused is entitled to a new trial (emphasis ours) "[w]here any material witness of the defendant has by force, threats or fraud been prevented from attending the court, or where any evidence tending to establish the innocence of the accused has been intentionally destroyed or withheld preventing its production at trial." Appellant did not present any evidence at the hearing to show that the State by force, threats or fraud prevented Suarez from appearing at trial. Further, appellant did not present any evidence to show that the State intentionally destroyed or withheld any evidence tending to establish his innocence. We hold that the trial court did not abuse its discretion in denying appellant's motion for new trial. By points 4A, 4B and 4C, appellant complains of ineffective assistance of trial counsel. The proper standard by which we gauge the adequacy of counsel's representation at the guilt-innocence stage was stated 935 in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted in Texas in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). The Strickland test requires a twopronged analysis: (1) did the attorney's performance fail to constitute "reasonably effective assistance," that is, did the defense attorney's representation fall below an objective standard of reasonableness under prevailing professional norms, and (2) if so, was there a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. The United States Supreme Court defined a "reasonable probability" as "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Tejerina v. State, 786 S.W.2d 508, 514 (Tex.App.Corpus Christi 1990, pet. ref'd). Appellant complains that trial counsel did not produce Michael Suarez; did not file a written motion for continuance on the day trial commenced; or timely file the motion for new trial. Appellant, however, does not show from the totality of the evidence that a reasonable probability existed that, but for trial counsel's alleged errors, the trial's result would have been different. The Court of Criminal Appeals held that the second prong of Strickland is not applicable to the punishment stage of a trial in Ex parte Cruz, 739 S.W.2d 53, 59 n. 1 (Tex.Crim.App.1987). The court declared that the standard stated in Ex parte Duffy, 607 S.W.2d 507 (Tex.Crim.App.1980) would be the standard on which the effectiveness of counsel would be judged. This is, "the sufficiency of an attorney's assistance is gauged by the totality of the representation of the accused." Ex parte Cruz, 739 S.W.2d at 58. When reviewing the trial counsel's representation under Duffy, an appellate court must examine the "totality of the representation," which includes the pretrial representation of the accused, the guilt-innocence stage of the trial and the punishment stage of the trial. Ex parte Walker, 111 S.W.2d 427, 431 (Tex.Crim. App.1989). After reviewing the record as a whole, we conclude that trial counsel's representation of appellant, as it impacted the trial's punishment phase, was "reasonably effective." The judgment of the trial court is AFIRMED. NOTES [1] In Delaware v. Fensterer, the defendant was convicted in part on the testimony of the State's expert witness, who could not recall which test he had used to form his opinion. Although this inability to recall frustrated defense counsel's efforts to discredit the testimony, the Court held that there had been no Sixth Amendment violation. The Court found that the right of confrontation was not implicated, "for the trial court did not limit the scope or nature of defense counsel's cross-examination in any way." Fensterer, 474 U.S. at 19, 106 S.Ct. at 294.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519313/	232 S.W.2d 742 (1950) SOUTHERN TRAFFIC BUREAU v. THOMPSON. THOMPSON v. SOUTHERN TRAFFIC BUREAU. No. 12109. Court of Civil Appeals of Texas, San Antonio. June 21, 1950. Rehearing Denied August 30, 1950. 743 Fischer, Wood, Burney & Glass, Corpus Christi, Smith & Oakleaf, McAllen, John C. North, Jr., Corpus Christi, L. Hamilton Lowe, Austin, for appellant. Strickland, Wilkins, Hall & Mills, Mission, for appellee. NORVELL, Justice. This suit involves the legality and validity of a method of operation adopted by Southern Traffic Bureau in presenting and prosecuting claims against rail carriers. A cross appeal is involved, but for convenience we will refer to Southern Traffic Bureau as the appellant and Guy A. Thompson as appellee. Thompson is the trustee for a group of railroads known as the Missouri Pacific Lines, appointed in accordance with Section 77 of the Bankruptcy 744 Act, 11 U.S.C.A. § 205. He filed this suit in behalf of certain carriers and later intervened on behalf of others. The distinction between plaintiffs and interveners is not pertinent here. The Texas and New Orleans Railroad Company also intervened, but its asserted cause of action was severed from the present suit and it is not a party to this appeal. The Southern Traffic Bureau, defendant below, is a partnership composed of W. M. White, W. M. White, Jr., and other members of the White family, and is engaged in the business of preparing and presenting claims against rail carriers arising out of delays in transit, breakage of containers, failure to carry out shipping instructions and similar matters relating to the shipment of fruit and vegetables. The appellee contended that the bureau's operations are violative of the law against barratry, Article 430, Vernon's Ann.Penal Code, and that it unlawfully engages in the practice of law. Trial below was to the court without a jury. Upon request findings of fact and conclusions of law were prepared and filed. The judgment in the main was favorable to appellee. A perpetual injunction was granted, restraining the bureau from soliciting claims against appellee and from doing other specified acts set out in seven numbered paragraphs of the decree. The court also granted further relief by way of a declaratory judgment. Article 25241, Vernon's Ann.Civ.Stats. This portion of the judgment consists of eleven paragraphs lettered a to k, inclusive. Appellant submits 64 points of error and the appellee presents two cross-points. It is obviously impossible to discuss all of these points seriatim and keep this opinion within reasonable bounds. We believe, however, that the issues of the case naturally divide themselves into certain grand divisions which may be expeditiously discussed and disposed of. The injunctive portion of the decree provided that, "Southern Traffic Bureau and W. M. White, Sr., W. M. White, Jr., Cecil White, Bernice White and Jack White, their agents, servants and employees be, and they are hereby perpetually enjoined: "(1) From in any manner soliciting employment to present, prosecute, settle, collect, adjust or compromise any claim or claims (other than freight rate claims) against Plaintiff or Intervener in which they have no interest, for their own profit, and from procuring others to solicit such employment for them. "(2) From examining the files or records of any person, firm, association or corporation for the purpose of ascertaining or determining whether such files or records disclose a claim (other than freight rate claims) against Plaintiff or Intervener which is cognizable at law. "(3) From advising any person, firm, association or corporation that they have a claim (other than freight rate claims) against Plaintiff or Intervener or such a claim which the Courts will enforce. "(4) From filing any claim (other than freight rate claims) against Plaintiff or Intervener, on behalf of any other person, firm, association or corporation, either in Court or with Plaintiff or Intervener or any servant, agent, employee or other representative of Plaintiff or Intervener. "(5) From representing any other person, firm, association or corporation in the prosecution of a claim (other than freight rate claims) against plaintiff or Intervener and from representing any other person, firm, association or corporation in any effort or attempt to collect any claim (other than freight rate claims) from Plaintiff or Intervener, or attempting to settle, adjust or compromise any such claim. "(6) From advising any person, firm, association or corporation asserting a claim against Plaintiff or Intervener as to whether the same should be settled, adjusted or compromised and from advising such claimant whether a suit should be filed in Court on such claim if it be rejected by Plaintiff or Intervener or not compromised, adjusted or settled by them. "(7) From threatening, on behalf of any other persons, firm, association or corporation, to file suit against Plaintiff or Intervener, in the event any claim filed by or on behalf of such person, firm, association 745 or corporation is not paid, adjusted settled or compromised." The obvious basis of the first numbered paragraph of the injunctive portion of the decree is the barratry statute, Art. 430, P. C., which in part provides that: "Whoever shall, for his own profit or with the intent to distress or harass the defendant therein, wilfully instigate, maintain, excite, prosecute or encourage the bringing, in any court of this State, of a suit at law or equity in which he has no interest; * * or shall willfully instigate, maintain, excite, prosecute or encourage the bringing or prosecution of any claim in which he has no interest, for his own profit or with the intent to distress or harass the person against whom such claim is brought or prosecuted; or shall seek to obtain employment in any claim to prosecute, defend or collect the same by means of personal solicitation of such employment, or by procuring another to solicit for him employment in such claim; * * * shall be fined not to exceed five hundred dollars, and may in addition thereto be imprisoned in jail not exceeding three months. The penalties herein prescribed shall apply not only to attorney at law, but to any other person who may be guilty of any of the things set forth in this article. * * " In the case of McCloskey v. San Antonio Public Service Co., Tex.Civ.App., 51 S.W.2d 1088, this Court held that when the property rights of an individual or corporation were threatened by the solicitation and prosecution of claims against it in contravention of the barratry law, an injunction would lie to restrain such action. It was held that while, as a general rule, an injunction does not lie to restrain the violation of a penal statute, there is a well recognized exception to the rule. Whenever the commission of acts denounced as wrongful by the penal code result in the invasion of the property rights of another, the injured person may protect himself by injunction. See also, Ex parte Hughes, 133 Tex. 505, 129 S.W.2d 270; Ex parte Allison, 48 Tex. Crim. 634, 90 S.W. 492, 13 Ann.Cas. 684, 3 L.R.A.,N.S., 622; Ramon v. Saenz, Tex.Civ.App., 122 S.W. 928; Featherstone v. Independent Service Station Ass'n of Texas, Tex.Civ. App., 10 S.W.2d 124. The holding in the McCloskey case was approved by the Supreme Court, as evidenced by its outright refusal of a writ of error. The trial court in effect found that appellant had in the past and would in the future, unless restrained, solicit claims against the appellee. These findings fully support the first paragraph of the restraining portion of the decree above quoted. Appellant however asserts that these findings are not supported by the evidence. There was direct evidence of the solicitation of business. Letters written upon the letterhead of Southern Traffic Bureau were introduced in evidence in which persons were advised that the firm was in business, had a good record for settling "big claims," and would make a railroad carrier "pay one way or another." It was shown that the appellant had placed advertisements seeking business in trade magazines and publications. Under the Texas authorities it can not be seriously urged that no violation of the barratry law had taken place. At one time the barratry law was applicable only to attorneys at law. This defect was pointed out by this Court in McCloskey v. San Antonio Traction Co., 192 S.W. 1116, and remedied by the Legislature. McCloskey v. San Antonio Public Service Company, Tex.Civ.App., 51 S.W.2d 1088. In Pelton v. McClaren Rubber Co., Tex. Civ.App., 120 S.W.2d 516, 517, wr. ref., Mr. Justice Alexander (later Chief Justice of the Supreme Court) made the following clear and unequivocal statement in regard to the barratry statute: "By the plain provisions of the above statute (Art. 430 P.C.) it is made illegal for anyone, be he either lawyer or layman, to seek by personal solicitation to obtain employment to collect a claim. McCloskey v. Tobin, 252 U.S. 107, 40 S. Ct. 306, 64 L. Ed. 481." As to injury to appellee, we are also of the opinion that the evidence was sufficient to raise an issue for the trial court's determination. There was testimony to the effect that appellant had presented claims 746 to the carriers which had no factual basis for liability and others for excessive amounts. In the recent case of Thompson v. Larry Lightner, Inc., 230 S.W.2d 831, decided by this Court on May 3, 1950, we held that Thompson as trustee for a number of rail carriers was not entitled to an injunction against a claims agency as the trial court found (and the finding was not challenged on appeal) that the property rights of Thompson as trustee had not been invaded nor had be suffered any pecuniary loss or injury because of any acts of the claims agency. Appellant in effect argues that even though solicitation be shown, no invasion of appellee's property rights is disclosed, unless it further appears that as a result of such solicitation a particular claim against a carrier was secured and that said claim had no sound basis in law or in fact or was for an excessive amount. In our opinion this particularity of proof was not required. Appellant's unlawful solicitations were designed to secure claims. We may safely infer that the intended result was accomplished. Under the evidence the trial court was authorized to find that appellee's property rights were adversely affected by illegal actions on the part of appellant. In our opinion the first paragraph of the injunctive decree should be sustained. We are not in full accord with the trial court's analysis of the bureau's operations and this difference will be discussed in the latter part of this opinion. We may say here that it seems to us that the first paragraph of the injunctive portion of the decree relates to the restraining of acts denounced as wrongful by the barratry statute. Closely connected with the solicitation of claims are such acts as instigating others to file lawsuits against appellee and threatening the instigation of such suits. Such actions are barratrous in nature and the paragraph of the decree now under discussion will be modified so as to include an order restraining such actions. The presence of the exception relating to freight rate claims in the paragraph of the decree above quoted evidently arises from the fact that no injunction was sought against appellant insofar as this particular species of claim is concerned. Appellee, in his brief filed in support of his cross-points, says that he is not complaining of the trial court's action in excluding freight rate claims from the decree's restraining provisions. We make this explanation so that a holding will not be implied from our approval of the paragraph discussed that solicitation of freight rate claims is permitted by the barratry statute. Such claims are not involved in this suit. In order to properly discuss the injunctive orders contained in numbered paragraphs 2 to 7, inclusive, above set out, it is necessary to consider in some detail the method of operating or doing business adopted by the appellant and participated in to some extent by the carriers. It appears that W. M. White has been in the business of presenting and adjusting claims against rail carriers arising out of fruit and vegetable shipments for a period of over twenty years. He first began operations in Potect, Texas and organized the Southern Traffic Bureau as a family affair. A few years ago he moved the principal office of the bureau to Harlingen, Texas, which is located near the center of the fruit and vegetable growing areas of the Lower Rio Grande Valley. W. M. White and his son, W. M., Jr., are the active negotiators of settlements and no one connected with the bureau is a licensed attorney at law. In addition to claims originating from shipments from the Lower Rio Grande Valley, the bureau also handles claims arising from shipments from the Laredo Winter Garden, Coastal Bend and East Texas fruit and vegetable growing districts. The bureau is now serving some fifty shippers regularly, and as compensation it generally receives twenty-five per cent of the recovery against the carrier. The first step in the established course of operations is the examination of the shipper's files by a representative of the bureau. Certain of these files are selected by the shipper and sent to the bureau for examination, or a representative of the bureau calls at the place of business of the 747 shipper and goes over the files for the purpose of ascertaining whether or not a probable claim exists. Each file relates to a separate car and usually contains the bill of lading, the manifest showing what was loaded into the car, inspection certificates, diversion orders, shipping instructions and protests, if any, an account of the sales of the contents of the car, and such other papers or documents as may relate to the shipment. Claims for fruit and vegetable shipments generally fall into three categories, i. e., those arising from delays in transit; those arising from a failure to carry out shipping instructions, such as failure to comply with refrigeration and ventilating orders and the like, and those arising from rough handling of the shipment, such as breakage of containers, bruising of the contents and similar damage. The "protest" is a document or paper delivered to the carrier after inspection by the consignee showing the condition of the contents of a car so as to give the carrier an opportunity to also make an inspection of its contents. From the evidence, it is indicated that in addition to the information usually contained in the file it is necessary for an examiner to have a detailed knowledge of train schedules, and sales prices and opening hours of various markets throughout the United States, in order to ascertain whether or not a probable claim for damage exists. If, upon examination of the shipper's file, probable liability on the part of the carrier is indicated, a "claim" is filed with the carrier under the provisions of Section 2b of the bill of lading. The nature of this "claim" will be hereinafter discussed. It is sufficient to say here that it may be either a simple notice or a detailed document. It may contain sufficient information so that the carrier may check its records, acknowledge liability for a certain sum and return a check for that amount. If the claim is not settled in this manner or by means of a comparatively small amount of correspondence, it is subjected to a process known as "conferencing." A representative of the bureau and a representative of the carrier, neither of them lawyers, meet and go over their respective files together. It appears that the American Railway Association, in order to obtain uniformity of practice in the settlement of freight claims by carriers, had adopted an elaborate set of rules for the guidance of railway freight claim agents. These rules are known as "Principles and Practices for the Investigation and Disposition of Freight Claims." Said rules are based partly upon the applicable law relating to such claims and partly upon expediency. They are designed for the expeditious and uniform handling of claims. The representatives of the appellant bureau are thoroughly familiar with these "Principles and Practices" and claims are "conferenced" in accordance therewith. As a result of the conference, the freight claim agent of the carrier may agree to pay the claim, deny all liability or offer to settle the claim for a certain amount. The representative of the bureau likewise makes offers of settlement. It appears that in some cases he may accept offers of settlement without further consultation with the shipper whom he represents. In others he may refer the offer of settlement back to the shipper. If the claim is declined by the carrier's representative, it is returned to the shipper, sometimes with the bureau's recommendation that suit be filed thereon. In the event suit is instituted, the representatives of the bureau are often used by the shipper as expert witnesses. It is indicated that there are other organizations similar to appellant, engaged in presenting like claims against carriers. It is not shown that members of the legal profession have undertaken the handling of such claims from the examination of the shipper's files to final conclusion. With the exceptions noted, numbered paragraphs 2 to 7, inclusive, of the injunctive portion of the decree relate to the assertion that the bureau is unlawfully practicing law. The trial court's view of the actions of the bureau is, we believe, accurately stated in appellee's brief, as follows: "Everything appellants did was but a part of a single transaction conceived and carried out by appellants for the sole 748 purpose of soliciting employment to ferret out alleged claims against appellee and in a representative capacity to prosecute, collect, compromise, settle and adjust the same for their clients in their own interest and for their own profit for a contingent fee of 25% of the amount collected by voluntary payment, compromise or adjustment or by suit." We are unable to agree with this view. Obviously many of the services performed by the bureau come within the legitimate scope of the activities of a lay investigator. The ascertaining of the facts relating to the movements of a particular freight car does not constitute the practice of law. A layman may properly determine whether or not vegetable containers were found broken upon the arrival of a freight car at its destination; the condition of fruit or vegetables loaded into a refrigerator car, or whether or not shipping instructions as to icing and ventilation were complied with. By a comparison of the record of the actual movement of a particular car with train schedules, he may properly determine if in fact a car has been moved to destination in an expeditious manner, and he may properly investigate and ascertain the prices paid at a certain market for a particular period. When the process of handling claims adopted by the bureau and to a certain extent acquiesced in by the carrier, is properly analyzed it seem that the two things which properly constitute the practice of law are the securing of agreements from the shippers which confer upon the bureau a discretion to settle claims, and the action of the bureau in accepting compromise offers of settlement on behalf of the shippers represented by it. Under our view of the case it is not essential to go further than to say that the above mentioned actions probably constitute the practice of law, but it may be well to point out that the repeal of Article 430a, Vernon's Ann.Penal Code, did not deprive the judicial department of government of the power to define the practice of law. This fact is expressly recognized by the provisions of the Act repealing said article wherein it is recited that, "under the Constitution, the judicial department of the State government has power to define the practice of law", Act 1949, 51st Leg. ch. 301, p. 548. The leading case in Texas involving the unlawful practice of law is, Hexter Title & Abstract Co. v. Grievance Committee, 142 Tex. 506, 179 S.W.2d 946, 157 A.L.R. 268. Other authorities on the point particularly relating to the collection of claims are: Berk v. State ex rel. Thompson, 225 Ala. 324, 142 So. 832, 84 A.L.R. 740; Fitchette v. Taylor, 191 Minn. 582, 254 N.W. 910, 94 A.L.R. 356; People ex rel. Chicago Bar Ass'n v. Goodman, 366 Ill. 346, 8 N.E.2d 941, 111 A.L.R. 1; Liberty Mutual Ins. Co. v. Jones, 344 Mo. 932, 130 S.W.2d 945, 125 A.L.R. 1149; Wilkey v. State ex rel. Smith, 244 Ala. 568, 14 So. 2d 536, 151 A.L.R. 765; In re Lyon, 301 Mass. 30, 16 N.E.2d 74; Meunier v. Bernich, La.App., 170 So. 567; Public Service Traffic Bureau v. Haworth Marble Co., 40 Ohio App. 255, 178 N.E. 703; Boykin, Solicitor General v. Hopkins, 174 Ga. 511, 162 S.E. 796, 799; Clark v. Austin, 340 Mo. 467, 472, 101 S.W.2d 977, 982. We do not regard the filing of notice of claim under the provisions of Section 2b of a Uniform Straight Bill of Lading as constituting the practice of law. This notice of claim may be filed by any authorized agent of the shipper. Said section 2b, insofar as material here, provides that: "As a condition precedent to recovery, claims must be filed in writing with the receiving or delivering carrier, or carrier issuing this bill of lading, or carrier on whose line the loss, damage, injury or delay occurred, within nine months after delivery of the property. * * * Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not be paid." The above quoted portion of the bill of lading is inserted for the benefit of the carrier. Its purpose is "to give the carrier opportunity to investigate or inquire" as to the movements or condition of a certain shipment "while the facts 749 bearing on the justice of the claim are readily available.' 13 C.J.S., Carriers, § 235, page 463. "As regards the sufficiency of the notice of a claim, or of a claim, for loss of, or injuries to, property shipped, the stipulation requiring such notice or claim is given a reasonable construction, and it is very generally held or recognized that no particular form of notice or of claim is necessary, that neither formality nor technical exactness is necessary, and that a substantial compliance with the stipulation is all that is required. It `is addressed to a practical exigency and it is to be construed in a practical way.' (Quoting from Georgia, Florida and Alabama Railroad Company v. Blish Milling Co., 241 U.S. 190, 36 S. Ct. 541, 60 L. Ed. 948.) In the absence of any requirement therefor in the stipulation, a claim need not set forth all particulars and it is not insufficient merely because there is no formal demand for money damages nor because it does not set forth the damages claimed." 13 C.J.S., Carriers, § 239, page 480. It is not necessary that an attorney at law be employed to file a claim or notice complying with Section 2b of the bill of lading. Lawyers are not like the river barons of the middle ages who exacted tribute from commerce because of their strategic location of the arteries of trade. The rule limiting the practice of law to trained and qualified persons is founded upon the principle of public benefit and protection. The rule however does not go beyond the principle upon which it is based and should not be extended beyond the requirements of the common good. We may at this point accept the premise that the bureau's action in securing agreements from shippers authorizing it to settle claims and its action in accepting compromise offers constitute the practice of law. The question then arises as to the right of appellee to enjoin such practices. As heretofore pointed out, appellee's right to injunction is based upon an invasion of its property rights. It is axiomatic that one is not entitled to an injunction to restrain actions which he may prevent by acting for himself. While we do not go so far as to say that one in the position of the appellee here could not secure an injunction enjoining acts constituting the unlawful practice of law as distinguished from barratrous actions, it should be pointed out that the appellee occupies a different position with reference to the question of the unlawful practice of law than does a committee of the State Bar Association. Thompson v. Larry Lightner, Inc., Tex.Civ.App., 230 S.W.2d 831. It was pointed out in Hexter Title & Abstract Co. v. Grievance Committee, 142 Tex. 506, 179 S.W.2d 946, 157 A.L.R. 268, that the Act creating the State Bar, Acts 1939, 46th Leg., p. 46, Art. 320a1, Vernon's Ann.Civ.Stats., constituted that organization an adminstriative agency of the Judicial Department of the State and prohibited persons not members of the State Bar from practicing law. This Act declared the public policy of the State, and by appropriate rules the Supreme Court provided for the enforcement of this public policy through committees of the State Bar, which were empowered to act for and on behalf of the public and for its protection. The right of the appellee, on the other hand, is limited to a vindication of property rights peculiar to him. Considering this restriction upon his demand for injunctive relief, we are of the opinion that appellee was not entitled to an injunction relating to appellant's method of setting claims. We do not base this holding upon the theory that as the appellee utilized the services of lay adjusters, the shippers should be permitted to do likewise. On this point, see Liberty Mutual Ins. Co. v. Jones, 344 Mo. 932, 130 S.W.2d 945, 125 A.L.R. 1149. But it is undisputed that appellee's agents entered into negotiations with representatives of appellant; that they "conferenced" claims in accordance with the carrier adopted rules known as "Principles and Practices," and that they made offers of payment and agreed upon terms of settlement in these conferences. The appellee, consequently, is in no position to say that the bureau should be restrained from accepting the offers made by his agents 750 in these conferences. His agents made or accepted these offers and paid off accordingly. In effect, appellee is requesting a court to take an action which he could have taken himself. Accordingly, appellee is not entitled to injunctive relief in the particular discussed. We realize that this conclusion limiting appellee's injunctive relief stems from the difference between our concept of the case and that held by the trial court. As above pointed out, the trial court considered appellant's actions as essentially constituting a unit. We regard the various actions taken by appellant in conducting its business as being divisible. In our opinion an injunction should not issue to restrain those actions which are legal, or those actions concerning which the appellee is in no position to complain. What has been said disposes of all issues of this case save those relating to the declaratory judgment portion of the decree. Appellant insists that this part of the judgment is erroneous for a number of reasons and should therefore be set aside. Appellant also asserts that another form of declaratory judgment should be rendered so that appellant can "have its rights defined and settled by a declaration of court." By cross-appeal appellee likewise attacks the declaratory part of the judgment in certain particulars. Despite the seeming desire of both parties for the rendition of a declaratory judgment, we have come to the conclusion that this is not a proper case for the rendition of a decree under the Uniform Declaratory Judgments Act, Article 25241, Vernon's Ann.Civ.Stats. Appellant's points attacking this portion of the decree must be sustained. According to the evidence, appellant has been operating its claims business in substantially the same way for a number of years. Any cause of action appellee may have by reason of appellant's methods of operation has fully accrued. In Anderson on Declaratory Judgments, p. 192, § 69, it is said that: "If a common-law cause of action has already matured, and the customary processes of the law are open and available, and they are ample and adequate, unhampered and not complicated, they should generally be adopted rather than an application for a declaration of rights. That is to say, where a cause of action has already accrued that is justiciable, in a well-recognized and traditional form of action, declaratory relief will not be granted as a rule." In Bagwell v. Woodward Iron Co., 236 Ala. 668, 184 So. 692, 693, the Court said: "If adequate relief, and an appropriate remedy, are presently available to the complaining party through the means of other existing forms of action or proceeding, jurisdiction for a declaratory judgment will not ordinarily be entertained. If such relief is presently available, parties will be left to their appropriate actions provided by law rather than permit a resort to the declaratory judgment proceeding. Union Trust Co. of Rochester v. Main & South Streets Holding Corporation, 245 A.D. 369, 282 N.Y.S. 428; Post v. Metropolitan Casualty Ins. Co. of New York, 227 A.D. 156, 237 N.Y.S. 64, affirmed, 254 N.Y. 541, 173 N.E. 857; Sheldon v. Powell, 99 Fla. 782, 128 So. 258; Oldham County v. Arvin, 244 Ky. 551, 51 S.W.2d 657; Stewart v. Herten, 125 Neb. 210, 249 N.W. 552; Reynolds v. Chase, 87 N.H. 227, 177 A. 291; Di Fabio v. Southard, 106 N.J.Eq. 157, 150 A. 248; James v. Alderton Dock Yards, 256 N.Y. 298, 176 N.E. 401; Merman v. St. Mary's Greek Catholic Church of Nesquehoning, 317 Pa. 33, 176 A. 450; Board of Sup'rs of Amherst County v. Combs, 160 Va. 487, 169 S.E. 589." In Fritz v. Superior Court, 18 Cal. App. 2d 232, 63 P.2d 872, 873, hearing denied by the Supreme Court, it was said that "Though the existence of an available remedy in the ordinary action at law or in equity does not necessarily bar the right to proceed under these sections of the Code (Wollenberg v. Tonningsen, 8 Cal. App. 2d 722, 726, 48 P.2d 738), nevertheless, the character of the action must be determined from an examination of the facts pleaded, rather than from the title or prayer for relief, and when, upon such examination, it appears that the cause of action has 751 already accrued and the only question for determination is the liability or relief for or to which the respective parties are charged, "the nature of the action is not a cause for declaratory relief, but is defined by the subject-matter of the accrued cause of action.' Standard Brands of California v. Bryce, 1 Cal. 2d 718, 721, 37 P.2d 446, 447. "Applying this principle to the case at hand, we find a cause of action accrued before this suit was fileda cause to determine the validity of an election of corporate officersand this is a cause for which an adequate and available remedy is expressly provided by law. Hence, though the prayer asks for declaratory relief, the facts pleaded show affirmatively that it is not a case for declaratory relief but one coming directly under section 315 of the Civil Code." The Uniform Declaratory Judgments Act does not provide for the giving of merely advisory opinions on the part of courts. In government this is a duty of the executive branch. In private business it is the function of the legal profession. City and County of Denver v. Lynch, 92 Colo. 102, 18 P.2d 907, 86 A.L.R. 907. It is further a well established rule that a declaratory judgment should not be based upon facts which are particularly subject to mutation and change as are the facts here. Anderson on Declaratory Judgments, p. 195, § 72. While this case has been well and thoroughly briefed by both sides in this Court, and the record of the trial court below indicates careful consideration of the issues involved, the fact that an agency of the State Bar was not a party below is a matter which may be properly considered in determining whether or not a declaratory judgment relating to the practice of law should be rendered. Article 25241, § 6; Thompson v. Larry Lightner, Inc., Tex.Civ.App., 230 S.W.2d 831. For the reasons above stated, the judgment of the district court will be reformed so as to combine parts of paragraphs 6 and 7 of the injunctive portion of the decree with paragraph 1 thereof so as to provide that: Southern Traffic Bureau and W. M. White, Sr., W. M. White, Jr., Cecil White, Bernice White and Jack White, their agents, servants and employees be, and they are hereby perpetually enjoined from in any manner soliciting employment to present, prosecute, settle, collect, adjust or compromise any claim or claims (other than freight rate claims) against Plaintiff or Intervener (appellee) in which they have no interest, for their own profit, and from procuring others to solicit such employment for them. Said parties are also enjoined from instigating and advising others to file lawsuits against Plaintiff or Intervener (appellee), and from threatening to do so. The remainder of the injunctive portion of the decree is vacated, as is the portion of the decree (paragraphs lettered a to k, inclusive,) purporting to declare the rights of the parties in accordance with the provisions of the Uniform Declaratory Judgments Act. Article 25241, Vernon's Ann.Civ.Stats. The decree as so reformed will be affirmed. Costs of appeal are adjudged one-half against appellant and one-half against appellee. Reformed and affirmed. On Motion for Rehearing. By assignment of error numbered "LVI" appellee contends, in effect, that the second sentence of the injunctive decree as modified by this Court should be amended so as to read as follows: "Said parties are also enjoined from instigating and advising others to file claims and lawsuits against Plaintiff or Intervener (appellee), and from threatening to do so." We are of the opinion that the instigation of the filing of claims is violative of the barratry statute. McCloskey v. San Antonio Public Service Co., Tex.Civ.App., 51 S.W.2d 1088. Particularly is this true when one party uses the threat of the filing of numerous claims against another party in an attempt to force a settlement of a certain specific claim at issue. The injunction 752 should, however, not be limited to the particular example given. The provisions of Article 430, Vernon's Ann.Pen. Code are much broader and expressly proscribe the instigation or encouragement of "the bringing or prosecution of any claim in which (a party) has no interest". Appellee's point numbered "LVI" is sustained and our judgment will be modified accordingly. Appellee, by a number of assignments, complains of our holding that he is not in a position to demand that appellant bureau be restrained from compromising claims which have been asserted against him. Particular objection is made to our statement in the original opinion that, "In effect, appellee is requesting a court [of equity] to take an action which he could have taken himself." R. R. Maloan, Traveling Freight Claim Adjuster for the Missouri Pacific Lines, testified that he had been working for said railroads since 1926 as an investigator and adjuster of freight claims; that the "Principles and Practices" were put out by the Claims Division of the Association of American Railways in an effort to secure a universal claim payment policy for all rail lines; that he does not make any payment arising from conferences with claimants or their representatives unless the claim is in conformity with "Principles and Practices," and that regardless of what the law may be he is governed by said "Principles and Practices." As to the way in which a "conference" is conducted, Maloan testified as follows: "Well, I go to (the bureau's) office with a number of claims, * * * I usually have them lined up in numerical order insofar as our claim numbers are concerned. I give (the bureau's representative) the record of movement, together with the schedule applicable and depending on the type of service, protective service under which the shipment is moving, giving him that record. If there is delay we figure market decline, if any, and if there is any difference, then we determine the loss based on the market value on date due as against what was realized, and if there is delay located with the claimant, then amount is prorated. If there is a protective service defect, that then is prorated depending upon the seriousness of it, and that deducted from the total loss, and then the total loss prorated as to delay. Of course, that is figured on the average with the good order packages in the car, and every dollar received in salvage by the receiver, the amount of salvage received less the handling charges, and that payment as a general rule is 100 per cent. Sometimes my offer is accepted and sometimes it is not." We believe the testimony of appellee's freight claim adjuster fully supports our statement of the record set forth in the original opinion. Upon analysis it will be found that for the most part appellee's complaints, including the one now under discussion, are not directed to the separate details of the operating processes of the bureau, but rather to its being operated at all. We differ with appellee in that we hold that the injunction should be restricted to the illegal items or details of the bureau's method of operation, and to those about which the appellee is in a position to complain. In our opinion, appellee has cited no authority which would justify the extension of the injunction beyond the scope prescribed by this Court in its original opinion as modified in the particular herein-above set out. The trial court refused to hold that the members of the appellant bureau could not testify in lawsuits filed against appellee. Appellant complained of this ruling by cross point. Our failure to sustain said point is assigned as error upon rehearing. Appellee argues that as the members of the bureau receive a certain percentage of any recovery obtained by reason of their contract with the plaintiff shippers, they should be disqualified from testifying. This point was overruled for the reason that in the absence of special circumstances not disclosed by the present record, a court will not attempt to determine the admissibility of evidence which may be offered upon the trial of a lawsuit which subsequently may be filed. Anderson, Declaratory Judgments, p. 148, § 53. *753 Appellee's motion for rehearing is granted in part, as above indicated. In all other particulars it is overruled. Appellant's motion for rehearing has also been considered and is overruled.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519339/	100 N.J. Super. 515 (1968) 242 A.2d 663 DONALD ETTIN, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, v. AVA TRUCK LEASING, INC., DEFENDANT-APPELLANT AND CROSS-RESPONDENT. DONALD ETTIN, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, v. SWEETS CO. OF AMERICA, INC., DEFENDANT-RESPONDENT AND CROSS-APPELLANT. Superior Court of New Jersey, Appellate Division. Argued January 22, 1968. Decided May 3, 1968. 519 Before Judges SULLIVAN, FOLEY and LEONARD. Mr. Gerald Conway argued the cause for Defendant-Appellant and Cross-Respondent, Ava Truck Leasing, Inc. (Messrs. Schreiber & Lancaster, attorneys). Mr. William V. Roveto argued the cause for Defendant-Respondent and Cross-Appellant, Sweets Co. of America, Inc. (Messrs. Moser, Roveto & McGough, attorneys). Mr. Bernard Chazen argued the cause for Plaintiff-Respondent and Cross-Appellant (Messrs. Baker, Garber, Chazen & Duffy, attorneys; Mr. Nathan Baker, of Counsel). The opinion of the court was delivered by LEONARD, J.A.D. Involved herein are two separate personal injury motor vehicle accident cases which were instituted by plaintiff against separate defendants and consolidated for trial. On April 4, 1961, at or about 3:30 P.M., plaintiff, a salesman for Feldman Food Products, was operating a truck leased from defendant Ava Truck Leasing, Inc. (Ava) in a southerly direction on Park Avenue in Hoboken when he collided with a parked tractor-trailer from which merchandise was being delivered to the plant of defendant Sweets Co. of America, Inc. (Sweets). Plaintiff testified that immediately before the accident he had traversed the crest of the Park Avenue Bridge. As he was descending the bridge at or about 20 to 25 miles per hour, he allegedly noticed the tractor-trailer parked across the sidewalk fronting Sweets' warehouse. The tractor-trailer was blocking both lanes of southbound traffic on Park Avenue. 520 Plaintiff further testified that he attempted to apply his foot brake, but that the brake went down "flat against board." Purportedly, he then started pumping his brake, but "nothing resulted from that." Plaintiff stated that he attempted to shift into a lower gear, but was unable to do so. He asserted that he tried to apply his hand emergency brake, but could not slow his truck by such a procedure. Plaintiff related that he had noticed that several cars were stopped behind the parked tractor-trailer. These cars, according to plaintiff, could not go around the tractor-trailer because of heavy northbound traffic on Park Avenue. Plaintiff testified that he could not move his truck into the left lane because such a maneuver would have produced a head-on collision with an automobile in the northbound traffic. Had plaintiff proceeded straight, he allegedly would have hit the rear of one of the cars stopped on account of the trailer. This, according to plaintiff, would have set up a "chain reaction of several cars." Therefore, plaintiff chose to pull to the right into the slow lane and crash into the center of the side of the trailer. Originally, plaintiff instituted an action against Ava, Ventre Trucking Company (Ventre), Pan Atlantic Steamship Corporation (Pan Atlantic) and Kelly Mitchell (Mitchell). Ventre and Pan Atlantic allegedly had proprietary interests in the tractor-trailer. Mitchell was the operator of the parked vehicle at the time of the accident. Plaintiff dismissed his action against Pan Atlantic. The jury returned a verdict of $9000 in favor of plaintiff against Ava and verdicts of no cause of action in favor of defendants Ventre and Mitchell. However, the trial court granted Ava a new trial, a decision which we affirmed. Plaintiff has never appealed from the judgments in favor of defendants Ventre and Mitchell. Plaintiff also brought an independent action against Sweets, alleging that Sweets "directed and participated in the improper and illegal [negligent] parking" of the tractor-trailer 521 at its plant, and that Sweets, in so doing, created and maintained a public nuisance. The suit against Sweets was consolidated with the retrial of plaintiff's action against Ava. At the close of the trial of the consolidated actions, the jury returned a verdict for $17,000 in favor of plaintiff and against both Ava and Sweets. Both defendants moved before the trial court for judgments n.o.v. or, in the alternative, for a new trial. Ava at this time also moved to amend its answer to assert a cross-claim for contribution against Sweets. It had not previously asserted such a claim. The trial judge granted Sweets' motion for judgment n.o.v. on the ground of collateral estoppel but denied its motions for a new trial and judgment n.o.v. to the extent that they were based on the alleged failure of plaintiff to make out a prima facie case of negligence against Sweets and on purported trial errors. All of Ava's motions were denied. Ava appeals from the judgment of the trial court against it, and from the denial of its motions for a new trial, and from the denial of its motion for permission to amend its answer to assert a cross-claim against Sweets. Ava also appeals from the judgment n.o.v. entered in favor of Sweets and against plaintiff. Sweets, "in order to protect its rights and interests" in the event of a reversal of its judgment n.o.v., cross-appeals from the judgment rendered against it based upon the jury verdict for plaintiff and from the partial denial of its motions for judgment n.o.v. and for a new trial. Plaintiff, "for protective purposes", cross-appeals from the judgment n.o.v. entered in favor of Sweets. I We consider first Ava's appeal from the judgment in favor of plaintiff and from the trial court's denial of Ava's post-trial motions with respect thereto. Initially, Ava contends that the trial court erred in striking the issue of contributory negligence as a defense to 522 the breach of warranty claim against it, refusing to charge the jury on contributory negligence as a possible defense for Ava, and depriving Ava of the right to be heard on that defense in summation to the jury. Plaintiff's complaint and the pretrial order charged Ava with both negligence and breach of warranty. Ava in its answer and in the pretrial order asserted that plaintiff was guilty of contributory negligence. In the openings plaintiff made reference to both theories of liability against Ava, and the latter raised the issue of plaintiff's contributory negligence. However, after the close of the evidence and prior to summations and charge, plaintiff moved to abandon his negligence claim against Ava and stated that he would proceed against Ava solely upon the theory of breach of implied warranty. Upon the court's dismissal of the negligence count against Ava, plaintiff moved for a dismissal of Ava's contributory negligence defense. This motion was granted, the court being of the opinion that the only form of contributory negligence that could be a defense to a breach of warranty claim was that comparable to assumption of risk. The trial court erred in striking the defense of contributory negligence from plaintiff's breach of warranty action against Ava. See Maiorino v. Weco Products Co., 45 N.J. 570, 573-575 (1965). Contributory negligence in its broad sense is a defense to a strict liability claim. Maiorino, supra, at p. 574. See also Tanga v. Tanga, 94 N.J. Super. 5, 11 (App. Div. 1967). Therefore, the portion of the lower court's charge which specifically stated that contributory negligence was not a defense to plaintiff's action against Ava was erroneous. However, despite this we hold that Ava is not entitled to overturn the judgment below. Under the unique circumstances here present the affirmance of the judgment is not a denial of substantial justice to Ava. See R.R. 1:5-3 (b); R.R. 2:5. 523 The issue of plaintiff's contributory negligence was submitted to the jury in the consolidated action of plaintiff against Sweets, and an appropriate charge on behalf of Sweets was given regarding that defense. The jury, by rendering a verdict in favor of plaintiff and against Sweets, necessarily made a determination that plaintiff was not contributorily negligent. As previously noted, the contributory negligence defense was not stricken from Ava's answer until all the testimony had been adduced. Counsel for both Ava and Sweets each thoroughly cross-examined plaintiff as to his driving and as to whether plaintiff knew or should have known that the brakes of his truck were defective. Ava does not contend that there could be any way, under the evidence submitted, that plaintiff could have been contributorily negligent as to it and not as to Sweets. Thus we have no reason to doubt that if the issue of plaintiff's contributory negligence had been properly submitted in Ava's case, the jury's verdict would have been the same, i.e., that plaintiff was free from contributory negligence. Ava's argument that it was prejudiced by the denial of an opportunity to address the jury in summation as to this issue is without merit. Its counsel was not deprived of a closing. Therefore Aladdin Oil Burner Corp. v. Morton, 117 N.J.L. 260 (Sup. Ct. 1936), on which it relies, is inapposite. In his summation Ava's counsel spent considerable time discussing the manner in which plaintiff operated his truck, commented upon the evidence regarding when plaintiff first saw the parked tractor-trailer, and referred to plaintiff's inconsistent testimony concerning this factual issue. Likewise, Sweets' attorney, in his closing, specifically mentioned plaintiff's contributory negligence as an issue in the case and also discussed in detail the evidence pertaining to plaintiff's operation of his truck. Sweets' counsel raised the questions of when plaintiff first saw the tractor-trailer, why plaintiff failed to turn right at the bottom of the hill and use an open lane, whether plaintiff had been speeding and whether plaintiff 524 had failed to properly control his vehicle. The attorney for Sweets also referred to the alleged inconsistencies in plaintiff's testimony. The true issue here present is whether the lower court's striking the defense of contributory negligence was prejudicial to Ava. Ava's charge that it was precluded from a summation on this issue is purely a theoretical one. Since, as above noted, the jury found plaintiff was not guilty of contributory negligence, we conclude that on this point Ava has not demonstrated any prejudice mandating a reversal. Cf. Panko v. Grimes, 40 N.J. Super. 588, 599 (App. Div. 1956). It is fanciful to assume that Ava's counsel, by summation on this issue, could have swayed the minds of the jurors under the facts here present. Ava had nothing to advance on this issue beyond that which was already placed before the jury. Ava next contends that the trial court improperly and erroneously limited the scope of its cross-examination of plaintiff on the factual issue of how far plaintiff was from the tractor-trailer when he first saw that vehicle. We deem this point to be of no merit. The extent of cross-examination lies in the sound discretion of the trial judge. See, e.g., Graf v. Folarno, 99 N.J. Super. 173, 176 (App. Div. 1968); State v. Steele, 92 N.J. Super. 498, 503-504 (App. Div. 1966). The discrepancy between plaintiff's 1962 pretrial depositions and his trial testimony had been fully explored by Ava's counsel on more than one occasion. The judge, in ruling as he did, noted that there had been sufficient evidence adduced on the issue that Ava wished to pursue. We agree and find no abuse of discretion on the part of the trial court. Ava further contends the trial court erred in denying its motion to strike the evidence regarding prior brake servicing and adjustments of the Ava vehicle, in permitting plaintiff's counsel to comment thereon, and in instructing the jury that such evidence could be considered in determining 525 whether the brakes were defective at the time of the accident. Ava's motion to strike was made after plaintiff had abandoned the negligence theory of his claim. Ava argues that although this evidence might have been admissible on the abandoned negligence aspect of plaintiff's case, it was not relevant to plaintiff's breach of warranty claim, since the only pertinent inquiry on that count was whether the brakes were defective at the time of the accident. We agree with Ava's statement as to the pertinent factual issue. Cintrone v. Hertz Truck Leasing, etc., 45 N.J. 434, 451-452 (1965). However, we disagree with its argument that the controverted evidence was not relevant to that issue, for it could support a reasonable inference as to the condition of the brakes at the critical time. See Pabon v. Hackensack Auto Sales, Inc., 63 N.J. Super. 476 (App. Div. 1960). The court instructed the jury that in order to hold Ava liable it had to find that there was a defect at the time of the accident and that the evidence as to prior service could be considered only insofar as it bore on that specific issue. This limiting charge cured any alleged improprieties in plaintiff's summation. We therefore hold Ava's contention to be without substance. Finally, Ava argues that the denial of its motion for mistrial, following improper comments of plaintiff's counsel in his opening to the jury as to injuries suffered by plaintiff in accidents subsequent to the one here involved, constituted error. Although the reference by plaintiff's counsel, technically, may have exceeded the proper bounds of an opening, it does not rise to the heights of being prejudicial. The court carefully pointed out, in its charge, that plaintiff could recover only for the damages caused by the accident of April 4, 1961 and not for damages connected with any other accident. Additionally, even though plaintiff on direct did not testify as to these subsequent injuries, he was extensively cross-examined about them by Ava's counsel as well as 526 Sweets'. Upon the record, we find that the trial court did not abuse its discretion in denying the motion for a mistrial. In sum, we conclude that plaintiff's judgment against Ava should be affirmed. II We next give consideration to Ava's contention that the trial court erred in granting judgment n.o.v. in favor of Sweets and against plaintiff on the ground of collateral estoppel. Preliminarily, we hold that Ava has standing to appeal from this judgment. Ava moved to amend its answer to include a cross-claim for contribution against Sweets under the Joint Tortfeasors Contribution Law. Although this motion took place after the jury verdict against Ava and Sweets, it was made before the entry of the judgment n.o.v. in favor of Sweets. Thus, Donofrio v. Farr Lincoln Mercury, Inc., 54 N.J. Super. 500 (App. Div. 1959), relied upon by Sweets, is inapposite. Examining the merits of the substantive question, we conclude upon the entire record that the trial court correctly determined that the doctrine of collateral estoppel was applicable to prevent a relitigation against Sweets of the same issues that had been determined adversely to plaintiff in the latter's prior suit against Ava, Ventre, Pan Atlantic and Mitchell. In that action plaintiff attempted to hold Mitchell and Ventre liable for Mitchell's negligent parking of the tractor-trailer, which plaintiff asserted to be the proximate cause of the accident. The causation issue was fully litigated therein and the jury resolved it by rendering a verdict of no cause of action in favor of Mitchell and Ventre. Ava contends that the question considered in the earlier case is different from the one presently involved. It concedes that the relevant issue in the first action was whether the parking of the tractor-trailer constituted actionable negligence. However, Ava argues that the present case involves a different inquiry whether Sweets should be liable for its 527 negligence in directing the manner in which the vehicle was parked. The distinction that Ava attempts to draw lacks substance. Whether Sweets was negligent in giving the claimed instructions is immaterial unless it can be established that there was a causal relationship between its actions and the accident. This causal nexus could not be demonstrated without a determination being made that the parking of the tractor-trailer was a liability-imposing proximate cause of the event. This question was resolved adversely to plaintiff in the first suit and cannot be retried. The fact that Sweets was not a party to the earlier litigation does not prevent it from now asserting the application of the doctrine of collateral estoppel against plaintiff. The question to be decided is whether a party has had his day in court on an issue, not whether he has had his day in court on that issue against a particular litigant. McAndrew v. Mularchuk, 38 N.J. 156, 161 (1962). The criteria for determining who may assert a plea of collateral estoppel differ fundamentally from the criteria for determining against whom such a plea may be asserted. The doctrine cannot be raised against a litigant unless the latter was a party to the earlier litigation or in privity with a party thereto. However, one raising the plea of collateral estoppel need not have been a party, or in privity with a party, to the earlier proceeding. Coca-Cola Co. v. Pepsi-Cola Co., 6 W.W. Harr. 124, 36 Del. 124, 172 A. 260, 261-262 (Super. Ct. 1945). See also McAndrew, supra, 38 N.J., at p. 160. Since Ettin was a party in the first suit, Sweets was entitled to utilize the doctrine of collateral estoppel to prevent the relitigation of issues already determined against plaintiff. Our conclusion disposes not only of Ava's appeal from the judgment n.o.v. in favor of Sweets, but also renders plaintiff's cross-appeal from that judgment without merit. 528 III In view of the above determination, Sweets' cross-appeal is rendered moot. Judgment affirmed. SULLIVAN, S.J.A.D. (concurring). I concur in the foregoing opinion except that I do not agree that the trial court erred in striking the defense of contributory negligence from plaintiff's breach of warranty action against Ava. I think the trial court correctly held that there was insufficient evidence in the case to present a jury question as to plaintiff's contributory negligence in the breach of warranty action. See Cintrone v. Hertz Truck Leasing etc., 45 N.J. 434 (1965); Maiorino v. Weco Products Co., 45 N.J. 570 (1965). FOLEY, J.A.D. (concurring) Judge Leonard concludes that the trial court erred in striking the defense of contributory negligence from plaintiff's breach of warranty action, citing Maiorino v. Weco Products Co., 45 N.J. 570 (1965). Judge Sullivan concludes that the proofs did not raise a jury issue of contributory negligence under the rule of Maiorino (which was a restatement of the rule first enunciated in Cintrone v. Hertz Truck Leasing etc., 45 N.J. 434 (1965) as applied to the proofs in the Maiorino case). I concur with the latter view and agree that the judgment should be affirmed for that reason. Both of my colleagues hold that, assuming the trial court erred in withdrawing Ava's defense of contributory negligence from jury consideration, such error was not prejudicial. With this I disagree. I am of the opinion that if Ava was entitled to have the issue submitted to the jury the court's refusal to do so was prejudical per se. Furthermore, I feel strongly that the resulting curtailment of Ava's attorney's summation was of substantial detriment. We cannot know what Ava's approach *529 would have been had the issue of contributory negligence remained in its case, nor can we know whether a summation by Ava's counsel on that issue would have emphasized its importance, or whether counsel's presentation would have been more convincing or persuasive than the remarks of Sweets' attorney. I feel that the deprivation of advocacy in relation to a critical issue in a case should not be glossed over because a reviewing court concludes that the result would have been the same had the error not been committed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1520299/	98 Pa. Commonwealth Ct. 309 (1986) 511 A.2d 263 Rockwood Area School District and Pennsylvania National Mutual Casualty Insurance Company, Petitioners v. Workmen's Compensation Appeal Board (Tipton), Respondents. No. 263 C.D. 1985. Commonwealth Court of Pennsylvania. June 23, 1986. Argued March 11, 1986. 310 Before Judges MacPHAIL, DOYLE and BARRY, sitting as a panel of three. John J. Bagnato, with him, Robert G. Rose, Spence, Custer, Saylor, Wolfe & Rose, for petitioners. Samuel D. Clapper, with him, Nathaniel A. Barbera, Barbera and Barbera, for respondent, Alice H. Tipton, Widow of Jack E. Tipton, deceased. 311 OPINION BY JUDGE BARRY, June 23, 1986: This appeal results from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision awarding benefits to the claimant, Alice H. Tipton, on her fatal claim petition. The respondent, Rockwood Area School District (Employer), has pursued this petition for review. The claimant's petition had previously been denied on three occasions, and this case possesses a coextensively lengthy procedural history. The claimant's deceased, Jack E. Tipton, died on May 31, 1973 after suffering a fatal heart attack while at work. The deceased was employed as Superintendent of Schools of the school district, and on the day of his death was directly responsible for the dismissal of classes at the district high school, the principal of the school being absent on that date. Following the dismissal and his lunch period, the decedent collapsed over his desk and died later the same day. A fatal claim petition filed thereafter was contested by the employer. Testimony adduced in the course of ensuing hearings revealed that the deceased had on three occasions within the prior year been hospitalized for his heart condition; that conflicts with a certain member of the school board caused the deceased emotional stress; and that, according to his secretary, on the day of his fatal heart attack the decedent "was very concerned about [the high school] students" driving their cars home. Based upon a hypothetical question embracing the foregoing scenario, the claimant's expert testified that "with reasonable certainty, [one] could say that the stress of [the deceased's] work was a precipitating factor in triggering his fatal heart attack. Jacobs Deposition at 97. Conflicting testimony, however, was submitted to the effect that on the day of his death the deceased "appeared to be in good health and gave no indication 312 that he was not feeling well." In addition, the employer's medical expert, faced with precisely the same hypothetical, and recognizing that due to other numerous ailments the deceased was at high risk of coronary death, denied that it was "professionally possible . . . to give an opinion as to the role played by employment" in the deceased's death. See Lantos Deposition at 22-23. The latter testimony was believed by the referee, who denied the petition and made the following pivotal findings of fact: 25. At the time of his death, the decedent was not suffering from emotional distress. 26. The decedent's death was not the direct result of his employment and was not related thereto by reason of any emotional distress connected with said employment but was in fact the result of the natural progression of the decedent's pre-existing cardiac condition. Referee's Findings of Fact, Decision of 3/2/76. The denial was appealed, and the Board reversed, stating that "[w]e hold that the Referee's crucial findings of fact are not supported by competent evidence. This case must be remanded to him for clarification of the issues of stress and of medical evidence as to the cause of death." Board Decision of 9/16/76.[1] On remand the referee reached the same result based upon the same reasoning, denying the claimant's request that the record be re-opened for further testimony that the deceased 313 was under stress on the day of his fatal infarction. Referee's Decision of 6/23/78. The Board subsequently reversed the latter portion of the decision, remanding and ordering that "the parties shall be permitted to present evidence concerning whether . . . decedent on the day of his death was under stress." Board Decision of 11/20/80. After further testimony the referee again denied the petition based upon his prior finding that the deceased's death was unrelated to any work-related emotional stress. Referee's Decision of 9/16/81. Claimant appealed, and the Board again reversed and remanded, this time concluding that the referee erred as a matter of law and concluding that "a specific incident [need have] caused the fatal heart attack." Board Decision of 11/4/82. The Board's remand order included direction that a new decision be issued based upon "application of the correct legal princip[le]s concerning heart attack cases." Id. Before the commencement of remand proceedings, however, the formerly presiding referee died, and a new referee was assigned to the case. After a brief hearing, the new referee granted the petition, finding as a fact that, based upon the testimony of claimant's physician, "the Decedent's death was the direct result of his employment." Referee's Finding of Fact No. 15, Decision of 2/4/83. The Board affirmed, holding that the referee's findings were based upon substantial evidence. Board Decision of 12/27/84. From that affirmance the employer has appealed. Our initial scope of review embraces a determination of whether constitutional rights have been violated, whether the referee's findings of fact are supported by substantial evidence, or whether an error of law has been committed. Barna v. Workmen's Compensation Appeal Board (Jones & Laughlin Steel Corp.), 88 Pa. 314 Commonwealth Ct. 83, 86, 488 A.2d 651, 653 (1985) (allocatur granted). The employer sets forth two principal arguments in its appeal, first asserting that the Board erred as a matter of law in its initial remand, because it was based upon an improper re-evaluation of the referee's credibility determinations. Second, and in conjunction with the foregoing argument, the employer asserts that the referee's original findings and conclusions were in fact correct and show no capricious disregard of competent evidence. We agree and thus reverse the Board. We note at the outset that claimant asserts that the entire issue of the Board's first remand is moot, arguing that "[a]ny error in the initial remand is harmless . . . because the Referee again found for the Employer and the Employer suffered no harm or prejudice, even if the Board's remand was improper." Brief for Respondent at 18. Claimant insists, in turn, that the only order employer can possibly challenge is the most recent order of the board affirming the grant of benefits. Only at this point, claimant argues, has the employer been prejudiced by any action of the Board. We decline, however, to follow that reasoning. The pending controversy embraces the legal propriety of the whole of the proceedings. We cannot close our eyes to earlier error, especially that which ultimately, by the very force of time, led to a later decision adverse to the originally prevailing party. The issue regarding the first remand is thus still cognizable and necessary to the disposition of this case.[2] 315 We turn, then, to the employer's assertion that the Board exceeded its scope of review in vacating and remanding the original decision of the referee. As we have recited, the referee found specifically that the deceased was not suffering from emotional distress at the time of his death, and that he died instead due to the "natural progression" of a pre-existing cardiac condition. The Board, in vacating and remanding, acknowledged that the referee was the fact-finder and that its own scope of review was limited to a determination of whether a capricious disregard of competent evidence had been committed. Board Decision of 9/16/76, at 4. (Citing Universal Cyclops Steel Corp. v. Workmen's Compensation Appeal Board, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973).) See also American Refrigerator Equipment Co. v. Workmen's Compensation Appeal Board, 31 Pa. Commonwealth Ct. 590, 377 A.2d 1007 (1977). Presumably consistent with those precepts, the Board reviewed the evidence and concluded that the referee's "crucial findings of fact are not supported by competent evidence." Our careful review of the record, however, convinces us that the Board in fact reassessed the referee's determinations concerning credibility, notwithstanding its own comments to the contrary. With respect to whether the claimant was under stress on the day of his death, the referee chose to believe the evidence from a work-colleague of the deceased that, during lunch prior to the death, the deceased "appeared to be in good health and gave no indication that he was not feeling well." Referee's Finding of Fact No. 21, Decision of 2/11/76. The Board declared this finding "not to be supported by competent evidence," apparently finding more persuasive the contrary testimony of the deceased's secretary and that of other lay witnesses. That the Board may have found such testimony more persuasive, however, 316 was not a perception relevant to its review of the case. Universal Cyclops. The testimony relied upon by the referee was competent and within his province to accept. With respect to the referee's acceptance of the employer's expert's testimony, the Board's improper reassessment is even more apparent: One can infer by indirection that [the referee] has rejected entirely the unequivocal testimony of the treating physician, and that he has concluded on the basis of the testimony of [employer's expert] that death resulted from a natural progression of heart disease. [A] careful review of the latter testimony reveals that he felt unable to express any opinion as to the cause of death. . . . Incidentally, he had never examined the Decedent, and was relying exclusively on records and his admitted expertise in the field of cardiology. We hold that the Referee's crucial findings of fact are not supported by competent evidence. Board Decision of 9/16/76, at 5. Quite to the contrary, however, the employer's expert had testified that, based upon the hypothetical question originally offered by the claimant,[3] it was professionally impossible to give an opinion with respect to the role played by employment in the decedent's death. That opinion was prefaced by a recounting of the deceased's other documented ailments and consequent pre-disposition to cardiac death, testimony which was also believed and accepted by the referee: 317 [T]he decedent . . . had for a considerable period of time suffered from the following diseases prior to his death and was taking medication and treatment for the same: Diabetes Mellitus, Hypercholesteremia, elevated serum uric acid, Atherosclerotic Coronary Artery Disease, all of which greatly increased the risk of heart collapse and death even in the absence of stress. Referee's Finding of Fact No. 18, Decision of 2/11/76. Contrary to the Board's conclusion, the foregoing testimony constituted competent evidence to support the referee's finding that the death was not work-related but was instead the result of a non-work related progression of the deceased's heart disease.[4] That the Board found the claimant's expert more persuasive was, 318 again, a factor irrelevant to its review. We thus conclude that the Board exceeded its scope of review in its initial remand.[5] At this juncture, then, our own scope of review encompasses a determination of whether the referee's findings of fact are consistent with each other and with the conclusions of law, and can be sustained without a capricious disregard of competent evidence. American Refrigerator at 592, 377 A.2d at 1009. As we cannot say that there has been a "willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided,"[6] we re-instate the original findings and conclusions of the referee. Reversed. 319 ORDER NOW, June 23, 1986, the order of the Workmen's Compensation Appeal Board at A-85544, dated December 27, 1984, is hereby reversed. NOTES [1] The employer immediately appealed to this Court from the Board's remand order, "alleging that there was competent evidence to support the referee's findings and that the Board, without taking further evidence, erred by substituting its finding of fact for those of the referee." Rockwood Area School District v. Workmen's Compensation Appeal Board, 33 Pa. Commonwealth Ct. 250, 251, 381 A.2d 230, 231 (1978). That appeal, however, was quashed as interlocutory. Id. at 254, 381 A.2d at 232. [2] Additionally, because the second and third remands were, like the first, interlocutory, see, e.g., Hartman v. Workmen's Compensation Appeal Board, 67 Pa. Commonwealth Ct. 65, 445 A.2d 1364 (1982), the present appeal constitutes the first time that this Court has the opportunity to determine whether the Board erred in its initial remand. [3] That hypothetical, as we have stated, included an account not only of the alleged stress to which the deceased was subjected on the day of his death, but of the prior episodes testified to in order to support the proposition that the deceased's job put him under stress in general. [4] Also contrary to the Board's statement, the doctor's opinion was not rendered incompetent because he did not give an unequivocal opinion that the heart attack was not work related. Employer's expert was board-certified in internal medicine, and he based his opinion that it was professionally impossible to draw a relationship between the deceased's work conditions and the heart attack in recognition of the claimant's physical condition and the environmental circumstances surrounding his death. His opinion was thus clearly competent. Cf. Workmen's Compensation Appeal Board v. Mifflin-Juniata State Health Foundation, 19 Pa. Commonwealth Ct. 133, 338 A.2d 691 (1975). In any case, where, as here, there is no obvious causal relationship between work and the injury or death, the burden is on the claimant to demonstrate the nexus with unequivocal medical evidence. Zoltak v. Keystone-Harmony Dairy, 47 Pa. Commonwealth Ct. 378, 379, 408 A.2d 198, 199 (1979). Cf. McPhillips v. School District of Philadelphia, 40 Pa. Commonwealth Ct. 204, 208, 396 A.2d 922, 924 (1979) (where expert of party with burden of proof in fatal claim petition premised unequivocal testimony with respect to causation on hypothetical including pivotal, non-existing fact, the Board was held not to have capriciously disregarded competent evidence). As suggested in the accompanying text, however, we believe the Board's conclusion that the evidence was incompetent actually was based upon an improper reassessment of credibility. [5] The claimant argues that the Board was not reassessing credibility, but was, rather, remanding for crucial findings on causation "and of how [the referee] evaluated the testimony to reach his conclusion in light of the correct legal standard. . . ." Brief for Respondent at 24. We reject this argument. There is every indication that the Board perceived precisely the basis upon which the referee denied the claim, but was simply of the view that claimant's lay witnesses and medical expert were more persuasive than those of the employer. In addition, there is no indication that the Board considered the referee as having committed an error of law which would have justified reversal and/or remand. Such a conclusion was only articulated by the Board in the course of the third remand, in which the Board for the first time perceived the referee as not applying the appropriate heart attack causation standard. [6] Wilkes-Barre Iron & Wire Works v. Workmen's Compensation Appeal Board, 9 Pa. Commonwealth Ct. 612, 615, 309 A.2d 172, 173 (1973). Because we find the Board erred in its initial remand, we need not reach the issue of whether the substitute referee could, without a denial of due process to the employer, reassess the credibility of testimony without new hearings having been held. Cf. King Kup-Schoener Candies, Inc. v. Workmen's Compensation Appeal Board, 10 Pa. Commonwealth Ct. 351, 310 A.2d 717 (1973) (issue raised in Court but held waived because objection not timely entered).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519351/	250 Md. 181 (1968) 242 A.2d 153 SHEEHY v. SHEEHY [Nos. 254 and 342, September Term, 1967.] Court of Appeals of Maryland. Decided May 29, 1968. The cause was argued before HAMMOND, C.J., and HORNEY,[] MARBURY, BARNES, McWILLIAMS, FINAN and SINGLEY, JJ. Vivian V. Simpson with whom were Simpson & Simpson, Joseph B. Simpson, Jr., H. Algire McFaul, William T. Wood (No. 342 only) and Arthur C. Elgin on the brief, for appellant. 183 James C. Christopher, with whom was Robert L. Hillyard (No. 342 only) on brief, for appellee. MARBURY, J., delivered the opinion of the Court. The two appeals considered here both arise from a single equity case heard before the Circuit Court for Montgomery County, sitting as a court of equity. On December 22, 1966, the appellee, May J. Sheehy, filed a bill of complaint in which she alleged that she and the appellant, Vincent A. Sheehy, Jr., had entered into an agreement on December 18, 1965, reciting, inter alia, that they were not living together as man and wife and that Mr. Sheehy was to pay his wife the sum of $7,000 per year in monthly payments of $583.30. The bill further alleged that the payments coming due after June 18, 1966, had not been paid, and prayed that the defendant be required to specifically perform the agreement; that the plaintiff be awarded a money judgment for the payments in default; and that the plaintiff be accorded such other and further relief as may be required. On December 22, 1966, a show cause order returnable on or before January 20, 1967, was issued and directed to the appellant. On January 4, 1967, a return was made as follows: "Served the within subpoena personally by reading to and leaving copy of same together with a copy of the bill of complaint and order with Vincent A. Sheehy, Jr., this 29th day of December, 1966. Ralph W. Offutt, Sheriff" On January 17, 1967, Mr. Sheehy filed a preliminary motion under Maryland Rule 323 entitled "Motion to Quash Service" by which he appeared through his solicitors for the limited purpose of the motion on the ground that he had not been served personally nor had he been served by having a subpoena read to him and a copy left with him. This motion was supported by an affidavit specifically denying the sheriff's return. A hearing on the motion was held on January 20, 1967, before Judge Shook, at which testimony was taken from deputy sheriff Day, the deputy who had supposedly served the suit 184 papers. He testified that he had served the papers by reading same to the person within the apartment and posting the papers on the door. He further testified that after attending to some other business he later returned and found that the papers had been removed from the door, although he did not know by whom. After the testimony had been taken Judge Shook denied the motion on the ground that Code (1957), Article 75, Section 92 had been complied with and allowed the defendant fifteen days to plead to the bill of complaint. The appellant answered and a hearing was held before Judge Shure on June 26, 1967. At this hearing the appellee testified in her own behalf and the appellant, who renewed his motion to quash, did not offer any evidence because of the question of jurisdiction that had been raised by him. The matter was taken under advisement by the court and on July 17, 1967, a decree was filed by Judge Shure ordering the defendant to specifically perform the terms of the agreement and further, entering a money judgment in the amount of $7,000 for unpaid installments under the agreement. The appellant then appealed to this Court from the decree of July 17, 1967, which is the basis of appeal No. 254, and the appellee countered on September 6, 1967, by filing a petition for counsel fees in defense of that appeal. The appellant answered denying that the court had jurisdiction to award counsel fees to the plaintiff in any action other than an action for divorce. At the hearing before Judge Levine on October 20, 1967, no testimony was taken and on October 25, 1967, an order was issued ordering the appellant to pay the appellee $500 attorney's fees for her defense of the appeal. The appellant also appealed from this order, which gives rise to appeal No. 342. On the appeal from the decree ordering the specific performance of the agreement and entering the money judgment there is only one question raised, namely, whether the defendant had been personally served with process in accordance with the provisions of Article 75, Section 92. If the defendant was not properly served the court below had no jurisdiction and the decree issued was invalid and without significance. Little v. Miller, 220 Md. 309, 153 A.2d 271; Thomas v. 185 Hardisty, 217 Md. 523, 143 A.2d 618; Wilmer v. Epstein, 116 Md. 140, 81 A. 379. To have been valid the service must have been personal and the fact that the defendant may have had actual knowledge of the suit against him would not cure a defective service. Little v. Miller, supra; Harvey v. Slacum, 181 Md. 206, 29 A.2d 276; Wilmer v. Epstein, supra; 2 Poe, Pleading and Practice, Section 62 (Tiffany Ed.). It is true, as the appellee points out, that a proper return is prima facie evidence of valid service of process and a simple denial of service by the defendant is not sufficient to rebut the presumption arising from such a return. Weinreich, Adm'x v. Walker, 236 Md. 290, 203 A.2d 854; Little v. Miller, supra. In the instant case, however, there was much more than a simple denial of service by the defendant. At the hearing before Judge Shook, the deputy sheriff who claimed to have made the service, testified that he made it at "10200 Grosvenor Park, Apartment 301", while the bill of complaint and the subpoena gave the appellant's address as "10201 Grosvenor Place, Apt. 321." Moreover, the deputy never saw the occupant of the apartment at which he claimed to have served the suit papers and admitted that he did not know if the occupant was Vincent A. Sheehy, Jr. or some other Sheehy. Indeed, his only knowledge of the inhabitant of the apartment was that a voice answered "yes" when he asked "Mr. Sheehy?" This is quite different from a case where the person behind the door volunteers that he is "Mr. Sheehy." In the latter example the person answering would be unlikely to be able to volunteer the correct name if he was not actually that person, while in the instant case anyone could say yes if asked if he was Mr. Sheehy. From the discrepancies indicated by the testimony and the pleadings below we conclude from the record before us that there was no valid personal service of process as required by Rule 104. The appellee also contended that service was properly made under the provisions of Article 75, Section 92, as determined by Judge Shook, which provides as follows: "In all cases of civil process at law or in equity, or of any civil writ whatsoever, issued out of any court, or by any judge of this State, and directed to or 186 against, or lawfully to be served upon any person whatsoever, wherein the service of such writ or process upon such person then being within the local jurisdiction of such court or judge, shall be prevented or resisted by threats, violence, intimidation or superior force on the part or behalf of such person; or when the said person so liable to be served with such writ or process shall be within any fortress, or fortified place or building, or at any military post within said jurisdiction, and entrance thereto, or access therein to such person shall be by order or on the behalf of such person refused, obstructed or prevented, so that the officer charged with the service of such writ or process shall be unable to serve the same, or cannot do so without force, or personal risk, the said officer shall leave a copy of such writ or process, if practicable or permitted, with such person or persons as shall present themselves, where such writ or process is sought to be served, and where or whereabout the person on whom the same is sought to be served shall be; or shall set up such copy upon the fortress, building or premises aforesaid, or as near thereto as may be practicable; and shall make return of the facts accordingly; which return shall to all legal intents, purposes and effect be equivalent to a return of actual personal service of such writ or process upon the party named therein." An examination of the deputy's testimony does not reveal any circumstances from which we can draw the conclusion that service was "prevented or resisted by threats, violence, intimidation or superior force" or that the person behind the apartment door was "within any fortress, or fortified place or building * ." Actually the testimony indicates that the deputy never even requested that the door be opened and there was nothing to show that he was in any way repelled by force or was threatened. Accordingly, we hold that there was no valid service of process on the defendant and that the decree for specific performance 187 of the agreement and the money judgment as a result thereof was of no force and effect since the court was without jurisdiction of the parties. Neither was there any jurisdiction as to the order requiring the appellant to pay $500 counsel fees. The appellant maintained his denial of jurisdiction throughout and did not put in a general appearance. As the order stands on no firmer grounds than did the decree issued by Judge Shure, we hold that it was invalid and without legal effect and therefore must be reversed. Under these circumstances we need not consider the question raised by the appellant, whether the lower court erred in ordering the defendant husband to pay counsel fees of the wife from whom he was separated under an agreement, when no suit had been filed for a divorce. Decree in No. 254 reversed. Order in No. 342 reversed. Costs to be paid by appellee. NOTES [*] Reporter's Note: HORNEY, J., sat at the oral argument of these cases but took no part in the decisions.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519350/	232 S.W.2d 977 (1950) BLACKARD v. STATE and 10 other cases. Nos. 4611-4621. Supreme Court of Arkansas. October 2, 1950. Petition for Rehearing Withdrawn November 1, 1950. 978 Yates & Yates, Ozark, Grant & Rose, Fort Smith, for petitioners. Thomas Harper, Fort Smith, for intervenor. Ike Murry, Atty. Gen., for the State. McFADDIN, Justice. Each of the eleven petitioners seeks, by writ of certiorari, to have this Court quash the Chancery Court order which found each petitioner guilty of contempt and assessed punishment. The contempt proceedings were tried in a consolidated hearing in the Chancery Court; so the eleven petitions I. The wording of the permanent injunction is: "That the defendants * * and all other persons acting in concert with them be, and they are hereby permanently re- strained and enjoined from committing, encouraging, permitting or causing to be committed any of the following acts: "Picketing in any manner, either singly or in larger numbers, plaintiff's property or plaintiff's employees, or any roads, railroads or other means of access thereto; in Johnson or Franklin Counties, State of Arkansas, or any other places within the State of Arkansas; congregating in any manner at or near plaintiff's property or anywhere else for the purpose of picketing plaintiff's property and its employees or any other persons desiring to enter upon and leave plaintiff's property or to do business with plaintiff upon its property or at any other place; in any manner from threatening, intimidating, accosting or detaining any of plaintiff's employees, or from threatening or intimidating by any means what- for certiorari have been consolidated in this Court. The contempt proceedings spring from a labor dispute. When the Utah Construction Company (hereinafter called "Utah") undertook to remove coal from its Ozark-Philpott Mine, a labor dispute arose as to whether the mine would be operated by members of the United Mine Workers of America. On petition of Utah, the Chancery Court issued a temporary order, and later a permanent order (on January 19, 1950), restraining the Union, its members, and all other persons, not only (a) from picketing any and all persons or places so as to interfere in any way with Utah's operation, but also (b) from "attempting to prevent in any manner by the use of force or otherwise the plaintiff (Utah) from operating its property".[1] Sometime after the issuance of the permanent restraining order, the eleven petitioners herein, and also several other parties, were cited for conduct alleged to be in contempt of the Court, and as being in violation of the said restraining order. After a careful, patient and thorough hearing, the Chancery Court found that certain of those cited had not been in contempt, but that each of the eleven petitioners herein was guilty of contempt for violation of 979 the said permanent restraining order. Punishments were assessed as hereinafter stated. From the orders of punishment each of the eleven petitioners invokes certiorari; and the major contention is that the evidence fails to support the Court's finding that a contempt had been committed by any individual petitioner. At the outset it is appropriate to state some of the rules applicable to such a situation as is here presented: I. "Criminal contempt proceedings are those brought to preserve the power and vindicate the dignity of the court and to punish for disobedience of its orders. Civil contempt proceedings are those instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for the benefit of such parties." Definitions of, and distinctions between, civil contempt and criminal contempt may be found discussed in a number of cases. See Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 S. Ct. 492, 55 L. Ed. 797, 34 L.R.A, N.S, 874; Bessette v. W. B. Conkey Co., 194 U.S. 324, 24 S. Ct. 665, 48 L. Ed. 997; In re Nevitt, 8 Cir, 117 F. 448; Wakefield v. Housel, 8 Cir, 288 F. 712; Parker v. United States, 1 Cir, 153 F.2d 66, 163 A.L.R. 379; see 12 Am.Jur. 392, from which the above quoted words have been taken; and see also 17 C.J.S, Contempt, § 5, p. 7. One of the reasons for the distinction between criminal contempt and civil contempt is because it is generally held that in criminal contempt proceedings the proof must be beyond a reasonable doubt. In the case at bar the proceedings involve criminal contempt; and the trial court held that the proof had to be beyond a reasonable doubt, just as in a criminal case.[2] This ruling was correct. See Gompers v. Buck's Stove & Range Co., supra; Michaelson v. United States, 266 U.S. 42, 45 S. Ct. 18, 69 L. Ed. 162, 35 A.L.R. 451; Davidson v. Wilson, 3 Cir, 286 F. 108; and see 12 Am.Jur. 441 and cases there cited. See also Annotation in 49 A.L.R. 975 "Degree of Proof Necessary in Contempt Proceedings". This ruling gave the petitioners the benefit of every reasonable doubt. We will subsequently discuss whether the evidence was sufficient to establish, beyond a reasonable doubt, the commission of contempt by each petitioner. II. The correct procedure to obtain a review by this Court of the judgment of the trial court in a contempt case is by certiorari, just as is here invoked. See Whorton v. Hawkins, 135 Ark. 507, 205 S.W. 901. In McCain v. Collins, 204 Ark. 521, 164 S.W.2d 448, 451, we said: "The office of the writ (of certiorari) is merely to review the errors of law, one of which may be the legal sufficiency of the evidence." See also Bertig Bros. v. Independent Gin Co, 147 Ark. 581, 228 S.W. 392. III. On review by this Court in such proceedings by certiorari, we do not try the criminal contempt case de novo, despite any such language so intimating as contained in Jones v. State, 170 Ark. 863, 281 S.W. 663. Rather, we review the evidence just as we would in an appeal in any criminal case. The trial court in the first instance, in a criminal contempt proceeding, must find the cited person guilty beyond a reasonable doubt. Then, on certiorari proceedings this Court reviews the record to determine whether the evidence, when given its full probative force, is sufficient to sustain the finding of the trial court. See Stewart v. United States, 8 Cir, 236 F. 838; Binkley v. United States, 8 Cir, 282 F. 244; Davidson v. Wilson, 3 Cir, 286 F. 108; and In re Oriel, 2 Cir, 23 F.2d 409. So much for the general rules. With these rules in mind we have examined the record herein concerning each of the eleven petitioners. The main insistence of the petitioners is that the evidence is insufficient to support the finding of the Chancery Court; and this insistence makes necessary a review of the salient evidence regarding each contemnor. Evidence was presented concerning three or more separate incidents. We will discuss the case as it relates to each petitioner. 980 (a) The contempt by the petitioner, Woodrow Thompson, consisted of threatening an employee, William Almond, who at all times was employed by Utah at its Ozark-Philpott Mine. Almond testified that after the permanent injunction had been granted, Woodrow Thompson approached him and said: "I hope every damn one of you have to work for 50(S a day. * * * We're after you. * * * If you go back out there and go to work, I'm going to get your ." Certainly these statements, if made by Thompson, were in contempt of the injunction because they constituted threatening an employee of Utah; but it is insisted by Thompson that he made no such statements, and several witnesses who professed to have heard the entire conversation said that Thompson did not make the said remarks. With the evidence in conflict, it became a matter for the trial courtwith the same prerogative in this case as a jury has in a criminal caseto determine which testimony to believe. We will subsequently discuss this matter of credibility. (b)The contempt by the petitioner, Matt Snider, consisted of attempting to intimidate Jack Morton, an employee of Utah. Morton testified that Snider approached him when the two were alone. Morton testified of Snider: "Q.He came on out to the car and he said, `You think you've got a good job, do you?and used a few cuss words; he said, `You think you've got a pretty God-damned good job, do you?', and I said, `Yes, fair', and he said, `Well, you're just putting guys like me out of work', and I said, `Well, I can't help that. I've got to make a living', and he went ahead to say, `You won't work out there long', and I said, `Why?', and he said, `Well,'he said, `guys like me are going to stop you', and I said, `You are?', and I said, `Well, as long as they let me work, I'm going to work out there', and he just went ahead cussing and left a cussing. He said I wasn't going to work out there very long, or nobody else work out there very long." Snider denied that he had such a conversation with Morton ; and Snider was supported by several witnesses who testified that if any such conversation had taken place, they would have heard it. What we have previously said about the case against Woodrow Thompson applies with equal force to the case against Matt Snider; and we will later discuss the matter of credibility. (c)The contempts by each of the remaining nine petitioners arose from their efforts to prevent Ed Willey and his truck drivers from hauling shale to the Utah mine from a pit located twelve or fourteen miles away. That this shale was necessary for Utah's continued operation was definitely established. Petitioner Ogalvie at one time had a contract for his trucks to haul the shale and he either surrendered the contract or lost it. At all events, Ed Willey was under contract for his trucks to haul the shale. One disinterested witness (Chester Emil) testified that Ogalvie told him that Ogalvie would not deliver the shale because it was not a Union job, and that if Willey could not haul the shale, then Utah "would have to go Union". Another disinterested witness (Sid Skaggs) testified that Ogalvie and Cecil Ross (one of the petitioners) were together when Ross told Skaggs that Ross "was going to have a bunch out there to stop Ed Willey from hauling shale". On Friday, January 20th, a group of men arrived at Skaggs' store which was located about a mile from the shale pit and at a place where the road to the shale pit left the main highway. Skaggs suggested to the men that an injunction had geen granted against picketing and interfering with Utah's operation; but the spokesman for the group advised Skaggs that the injunction was not effective in the County in which Skaggs' store and the shale pit were located.[3] Petitioners Ogalvie, Bud Ross, and Cecil Ross seemed to have been the "mainsprings" of the plan to stop Willey's trucks from hauling the shale. Ogalvie and Cecil Ross, with petitioner Bud Wise, actually assaulted, or assisted in an assault on Willey on Saturday, January 21st, after the assemblage of the others at the shale pit on Friday, January 20th, had failed to serve as a sufficient deterrent from the hauling. 981 The other five petitioners (Blackard, Killough, McCleary, Marvel, and Webb) either congregated at the shale pit for the purpose of intimidation or otherwise assisted in attempts to deter Willey and his truck drivers from hauling shale for Utah. Their principal defenses were (a) that the differences with Willey arose out of matters other than the Utah injunction, and (b) that the petitioners happened by mere coincidence to be at the shale pit and at Skaggs' store. It is argued that all that some of the petitioners did was to assemble at the shale pit on Friday, January 20th, and that such an assemblage was not a picket line. We are not considering any question relating to picketing, because the contemnors violated that part of the injunction which was a restraint "from preventing or attempting to prevent in any manner * * the plaintiff from operating its property known as the Ozark-Philpott Mine * * ". We agree with the Chancellor that the assemblage at the shale pit was an attempt to prevent the hauling of the shale to Utah's mine. J. W. Lee testified that an assemblage of twenty or twenty-five men at the shale pit had never occurred previously or subsequently. Lee operated the loading machine for Willey at the shale pit and testified that Willey's truck drivers were accosted and engaged in conversation by some of those in the assemblage. C. C. Patton, one of the truck drivers for Willey, detailed the conversation Cecil Ross had with him to the effect that if the shale wasn't hauled, Utah would have "to go Union". Dexter Curtis, another of Willey's truck drivers, testified to like effect. The record is voluminous: the transcript consists of 490 typewritten pages; and the abstracts and briefs consist of 281 printed pages. To review all of the evidence would serve no useful purpose. The evidence regarding these nine petitioners is in the same hopeless conflict as is that concerning the two petitioners previously mentioned; and we therefore now discuss the matter of credibility. If the evidence should be weighed by the mere number of witnesses, then probably the petitioners should prevail; but the evidence in a case like this, just as the evidence in any case, is to be tested by the truth and not by the number of witnesses. In Romines v. Brumfield, 199 Ark. 1066, 136 S.W.2d 1023, 1024, we quoted Ballentine's Law Dictionary: "The weight of evidence is not a question of mathematics, but depends upon its effect in inducing belief. One witness may be contradicted by several and yet his testimony may outweigh all of theirs. The question is not on which side are the witnesses more numerous, but what is to be believed." Immediately after the conclusion of the evidence, the Chancellor delivered an opinion from the bench which when transcribed consumes ten typewritten pages. The opinion shows a masterful grasp of the evidence, and contains a review of the testimony on each of the alleged acts of contempt. In one portion of the opinion the Chancellor, in referring to some evidence offered by the petitioners, said: "I don't believe a word of it." The Chancellor heard the witnesses testify and observed the demeanor of each while on the witness stand and has positively stated in the record that the basis of his finding was the truthfulness of the testimony offered to show the contempt by each of the eleven petitioners and the falsity of the testimony of their defense. As previously stated, we review the evidence in this case just as we would an appeal in an ordinary criminal case, that is, to determine whether the evidence, when given its full probative force, is sufficient to sustain the finding of the trial court. We find that it is. Twenty-two individuals were cited for contempt. The Chancery Court, after a painstaking hearing, found that the evidence was insufficient against eleven of the petitioners, but found that the evidence of contempt was sufficient against the eleven petitioners herein; and assessed fines of $25.00 each against the petitioners Thompson, Snider, Blackard, Killough, McCleary, Marvel, and Webb. Bud Wise was fined $50.00. Ogalvie and Cecil Ross were each punished by a fine of $200.00 and thirty days in jail; and Bud Ross received a fine of $100.00 and a ten day jail sentence. 982 A careful review of the entire case convinces us that each of the eleven petitions for certiorari should be denied and that the order of the Chancery Court, finding each of the petitioners to be in contempt and adjudging punishment, therefore should be allowed to remain in full force in all respects. NOTES [1] The wording of the permanent injunction is: "That the defendants * * * and all other persons acting in concert with them be, and they are hereby permanently restrained and enjoined from committing, encouraging, permitting or causing to be committed any of the following acts: "Picketing in any manner, either singly or in larger numbers, plaintiff's property or plaintiff's employees, or any roads, railroads or other means of access thereto; in Johnson or Franklin Counties, State of Arkansas, or any other places within the State of Arkansas; congregating in any manner at or near plaintiff's property or anywhere else for the purpose of picketing plaintiff's property and its employees or any other persons desiring to enter upon and leave plaintiff's property or to do business with plaintiff upon its property or at any other place; in any manner from threatening, intimidating, accosting or detaining any of plaintiff's employees, or from threatening or intimidating by any means whatever any of plaintiff's employees or members of their families, and from interfering in any manner with any of plaintiff's employees to prevent them from working peaceably upon plaintiff's property and from preventing or attempting to prevent in any manner oy the use of force or otherwise the plaintiff from operating its property, known as the Ozark-Philpott Mine, or in any manner from interfering with or preventing by any means whatever any of the plaintiff's employees in going to and from plaintiff's property or anywhere else for the purpose of carrying on their employment with plaintiff, or from going on plaintiff's property, or damaging or interfering in any manner with any of plaintiff's property for the above purposes." (Italics are our own.) This injunction must of course be now considered as a completely valid one. Since no appeal was taken from the decree in which it was issued, we have no occasion to pass on it. See Carnes v. Butt, 215 Ark. 549, 221 S.W.2d 416. [2] The decree of the Chancery Court specifically states that the contemnors were guilty "beyond a reasonable doubt". [3] In this conclusion the spokesman was in error, as is shown by the injunction copied in a preceding footnote.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519352/	232 S.W.2d 177 (1950) KELLY v. LAHEY. No. 27800. St. Louis Court of Appeals. Missouri. July 18, 1950. Francis R. Stout, of St. Louis, for appellant. Joseph W. Murphy, Keegan & Rickhoff and Gregg W. Keegan, all of St. Louis, Orville Richardson, of St. Louis, of counsel, for respondent. WOLFE, Commissioner. This is a suit for damages arising out of personal injuries sustained by the plaintiff when a stretcher he was adjusting was 178 struck by defendant's ambulance. The Illinois Terminal Railroad Company was originally joined as a defendant but a motion for a directed verdict was submitted by it and sustained by the court at the close of plaintiff's case. The trial continued against the defendant, Francis Lahey, and the jury returned a verdict against him in favor of the plaintiff in the sum of $9,500. This amount was reduced to $6,000 after an order of remittitur by the trial court. The defendant appeals. George Kelly, the plaintiff, was employed as an ambulance driver for the City of St. Louis. Early in the morning of December 14, 1947, he answered a call to an accident that had occurred on McKinley Bridge. A train of the Illinois Terminal Railroad had collided with an automobile at a point on the bridge slightly west of the Missouri bank of the Mississippi River. Kelly drove the city ambulance to the scene of the accident and found there the wrecked automobile with its rear end against the south rail of the bridge and its front facing northward. He drove past the automobile and stopped about 15 feet from it. In the front seat of the automobile was an unconscious woman. The door beside her was jammed and Kelly, with the aid of policemen who were present, managed to pull it open. A metal stretcher on wheels was placed at a convenient distance from the wrecked automobile and parallel to it. Kelly put the woman upon the stretcher and fastened the breast straps over her. He then started to fasten the foot straps when an ambulance coming from the east struck the stretcher causing it to hit Kelly and to knock him back into the wrecked automobile. It was not until after this had occurred that Kelly saw the ambulance but just prior to the time it hit the stretcher he heard some one shout and the people who were assisting him jumped aside. The police officers called as witnesses by the plaintiff testified that they saw the defendant's ambulance approaching while it was some distance away but they assumed that it would stop. As it got within about 30 or 40 feet of them it skidded on a heavy frost which covered the road surface of the bridge and ran into the stretcher. Warning flares were burning and an employee of the Terminal Railroad some 150 or 200 feet east of the accident had attempted to flag the ambulance to a stop but its siren was sounded and it continued ahead. Jerry Zahn, the driver of the defendant's ambulance, testified that he received an emergency call at 5:00 a. m., directing him to go to an accident on McKinley Bridge, and that he drove about two miles to the bridge. The road that he traversed on his way there was dry but the bridge surface had moisture upon it. He knew that the surface was slippery when wet as he had traveled it in all kinds of weather and he described its condition on that day as being dewy. He testified that he saw the wrecked car ahead of him when he was 150 feet east of it and slowed his ambulance down to a speed of 10 or 12 miles per hour. When he was 75 feet away he again reduced his speed and was traveling at about 4 or 5 miles per hour when he reached a point 30 feet from the wrecked car. Here he applied his brakes in an attempt to stop but the ambulance slid forward into the wrecked automobile. Zahn backed his ambulance away and the plaintiff, with the assistance of the police officers, placed the injured woman in the city ambulance and drove it to the City Hospital. Kelly's knee and back pained him and after reaching the hospital X rays were taken of his leg after which he was sent home. A Dr. Klein was called to see him and found him complaining of pains in his back and left knee. Both of these areas were discolored by bruises on the day following. At the time of the trial Kelly still complained of pain in his back and was wearing a belt designed "to support the lumbo-sacral muscles and the sacro-iliac area". The petition charged both specific negligence and humanitarian negligence but the plaintiff elected to go to the jury on the latter charge. Instruction No. 2, which submitted the case to the jury under the humanitarian doctrine, predicated a verdict for the plaintiff on the failure of defendant's driver "to 179 have stopped the said automobile-ambulance, swerved the same or sounded a warning of the approach and movement of the said automobile-ambulance, and thus have avoided colliding with a stretcher which struck plaintiff". It is contended that the instruction was erroneous in that the facts did not present a case within the humanitarian rule. The defendant asserts that when we view the evidence in a light most favorable to the plaintiff it falls short of proving that the defendant's driver could have done anything to avert striking the stretcher after the plaintiff came into a position of discoverable peril. The plaintiff himself did not see the ambulance but did hear some one shout, "Look out", immediately before it struck the stretcher. It was a police officer named Dalton that had shouted the warning and in testifying on behalf of the plaintiff he stated that he saw the ambulance coming from about two blocks distance. He was standing at the door of the wrecked car and waved his flashlight. He thought the ambulance would stop. Describing the incident further Dalton stated: "He came over with his lights blinking, and there was a lot of frost, just like a light of snow on the bridge, and he just skidded right into the whole bunch there." Officer Silch, who was also assisting at the accident, stated that he heard the ambulance siren and looked up and saw its lights approaching. When it reached a point 40 or 50 feet away it was traveling at the rate of 15 or 20 miles per hour. Then he related: "Well, it appeared that he was applying his brakes, but it didn't stop, he was skidding, and when he got about 20 feet away, we saw he was going to hit us, and I jumped back, and, I don't know, Kelly was in between the car and the stretcher, and it happened so quick, the left side of that ambulance hit the stretcher and forced the stretcher against the car, and Kelly". The humanitarian doctrine as it relates to the driving of automobiles on public highways embraces situations where the plaintiff, oblivious of his danger, is in a position of imminent peril of being struck by the defendant's car. After such peril is discoverable, in the exercise of the highest degree of care, the defendant is required to use the means at hand, with safety to himself, to avoid injuring the plaintiff. Chenoweth v. McBurney, 359 Mo. 890, 224 S.W.2d 114; Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935; Wright v. Spieldoch, 354 Mo. 1076, 193 S.W.2d 42; Smith v. Fine et al., 351 Mo. 1179, 175 S.W.2d 761. In the case of Smith v. Siedhoff, Mo.Sup., 209 S.W.2d 233, loc. cit. 236, our Supreme Court stated: "Even so much as a birds-eye view of the personal injury litigation in this state for the past three or four decades would demonstrate how widely the humanitarian rule has been sought to be invoked and applied to varying states of fact. The case made law of Missouri has widely extended the rule, far beyond its original concept. But not every state of facts resulting in injuries from moving objects gives rise to such a cause of action." The extent to which the humanitarian rule has expanded beyond its original concept has not altered the requirement that its application is confined to the space of time after the peril is discoverable and the rule is not applicable to the negligence of the defendant prior to the time the peril arose. In other words, the antecedent negligence of the defendant is not to be considered. Lowry v. Mohn, Mo.Sup., 195 S.W.2d 652; Wright v. Spieldoch, 354 Mo. 1076, 193 S.W.2d 42; State ex rel. Sirkin & Needles Moving Co. v. Hostetter, 340 Mo. 211, 101 S.W.2d 50. Kelly was in no position of imminent peril as he stood on the bridge with traffic being warned at each approach and police present to signal it to a stop. As a matter of fact he was in a position of relative safety. Under all of his evidence and all that presented by the defendant, Kelly's peril arose when the ambulance skidded instead of stopping. To come under the humanitarian rule there should have been some evidence upon which the jury could have concluded or inferred that after the ambulance started skidding it could have been turned or stopped or a timely warning sounded. The fact that the ambulance struck the stretche is of itself no evidence that it could have 180 been turned aside and stopped or that a warning could have been sounded. We stated in Bauer v. Wood, 236 Mo.App. 266, 154 S.W.2d 356, loc. cit. 358: "The mere fact of the Wood automobile colliding with the Bauer automobile is not of itself any proof whatever of omission of duty on defendant's part to prevent the collision after discovering plaintiff in a position of peril. The question of whether or not defendant was negligent does not depend upon a consideration after the accident has occurred of what might have been done to avoid the accident, but it depends upon what, under the then present circumstances before the accident, could reasonably have been anticipated by the defendant and provided against. * * It is incumbent upon plaintiff to place before the jury facts from which the jury could reasonably and intelligently conclude that defendant was negligent in failing or omitting to act at a time when he could have acted to avoid the collision." Also in point is Allen v. Kessler, Mo.Sup., 64 S.W.2d 630. There is no question that the evidence was sufficient to submit the issue of primary negligence to the jury. There was testimony that the driver knew the bridge was slippery when wet and that he did not have the ambulance under sufficient control to stop it under the conditions known to exist. But this was primary negligence and since humanitarian negligence is not present in the case the court erred in giving instruction No. 2. It is the plaintiff's contention that the defendant, by offering a converse instruction to plaintiff's instruction No. 2, joined in the submission of the case under the humanitarian rule and is estopped from assigning error against it. He relies upon the general rule that one party to a suit cannot complain of an erroneous instruction given for his adversary when his own instruction contains the same error of which he seeks to complain. We are cited to four cases in support of the plaintiff's position. One of these is Billingsley v. Kansas City Public Service Co., 239 Mo.App. 440, 191 S.W.2d 331, in which case the defendant assigned error against an instruction on the plaintiff's whole case which omitted the issue of pleaded contributory negligence of the plaintiff in riding in an automobile with an intoxicated driver. The defendant had offered an instruction on contributory negligence without including the element claimed to have been erroneously omitted by the plaintiff and the court held that the defense had been waived. The defendant in that case under took to state its own conception of contributory negligence under the facts and could not, of course, be heard to complain that the plaintiff adopted defendant's idea of its own defense. Another case cited is Zimmerman v. Salter, Mo.App., 141 S.W.2d 137, wherein the court held that the instruction complained of had been properly given. The question of waiver was not determinative of the case. Still another case relied upon is Chamberlain v. Missouri-Arkansas Coach Lines, Inc., 351 Mo. 203, 173 S.W.2d 57. There the court held that the defendant could not complain of the plaintiff's instruction when his own had expanded and broadened it. The last case cited by the plaintiff is Crews v. Kansas City Public Service Co., 341 Mo. 1090, 111 S.W.2d 54, loc. cit. 58, wherein the court stated: "It is clear that the trial court was not informed that at the time the defendant's view of the principles of liability was different from plaintiff's theory. We hold that the defendant thereby waived its right to complain that the trial court submitted an erroneous theory of recovery." The situation in the case under consideration is not similar to those of the cases cited for here the whole cause was submitted to the jury on an erroneous theory of law. The defendant objected to the instruction for the plaintiff and apparently made known his reason. After doing this he offered a converse instruction to the one the court had indicated it was going to give. Under such circumstances the rule of waiver does not apply. In the case of Millhouser v. Kansas City Public Service Co., 331 Mo. 933, 55 S.W.2d 673, loc. cit. 676, our Supreme Court after stating the rule said: "Such rule, however, *181 should be applied with discretion. The underlying reason of the rule is that one party cannot predicate error on an instruction declaring a theory of law which he himself has adopted and invited and induced the court and his adversary to adopt. It is sort of a judicial set-off of one error against a similar error, or more properly applied when the court finds that both parties have used or tried to use the same erroneous view of the law to his own advantage, in which case this court will not aid either party, but will leave them where they have put themselves." There is nothing here to indicate that the defendant sought to use the erroneous view of law to his own advantage and the errors he complains of were not waived. The appellant raises another point regarding the degree of care which it should have been charged. It is contended that since the accident occurred on a privately owned bridge only ordinary care was required of defendant's agent and that the court erred when it instructed the jury that he was required to use the highest degree of care. The highest degree of care in the operation of a motor vehicle on the highways of this state is required by Section 8383, R.S.Mo.1939, Mo.R.S.A. § 8383. We stated in Crocker v. Jett, Mo.App., 93 S.W.2d 74, loc. cit. 76: "It is pertinent to observe in this connection that the word `highways' is used in the statute in its popular, rather than its technical, sense, and is intended to include all highways traveled by the public, regardless of their legal status." In the later case of City of St. Louis v. Lee, Mo.App., 132 S.W.2d 1055, we held that the Municipal Bridge of St. Louis was a thoroughfare. It follows that the bridge where the accident took place comes within Section 8383 and the highest degree of care is required of one operating a motor vehicle upon it. There is a further contention that the judgment is excessive but the case must be retried and that point need not be passed upon. For that reason plaintiff's disability and injuries have not been fully stated. If there was no question that the amount of the verdict was proper the cause could be remanded for retrial on the sole issue of liability but such is not the case. The trial court held that the jury's verdict was excessive and directed that a remittitur be made. Since the verdict was excessive and a retrial must be had on the question of liability the case should be tried again on all of its issues. Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541. For the error noted the judgment should be reversed and the cause remanded for a new trial, and the Commissioner so recommends. PER CURIAM. The foregoing opinion of WOLFE, C., is adopted as the opinion of the court. The judgment of the circuit court is accordingly reversed and the cause remanded. ANDERSON, P. J., and HUGHES and McCULLEN, JJ., concurs.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519375/	232 S.W.2d 535 (1950) GOODMAN v. ALLEN CAB CO., Inc. No. 41544. Supreme Court of Missouri, Division No. 1. September 11, 1950. 536 Arthur U. Simmons, Edwin Rader, Clayton, for appellant. J. W. Stipelman, Everett Hullverson, Forrest Boecker, St. Louis, for respondent. DALTON, Judge. Action for $15,000 damages for personal injuries sustained when plaintiff, a pedestrian, came into collision with a taxicab at a street intersection in the city of St. Louis. Verdict and judgment were for defendant, but the trial court sustained plaintiff's motion for a new trial and set the verdict and judgment aside. Defendant has appealed from the order granting the new trial. Laws 1943, p. 390, Sec. 126, Mo.R.S.A. § 847.126. Plaintiff alleged that defendant was "engaged in the business of operating taxicabs as a public carrier of passengers for hire"; and that, on or about the 23d day of December 1947, as "the defendant by and through its agent and chauffeur was operating one of its taxicabs" westwardly on Franklin avenue, it struck and injured plaintiff as he was walking across Franklin avenue going south on the east side of Twelfth street. Various assignments of primary and humanitarian negligence were set forth. Defendant, after denying generally certain allegations of the petition, alleged "that 537 the taxicab was, at said time and place being operated by one Warren Schannon who at said time and place was an independent contractor and was not acting as agent for the defendant nor on any business or mission for the defendat." Defendant further made various specific assignments of contributory negligence against the plaintiff. Plaintiff submitted the cause to the jury upon an assignment of primary negligence, towit, that defendant violated an ordinance of the city of St. Louis requiring drivers and operators of vehicles to comply with signals given by electric automatic traffic signals, in that the taxicab was driven westwardly through the intersection by an agent and chauffeur of the defendant taxicab company when the signal "showed a red light to regulate traffic on Franklin avenue and a green light to regulate traffic on Twelfth boulevard." The only instruction offered and given on contributory negligence submitted a finding that, "as said taxicab approached the intersection of Franklin avenue and 12th street, the electric traffic signal was green or `Go' for westbound traffic, and red or `Stop' for southbound traffic or pedestrians, and * * * that as the defendant's taxicab was in the act of passing Charles Goodman, that he, Charles Goodman, walked into the right side of defendant's taxicab * * ." It will not be necessary to review the evidence upon which these submissions were based. The motion for a new trial was sustained upon ground 8, of the motion, as follows: "That the court erred in admitting, over the objection and exception of plaintiff, incompetent, irrelevant, immaterial, improper, prejudicial and illegal evidence offered by the defendant." Appellant contends that the trial court erred in granting a new trial to plaintiff on the ground assigned, because no such evidence was admitted over plaintiff's objection. A careful review of the transcript filed in this cause shows that in the trial of the cause substantially all of plaintiff's objections to the introduction of evidence by defendant were sustained. No evidence was admitted over plaintiff's objection. On two occasions plaintiff objected after the witness had answered the question and after the evidence objected to was in the record, but no motion was made to strike out the answers previously made by the witness. Respondent in effect now concedes that no "incompetent, irrelevant, immaterial, improper, prejudicial and illegal evidence offered by defendant" was received "over the objection" of plaintiff. The record disclosed no error by the trial court in admitting any evidence over the objection of the plaintiff. No evidence was so admitted. Respondent, however, contends that the court erred in admitting incompetent and prejudicial evidence which was not objected to; and that for such error the trial court properly granted plaintiff a new trial. We shall subsequently set out the evidence referred to. In view of the position taken by respondent it is hardly necessary for us to point out that ground 8 of the motion for a new trial, upon which the court based its order granting a new trial, is so general that the order granting the new trial fails to comply with the statutory requirement that the ground or grounds upon which a new trial is granted shall be specified of record. Laws 1943, p. 388, Sec. 115, Mo.R.S.A. § 847.115; Johnson v. Kansas City Public Service Co., Mo.Sup., 228 S.W.2d 796. The ground stated is too general to furnish any information to the parties or to this court concerning the real basis of the trial court's action. Accordingly, under Rule 1.10 of this court, respondent has the burden of supporting the correctness of the court's order. Respondent has assumed that burden. "This burden is met if the respondent demonstrates that the motion for a new trial should have been sustained on any of the grounds specified in the motion." Johnson v. Kansas City Public Service Co., supra, [228 S.W.2d 797] and cases there cited. In this case, apparently, respondent seeks to support the correctness of the trial court's action under Laws 1943, p. 388, Sec. 538 115, Mo.R.S.A. § 847.115, which provides: "A new trial may be granted for any of the reasons for which new trials have heretofore been granted." Respondent points to matters appearing in the record, not raised in the motion for a new trial and not assigned by the trial court as the ground upon which the motion was in fact sustained and the new trial granted. See, Ponyard v. Drexel, Mo.App., 205 S.W.2d 267, 270(1,2) and cases there cited. The evidence which respondent contends was erroneously admitted was offered and received in evidence without objection. It was offered in support of defendant's pleaded defense that the driver of the taxicab in question at the time and place mentioned was not the agent and servant of defendant, but was an independent contractor. This evidence tended to show that the driver of the taxicab, which struck and injured plaintiff, did not work for defendant on the day plaintiff received his injuries; that this driver had never worked for defendant; that defendant was engaged in the business of renting cabs to drivers who had taxicab licenses; that the rental rate was $5.25 for eleven hours use of the cab; that the cab in question was rented to the driver in question on the day that plaintiff was injured; that drivers were required to pay the full rental charge regardless of the amount taken in in fares; that defendant received calls for cabs on defendant's telephones and referred the calls to the various drivers renting cabs from it; that the drivers were not required to answer the calls, unless they desired to do so; that defendant did not attempt to direct the drivers who rented its cabs; that they could drive any place they pleased; and that defendant maintained the cabs against ordinary wear and tear and also furnished oil, but the drivers furnished the gasoline for the operation of the cabs and were supposed to pay for all damages to the cabs while in their possession. Evidence on behalf of both the plaintiff and defendant showed that one of defendant's cabs operated by one of its "drivers" (Warren Shannon) was involved in the collision in question; that the cab carried the name "Allen Cab Company No. 117" on the cab; and that a "sticker" showing Public Service Permit No. 516, was stuck on the window of the cab. On the cross-examination of one of defendant's witnesses, plaintiff showed that the cab was operated pursuant to a permit from the Board of Public Service of the City of St. Louis, which permit had been applied for and was issued to the defendant; and that such a permit was in force on the day plaintiff was injured. Respondent says that "the trial judge sustained plaintiff's motion for a new trial because the court felt it was prejudicial to the plaintiff to have admitted evidence relating to an alleged independent contractor relationship between the defendant Cab Company and the driver who was operating the cab at the time it caused plaintiff's injury. On the argument for the motion of new trial, counsel for the plaintiff brought to the trial court's attention the provision of ordinances of the City of St. Louis relating to operation of taxicabs under permits of the St. Louis Board of Public Service which in effect, makes them common carriers. * * * The ordinances also provide that every applicant for the permit referred to shall provide liability insurance or an indemnity bond to cover liability for torts. * * * The trial judge recognized the existence and validity of these ordinances and took them into account in ruling on the new trial. The court considered the admission of evidence relating to an independent contract relationship erroneous, even though it is apparent that there is no objection in the record relating to any such evidence. * * * The ordinances were not identified nor were they submitted in certified form. Nevertheless, the trial court recognized their validity and took them into account in its ruling." Respondent insists that "the trial court was entitled in its discretion to judicially notice and consider the ordinances of the city of St. Louis regulating the issuance of such franchises, as a basis for its ruling the motion for a new trial"; and that the trial court had a right and a duty to grant 539 plaintiff a new trial on account of the admission of defendant's evidence in support of the independent contractor defense. Respondent's theory is that appellant was operating as a common carrier by virtue of a public franchise; that it could not avoid tort liability nor abrogate its responsibilities under its franchise by operating its cabs through an independent contractor; and that, in view of said city ordinances, it should not have been permitted to show that the operator of the cab in question was an independent contractor, since such relationship constituted no defense to liability for the contractor's negligence in the performance of appellant's duties as a common carrier. Respondent cites Cotton v. Ship-By-Truck Co., 337 Mo. 270, 85 S.W.2d 80, 84, and insists that the trial court "properly considered error apparent in the record even though no proper objection was made," citing Supreme Court Rule 3.27 and 1.28 and De Maire v. Thompson, 359 Mo. 457, 222 S.W.2d 93. The ordinances now relied upon were not pleaded by plaintiff, nor presented to the trial court in the trial of the cause. They were not offered in evidence at any time. The evidence now complained of was not objected to on any ground and, particularly, not on the ground of the ordinances now referred to. No attack was made on defendant's pleaded defense based upon the independent contractor relationship and there was no suggestion at the trial that such relationship was not a valid and sufficient defense. The cause was tried on the theory that it was a valid defense. It is not now contended that the admission of the evidence in question was assigned as error by any provision of plaintiff's motion for a new trial. In such situation it is clearly apparent that, if respondent is correct in his statement, the motion for a new trial was sustained upon a ground that arose as "an afterthought" long after the trial of the cause. The trial court could not (on account of the admission of said evidence) legally grant a new trial on the basis of any provision in the motion for a new trial which did not mention or refer to such evidence. It is will settled that an objection to the admissibility of evidence must be specific and contain the proper ground of its exclusion, else the trial court will not be convicted of error for overruling it. Johnson v. Kansas City Rys. Co., Mo.App., 233 S.W. 942, 943. It is conceded that the evidence now questioned was admitted without objection and in support of a pleaded defense. The trial court did not err in admitting this evidence. The cause was tried on the theory that the evidence was admissible and plaintiff could not thereafter complain. Marr v. Marr, 342 Mo. 656, 117 S.W.2d 230, 231; Schanbacher v. Lucido Bros. Groc. Co., Mo.App., 93 S.W. 1076, 1081. The parties recognized that the alleged independent contractor relationship presented a valid defense. The record must be reviewed on the same theory. Brunswick v. Standard Accident Ins. Co., 278 Mo. 154, 213 S.W. 45, 46, 7 A.L.R. 1213; Moffett v. Butler Mfg. Co., Mo.Sup., 46 S.W.2d 869, 871. Relevant evidence received without objection may properly be considered, although it would have been excluded on proper objection. Crampton v. Osborn, 356 Mo. 125, 201 S.W.2d 336, 340, 172 A.L.R. 344. Even hearsay evidence admitted without objection has been considered. Miller v. Ralston Purina Co., 341 Mo. 811, 109 S.W.2d 866, 869; DeMoulin v. Roetheli, 354 Mo. 425, 189 S.W.2d 562, 565; Reeves v. Thompson, Mo.Sup., 211 S.W.2d 23, 27; Lanahan v. Hydraulic-Press Brick Co., Mo.App., 55 S.W.2d 327, 332; Herrin v. Stroh Bros. Delivery Co., Mo.App., 263 S.W. 871, 875. A rule of evidence not invoked is waived. DeMoulin v. Roetheli, supra. We, therefore, hold that the trial court committed no error in the trial of the cause for which it could grant a new trial and we further hold that, since the verdict was returned and judgment entered on February 9, 1949, the court had no jurisdiction on May 9, 1949 to grant a new trial on its own initiative on matters not preserved in the motion for a new trial. Laws 1943, p. 389, Sec. 119, Mo.R.S.A. § 847.119. The trial court's order granting a new trial should be reversed and the verdict 540 and judgment for defendant should be reinstated. It is so ordered. CONKLING, P.J., and HYDE, J., concur. HOLLINGSWORTH, J., not voting because not a member of the court when the cause was submitted.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519372/	232 S.W.2d 926 (1950) TRACY et al. v. SLUGGETT et al. No. 41644. Supreme Court of Missouri, Division No. 1. September 11, 1950. Motions for Rehearing or to Transfer to Denied October 9, 1950. 928 John T. Sluggett, St. Louis, pro se and attorney for Elizabeth Sloan Delany and John T. Sluggett III. Stephen C. Rogers, St. Louis, for appellants Margaret Watson and Marie Schaefer. Richard D. Gunn, St. Louis, guardian ad litem and next friend for appellant Elizabeth Martin, a minor. J. L. London, St. Louis, for respondents Edwin F. Tracy and Mary K. Tracy. Walther, Hecker, Walther & Barnard, St. Louis, for respondent Walter L. Roos, guardian of the Person and Estate of Elizabeth S. Delany. Motions for Rehearing or to Transfer to Court en Banc Denied October 9, 1950. VAN OSDOL, Commissioner. Action in equity to cancel a trust indendure executed by Elizabeth Sloan Delany, to quiet title, and for other relief. The action was instituted by Edwin F. Tracy, a fourth cousin of Elizabeth Sloan Delany, and by his mother, Mary K. Tracy, against John T. Sluggett III, personally and as trustee under the indenture; and against Marie Schaefer, Margaret Watson, and Elizabeth Martin, a minor, daughter of Marie Schaefer, beneficiaries. The donor in the indenture, Elizabeth Sloan Delany, alleged to be of unsound mind, was also joined as a party defendant as was John T. Sluggett, an attorney, who had supervised the preparation of the trust instrument and who has appeared and filed answer for defendant Elizabeth Sloan Delany. Walter L. Roos, who had theretofore been appointed guardian of the person and curator of the estate of Elizabeth Sloan Delany, was granted leave to intervene. The trust instrument, which plaintiffs seek to cancel, conveyed and assigned to the trustee realty and personalty of alleged value in excess of $300,000. The case involves questions of the power of a court of equity to act in matters involving a person and the property of a person of unsound mind. Plaintiffs alleged in their petition that Elizabeth Sloan Delany was of unsound mind and incapable of managing her affairs and had been so adjudged by the Probate Court of the City of St. Louis; that the Probate Court had appointed Walter L. Roos guardian, but an appeal had been taken to the Circuit Court, wherein, upon a trial de novo a jury found Elizabeth Sloan Delany to be of unsound mind; that defendant John T. Sluggett, purporting to act for Elizabeth Sloan Delany, had indicated he would file a motion for a new trial and perfect an appeal from the ensuing judgment; that the trust instrument is void by reason of the mental incapacity of Elizabeth Sloan Delany, and by reason of the undue influence and duress exercised upon her by defendants Marie Schaefer and Margaret Watson; that the trust instrument constitutes a cloud on the title to real property belonging to Elizabeth Sloan Delany; that defendant John T. Sluggett, attorney, was only purporting to act for Elizabeth Sloan Delany in the insanity proceeding and was in reality acting for and on behalf of defendants Marie Schaefer, Margaret Watson and Elizabeth Martin; that defendants John T. Sluggett and John T. Sluggett III (father and son) have acted for the benefit of the trustee and defendants Marie Schaefer, Margaret Watson and Elizabeth Martin rather than for the benefit of Elizabeth Sloan Delany; that plaintiff have reasonable cause to believe that defendants may sell and convey the property of Elizabeth Sloan Delany, and her estate may be dissipated and squandered; and that plaintiffs have instituted the action primarily for the benefit and protection of Elizabeth Sloan Delany and for the preservation of her property, and, secondarily, for themselves and others similarly situated, that is, "on behalf of other heirs who have an inheritable and contingent interest" in the property, particularly the real estate of Elizabeth Sloan Delany. Plaintiffs prayed for the cancellation of the trust indenture; for an order enjoining defendants from transferring the property or interfering with the person of Elizabeth 929 Sloan Delany; for the appointment of a receiver or guardian ad litem to recover and protect the property, and for orders of accounting, and restoration of other property which defendants have heretofore acquired during the mental incompetency of Elizabeth Sloan Delany; and for a decree determining the title to the real property to be in Elizabeth Sloan Delany, free of all claims of other defendants; and for other and full and complete relief. The intervener, Walter L. Roos, adopted certain paragraphs of plaintiffs' petition, and further alleged that Elizabeth Sloan Delany, because of her condition, should have the protection of a guardian of her person and property; that "a cloud has been cast upon the status" of the intervener; and that he has heretofore instituted actions to recover her personalty. The intervener prayed the court to hold the trust instrument void ab initio, and to declare him to be the duly appointed guardian and exclusively in charge of the person and property of Elizabeth Sloan Delany under the supervision of the Probate Court of the City of St. Louis; that the court make such orders as are necessary for her protection and for the conservation of her property; and that he be directed to recover all of her properties, real and personal, and wherever situate. Having heard the evidence, the trial court found it had jurisdiction because of and under and by virtue of Sections 1684 and 2100, R.S. 1939, Mo.R.S.A. §§ 1684, 2100, as well as by virtue of the inherent jurisdiction of a court of equity over persons of unsound mind; that May 16, 1947, Elizabeth Sloan Delany had been adjudged as of unsound mind by the Probate Court, and intervener Walter L. Roos appointed guardian; that Elizabeth Sloan Delany had been of unsound mind for at least three years prior to the adjudication of May 16th; that defendants have acted in consort with each other in depriving Elizabeth Sloan Delany of her property; that the trust instrument is not the instrument of Elizabeth Sloan Delany but of defendants Marie Schaefer and Margaret Watson; that the instrument is unconscionable and the result of the concerted efforts of defendants Marie Schaefer and Margaret Watson to obtain the control, use and benefit of the property of Elizabeth Sloan Delany; that intervener Walter L. Roos has all the powers and duties of a guardian, and a sufficient interest in the subject matter to permit his intervention in the cause; that a large part of the estate of Elizabeth Sloan Delany has been dissipated; and that ancillary orders theretofore entered by the Circuit Court were proper. The trial court ordered, in part, that none of the defendants other than Elizabeth Sloan Delany has any interest in her property; that the trust indenture be declared void; that conveyances (executed by Elizabeth Sloan Delany) of real property in the State of Michigan be declared void, and surrendered by John T. Sluggett III for cancellation, he to execute a reconveyance of the property to Elizabeth Sloan Delany; that defendants Marie Schaefer and Margaret Watson return all moneys and other property received by them during a three-year period prior to May 16, 1947, and to the time of the rendition of the judgment; that temporary restraining and eviction orders, theretofore entered, be made permanent; that in order to avoid a multiplicity of suits the court should assume jurisdiction of other actions pending in the Circuit Court of the City of St. Louis, with the view of according the parties complete relief; and that the court retain jurisdiction for such further action as the court might deem proper in order to collect and preserve the property of Elizabeth Sloan Delany. Elizabeth Sloan Delany is the childless widow of John O'Fallon Delany who died in 1930. When the proceeding of inquiry into her sanity was instituted in 1947, she was 89 years old. Her property then consisted of the Delany residence (and valuable personalty therein) on Lindell Boulevard, a rental building at the southwest corner of the intersection of Tenth and Locust Streets in St. Louis, and parcels of land and summer cottages thereon at Douglas, Michigan. Mrs. Delany's nearest relatives are cousins of the second degree Margaret (Smith) Watson, defendant, was first employed by Mrs. Delany as a cook in 1917 or 1918, and has continued to serve 930 in various capacities in the Delany home. When Margaret first came to the Delany home, she brought with her a small daughter, Marie Smith, child of a former marriage. Marie was then four years old. Mrs. Delany became fond of Marie, who was treated as a member of the Delany family; however, although urged to do so by Margaret and Marie, Mrs. Delany always refused to adopt Marie. Marie married one Martin in 1931; and Elizabeth Martin, defendant, namesake of Mrs. Delany, was born to the marriage. Later, the Martins were divorced. Three subsequent marriages of Marie were also dissolved by divorce. At and for some time prior to the trial of the instant case, Marie was married to August Schaefer. An inquiry into the sanity of Mrs. Delany was instituted May 9, 1947, in the Probate Court of the City of St. Louis, by one Kathleen Franciscus. The Probate Court found Mrs. Delany was of unsound mind and incapable of managing her affairs, and appointed Walter L. Roos, intervener-respondent herein, guardian of her person and estate. John T. Sluggett, defendant, acting as attorney for Mrs. Delany, perfected an appeal to the Circuit Court of the City of St. Louis, wherein, in Division No. 4, December 1, 1947, Judge Robert L. Aronson presiding, the case was tried before a jury; but a mistrial was declared. The jury could not agree upon a verdict. January 8, 1948, Mrs. Delany purportedly executed the trust indenture, more particularly referred to infra. April 5, 1948, a second trial was had before a jury in Division No. 5 of the Circuit Court, Judge Francis E. Williams presiding. The jury returned a verdict, nine jurors concurring, finding Mrs. Delany was of unsound mind and incapable of managing her affairs. Upon appeal, the St. Louis Court of Appeals reversed the ensuing judgment and remanded the cause. See In re Delany, Mo.App., 226 S.W.2d 366. Initially, it is contended by defendants-appellants that plaintiffs have no interest in the subject matter, and may not maintain the action. It has been held that one who has no interest in land may not maintain an action under the provisions of Section 1684, supra, to ascertain and determine title. Shelton v. Horrell, 232 Mo. 358, 134 S.W. 988, 137 S.W. 264. It has also been said that heirs apparent or expectant heirs of a living person have no fixed or vested interest in the property of such person. State ex rel. McClintock v. Guinotte, 275 Mo. 298, 204 S.W. 806; Wass v. Hammontree, Mo.Sup., 77 S.W.2d 1006. However, in this extraordinary case we have the most extraordinary charges stated in the pleadings, which charges, if true, call for the action of a court of equity. At common law the conscience of a court of chancery could be invoked in the interest of the insane. Now, if the allegations of the petition are true, Mrs. Delany is the party primarily interested, and the public at largethe sovereign people of the State of Missourihave an interest in Mrs. Delany and in her affairs. In re Estate of Connor, 254 Mo. 65, 162 S.W. 252, 49 L.R.A.,N.S., 1108; State ex rel. Paxton v. Guinotte, 257 Mo. 1, 165 S.W. 718, 51 L.R.A.,N.S., 1191, Ann.Cas.1915D, 658; Ex parte Higgins v. Hoctor, 332 Mo. 1022, 62 S.W.2d 410. It would seem that plaintiffs' institution of the action and the trial court's assumption of jurisdiction in Mrs. Delany's behalf was tantamount to the commencement of an action be next friend. We are not here concerned with a mercenary motive which may have prompted plaintiffs to institute the action, but we are greatly interested in Mrs. Delany's welfare and the preservation of her estate. In re Estate of Connor, supra. Probate courts have no purely equitable jurisdiction. State ex rel. Baker v. Bird, 253 Mo. 569, 162 S.W. 119, Ann.Cas.1915C, 1353; In re Estate of Connor, supra. The instant case seems to be one which peculiarly appeals to a court of equity. It is safe "to say that at common law the insane were the wards of chancery. It is also safe to say that, unless the courts exercising common-law jurisdiction in this state have been shorn of this power by statute, they likewise possess such power. It is true that by the creation of probate court the general control of the insane has been transferred from the court of equity to these courts, but it does not follow 931 from this that all equitable cognizance over matters relating to lunatics and their interests was thus taken from the courts of equity. Probate courts are not courts of equity, and whilst they, in the performance of the duties devolved upon them, often administer according to equitable principles, yet of matters purely equitable they have no jurisdiction." In re Estate of Connor, supra [254 Mo. 65, 162 S.W. 255]; Primeau v. Primeau, 317 Mo. 828, 297 S.W. 382. Could it be truly said that, when the probate court by reason of its limited powers cannot adequately act, a person of unsound mind and his consequently insecure estate cannot be made secure and fully protected by the powers of a circuit court? The lunacy proceeding instituted in the Probate Court was regular. In re Delany, supra. The appeals successively perfected to the Circuit Court and to the St. Louis Court of Appeals suspended the jurisdiction of the Probate Court, 44 C.J.S., Insane Persons, § 33, at page 95, although we are not prepared to say the appointed guardian was wholly without power to invoke the action of a court in the protection of the ward and her estate pending the appeal. And it would seem to us the guardian was entitled to intervene in the instant action and ask for a circuit court's declaration of his status during the pendency of the appeal. Section 1129, R.S.1939, Mo.R.S.A. § 1129. In our opinion, the pendency of the insanity proceeding does not deprive the Circuit Court of jurisdiction of the instant action brought for the purpose of invoking equitable powers in the interest of the alleged incompetent. The Probate Court, of limited and with no purely equitable powers and, in the circumstances of the appeal from the judgment in the insanity proceeding, with suspended powers, does not have exclusive jurisdiction. In the situation, the Circuit Court, whose adequate and inherent powers may be invoked in the interest of one who is insane, is of service to the ends of protecting the person and property of Mrs. Delany, and of doing full and complete justice. Primeau v. Primeau, supra; In re Estate of Connor, supra; and see generally Lommason v. Washington Trust Co., 140 N.J.Eq. 207, 53 A.2d 175; Creech v. McVaugh, 140 N.J.Eq. 272, 54 A.2d 443; Jordan v. McGrew, 400 Ill. 275, 79 N.E.2d 622; Lykes Bros. Florida Co. v. King, 125 Fla. 101, 169 So. 595; Sewell v. Benson, 198 Ark. 339, 128 S.W.2d 683; Horn v. Sankary, Tex.Civ.App., 161 S.W.2d 156; Hax v. O'Donnell, 234 Mo.App. 636, 117 S.W.2d 667. It is not by reason of the sole allegation of Mrs. Delany's incompetency, as such, that the Circuit Court could assume jurisdiction. The original jurisdiction of a lunacy proceeding is in a probate court. Mrs. Delany has not been formally (and finally) adjudged of unsound mind by probate court proceeding. In re Delany, supra. Appellants have reminded us that Melissa Connor and Louise A. Primeau had been formally adjudged insane by respective probate courts in the cases of In re Estate of Connor, supra; and Primeau v. Primeau, supra. Appellants urge the fact that Mrs. Delany's incompetency has not been "thus fixed" differentiates the instant case from the Connor and Primeau cases, in which cases, appellants say, the adjudications of insanity were the bases for the assumption of jurisdiction by courts of equity. But a court of equity may in appropriate cases pursuant to its inherent general powers protect the property of persons of unsound mind who have not been judicially "found" non compos mentis. Vol. IV, Pomeroy's Equity Jurisprudence, 5th Ed., § 1314, p. 887; Jones v. Lloyd, 18 L.R.Eq. (Eng.) 265; Beall v. Smith, 9 L.R.Ch. (Eng.) 85; Light v. Light, 53 Eng.Rep. 631. Such appropriate cases are those calling for the exercise of the general jurisdiction of equity "not by reason of the incompetency, but notwithstanding the incompetency." Vol. IV, Pomeroy's Equity Jurisprudence, supra, p. 888. Independently "of authority, let us look at the reason of the thing. If this were not the law, anybody might at his will and pleasure commit waste on a lunatic's property or do damage or serious injury and annoyance to him or his property, without there being any remedy whatever. In the first place, the Lords Justices or the Lord Chancellor are 932 not always sitting for applications in lunacy. In the next place, if they were, everybody knows it takes a considerable time to make a man a lunatic by inquisition * ." Jessel, M.R., in Jones v. Lloyd, supra. We consider it pertinent to set out the substance of the trust indenture. By the trust indenture, dated January 8, 1948, Elizabeth Sloan Delany, designated as the "Grantor" in the instrument, irrevocably assigns, transfers and conveys her real estate and personalty, as listed in an attached "Exhibit A," unto defendant John T. Sluggett III in trust, the trustee to have full power and authority to manage and control the trust estate and to sell, exchange, lease or otherwise dispose of all or any part of the estate upon such terms as he may see fit, and to invest and reinvest all or part of the estate in such securities or other property as he may in his absolute discretion select. The trustee may invest any part of the trust funds in property situate outside the State of Missouri. The trustee is authorized to pay defendant John T. Sluggett a reasonable fee for services rendered or to be rendered to the grantor in connection with the proceeding theretofore instituted in the Probate Court, the trustee to have the sole right to fix and determine the amount of the fee. The trustee is authorized to pay the claim of one Clark for services rendered in painting the exterior of the Delany residence, an action on the claim being then pending in the Circuit Court. The trustee is further authorized to pay the grantor's funeral expenses out of the corpus of the trust estate in such amount as in his sole judgment shall be fair and reasonable. The trustee is authorized to pay necessary expenses incurred by him in the management of the trust estate, including compensation to the trustee, necessary attorney fees, employees' wages, and taxes; maintenance, improvements and repairs on the Delany residence; and is to pay the remaining net income in equal monthly installments to the grantor. If such net income proves insufficient to pay the grantor $500 per month, the trustee is authorized to encroach upon the principal or corpus of the trust estate in order to pay any deficiency necessary to provide the grantor with at least $500 per month so long as she shall live. Upon the death of the grantor her interest in the trust shall cease and terminate, the trustee to thereafter hold the trust estate in trust for defendant Marie Schaefer and her mother, defendant Margaret Watson, each to receive one half of the net income of the trust estate so long as each shall live; but if the net income shall not amount to $1,000 per month so that each may receive $500 per month, the deficiency may be made up out of the principal of the estate. Upon the death of either, the interest of such decedent shall cease and the survivor shall be entitled to receive the entire net income; but should such income be less than $500 per month, the deficiency may be made up out of the principal of the trust estate. The trustee is further authorized to encroach upon the principal in the event of any emergency, the trustee to advance such sum out of the principal for the benefit of the beneficiaries as he may deem proper in the circumstances of the emergency. After the death of Marie and Margaret, the trustee shall hold the trust estate for the benefit of Elizabeth Martin, the trustee to use so much of the net income as he may deem necessary for her education, maintenance and support until she attains the age of twenty-one years, at which time the trustee is to pay over to Elizabeth one third of the trust estate. The instrument further provides the trustee shall pay over one half the trust estate to Elizabeth when she attains the age of twenty-six years, and the rest of the trust estate shall be paid over by said trustee to Elizabeth when she attains the age of thirty-one years. Upon the death of Elizabeth the trust shall terminate, if not terminated prior to that time, and the trust estate is to become a part of her estate. Provision is made in the event Elizabeth died before both Marie and Margaret. In that event, upon the death of the survivor (Marie or Margaret), the trust estate is to become a part of the estate of 933 the survivor to be distributed according to the survivor's last will, or to her next of kin. Neither the principal nor the income shall be subject to the debts of Marie, Margaret or Elizabeth, nor shall the same be subject to seizure by their creditors, nor shall Marie, Margaret or Elizabeth have the power to sell, encumber, anticipate or dispose of the principal or income thereon. In the event of the death of the trustee prior to the termination of the trust, his father, defendant John T. Sluggett, shall become successor trustee with powers commensurate with those given the son as trustee. In the event of the death of such successor trustee, a trustee successor is to be designated by the Circuit Court. If the grantor should be adjudicated of unsound mind, then and in such event the right of the grantor to receive the income from the trust estate shall cease and terminate, and the trustee shall have the sole right to determine the manner and amounts in which the income or principal shall be disbursed and paid for the support, maintenance and benefit of the grantor; and neither the trust estate nor any income therefrom shall be or become a part "of such guardianship estate," except, however, that the said trustee may pay to a guardian appointed by such Court such amounts as the trustee in his sole discretion may deem proper for the safety and protection of the grantor. February 6, 1948, Mrs. Delany conveyed her land in Michigan to defendant John T. Sluggett III, and as of the same date defendant John T. Sluggett III conveyed the Michigan property to John T. Sluggett III, trustee. John T. Sluggett III, twenty-three years old, a high school graduate, had three years "pre-legal" in Washington University and two years in law schools, and has continued his study of law under his father's supervision since July 15, 1947. He had worked in a clerical capacity some nine months. He has had no experience in handling securities or real estate. While pursuing his studies of the law under his father's direction, the son has assisted the work of the father's office. Before the trust indenture was executed John T. Sluggett III had taken an inventory of the personalty contained in the Delany residence; and prior to the entry of temporary restraining orders, was planning to sell the Michigan property. In April 1948, after the second trial de novo upon appeal from the judgment in the insanity proceeding, Walter L. Roos, intervener, had called at the Delany home, but was refused admittance. June 14, 1948, and November 12, 1948, ancillary to the instant action, the Circuit Court issued temporary orders restraining defendants, other than Mrs. Delany, from selling or otherwise disposing of Mrs. Delany's property, and from interfering with Walter L. Roos in the performance of his duties as guardian. June 17, 1948, the Circuit Court ordered Walter L. Roos, as guardian, to care for and protect the person of Mrs. Delany, and to take charge of and manage her properties under the supervision of the Circuit Court. July 9, 1948, the Circuit Court issued its order evicting defendants Marie Schaefer, Gus and Elizabeth Martin from the Delany residence. Did Mrs. Delany have sufficient mental capacity at the times she signed the trust indenture and the conveyances of the Michigan property, and at the times she gave over moneys (represented by various checks, more particularly mentioned infra) to understand the nature of the particular transactions; and did she, with such understanding, voluntarily enter into and consummate the same? McCoy v. McCoy, Mo.Sup., 227 S.W.2d 698; Edinger v. Kratzer, Mo.Sup., 175 S.W.2d 807; Lastofka v. Lastofka, 339 Mo. 770, 99 S.W.2d 46. The burden of proof on the issues is upon plaintiffs. And the burden must be sustained by clear, cogent and convincing evidence. Acts of Mrs. Delany with reference to her property, and the testimony of witnesses, which testimony the trial chancellor obviously must have believed, clearly show Mrs. Delany is of unsound mind. December 17, 1942, Mrs. Delany executed a deed of trust on her rental property at the intersection of Tenth and Locust Streets 934 in St. Louis to secure the payment of $12,000. The instrument was released September 16, 1943. September 3, 1943, Mrs. Delany had executed a deed of trust on the rental property to secure the payment of $25,000. The instrument was released October 25, 1945. The two above mentioned encumbrances were procured through Cornet & Zeibig, which firm, having been the agent of Mrs. Delany for several years, did not desire to thereafter act for Mrs. Delany in any further increase of the loan; a representative of the firm was of the opinion Mrs. Delany, in 1945, was not competent mentally to transact business. In 1937, the firm had negotiated a sale of Mrs. Delany's piece of property "over on Seventh and Cass." In the years 1942 to 1945, she was unable to recall the transaction. Mrs. Delany's account was closed in late 1945, the firm issuing its check for a balance of $2,160.99 due Mrs. Delany. The check bears the endorsement of Mrs. Delany and Marie S. Spencer (now Marie Schaefer). October 10, 1945, Mrs. Delany executed a deed of trust on the rental property to secure the payment of $45,000. The instrument was released March 5, 1947. February 18, 1947, Mrs. Delany had executed a deed of trust on the rental property to secure the payment of $70,000. There was evidence tending to show the loan was procured at the original solicitation of August Schaefer, husband of Marie. The net proceeds of this loan amounting to $21,993.85 were paid to Mrs. Delany by check of Hiemenz Realty Company drawn on the United Bank and Trust Company of St. Louis. The check was purportedly endorsed by Mrs. Delany, Margaret Watson and Marie S. Schaefer, the signatures being warranted by Hiemenz Realty Company. A teller of the United Bank and Trust Company testified that defendants Margaret Watson and Marie Schaefer received the entire proceeds of the check in currency. At the trial before Judge Aronson in December 1947, Mrs. Delany had said she had received nothing on the check. She did not recall the circumstances of the loan transaction. She said, "I suppose I haven't been very well and I haven't attended to those affairs." She testified she had made no gift to Margaret or Marie during the year. Honorable Glendy B. Arnold, Judge of the Probate Court of the City of St. Louis, testified it was principally upon the testimony of Margaret Watson, defendant herein, that he has found Mrs. Delany to be of unsound mind. Margaret had testified before Judge Arnold that Mrs. Delany was to a very considerable extent under the domination of Marie; that Marie had the habit of drinking to excess and had assaulted Mrs. Delany; that "when the old lady wouldn't do what she (Marie) wanted her to do she made an attack on her and she had over a long period signed checks that Marie would present to her for various sums." (September 15, 1945, Cornet & Zeibig had issued a $600 check payable to Mrs. Delany. The check bears the endorsements of Mrs. Delany and "A. J. Schaefer." November 26, 1946, Hiemenz Realty Company had issued a $1,500 check payable to Mrs. Delany. Marie Schaefer used the check to buy a ring costing $1,350, and received the remainder of the proceeds of the check in cash. Mrs. Delany's bank balance for the month of November 1946 was $173.) Margaret had further testified Marie had secured a loan "of some twenty thousand dollars * * the proceeds of that loan were divided between Marie and Margaret"; Mrs. Delany "was out of funds" at the time. Margaret, testifying before Judge Arnold, further said Mrs. Delany's memory was very bad, defective; and Margaret expressed the opinion that, from her long observation of Mrs. Delany, she was of unsound mind. Subsequently, Judge Arnold visited the Delany home where Margaret, in the presence of Mrs. Delany, detailed the stormy history of the household told of the "scenes that had transpired in the home, the troubles with Marie." In this connection we shall state generally the conditions obtaining in the Delany household throughout the years, as disclosed by the testimony of numerous witnesses among whom were the former employees at the Delany residence. 935 Mrs. Delany in former years was generous to her relatives, several of whom visited and lived in her home. In the summer she took her relatives and friends, and Margaret and Marie for vacation periods in Michigan. Mrs. Delany defrayed all of the expenses. As time when on Marie developed antagonism toward Mrs. Delany's relatives and friends. Ernestine Kimbrew Byrd, a cook at the Delany home from 1929 to 1944, testified she had heard Mrs. Delany ask Marie out of the house. Mrs. Delany feared both Margaret and Marie and didn't want to be left alone with them. Mrs. Delany locked herself in her room a number of times. Margaret and Marie would tell Mrs. Delany that her people did not care for her. "Marie would come in there and fight and try to run Mrs. Delany's relatives out." Marie, not infrequently, assaulted Mrs. Delany. The troubles in the Delany home were also recounted by Dalton Cooley, who served as a chauffeur and general house employee from 1930 to 1944. When he left Mrs. Delany's service in 1944, her mind "wasn't as good as it used to be." The witness also testified of Mrs. Delany's forgetfulness including her failure to recall the sale of her property "over on Seventh and Cass." In the last seven years he worked there, he heard Margaret and Marie plotting how they would get money out of Mrs. Delany. He saw Marie strike Mrs. Delany, "upon more than one occasion." No defendant, or witness for defendants, took the witness stand to refute the testimony of these witnesses relating to conditions in the Delany home and the relations of defendants Margaret and Marie with Mrs. Delany. There was evidence introducedtestimony of physicians who had treated Mrs. Delanythat she suffered senile dementia, a progressive disease. According to a physician, who had treated her in October and November 1948, Mrs. Delany manifested "definite evidences" of the disease. In his opinion she was not responsible for any of her acts; and had not been lucid at any time within the last five years. Another physician, who has treated her since the latter part of October 1948, testified she suffers cerebral arteriosclerosis of long duration. She has typical delusions and hallucinations. Physicians, witnesses for plaintiffs and defendants, specialists who had interviewed her for the purpose of testifying, were not in harmony in their views relating to the question of the mental condition of Mrs. Delany. Likewise, numerous lay witnesses were of contrary opinions on the question. Mrs. Delany had at times quite accurate recollection of events of years ago; however, her memory of the circumstances and her comprehension of the effect of more recent occurrences and transactions, it seems, were almost wholly obscured. For example, she seems to have no recollection of the increases of the encumbrances on her rental property. Nor does she recollect the disposition of the net proceeds of the $70,000 loan. We regard the facts of her lack of knowledge or recollection of the increases of her loans and of the disposition of the net proceeds (nearly $22,000) of the $70,000 loan, which loan was made at a time when she was (the evidence shows) in great need of cash, as evidence of great weight in tending to show her progressive dementia had so affected her that she had no real comprehension of or will to determine what she did, and was devoid of all responsibility for her acts. Honorable Robert L. Aronson, who presided as judge at the first trial of the appeal of the insanity proceeding, testified relating to his own opinion of the condition of Mrs. Delany's mind. He had interrogated her and observed her on the witness stand in the trial before him. He told of many of the passages of her testimony as bases for his opinion of her unsoundness of mind. Likewise, Honorable Glendy B. Arnold, judge of probate, as we have said, recounted the testimony of Margaret Watson, defendant, who was a witness in the insanity proceeding. In such proceeding, as stated, Margaret testified Mrs. Delany was of unsound mind. Margaret did not testify in the trial of the instant action; in fact, defendant John T. Sluggett is the only defendant who testified. He first met Mrs. Delany in "early" June 1947, at the instance of August Schaefer and wife Marie. August "had been a client of mine 936 some years before." (Defendant John T. Sluggett, as attorney for Mrs. Delany, took an appeal June 3, 1947, from the Probate Court's judgment rendered in the insanity proceeding.) Although, as stated, John T. Sluggett first met Mrs. Delany in early June 1947, Mrs. Delany testified at the trial before Judge Aronson in December 1947 that Mr. Sluggett had "conducted my business for me" for several years. Defendants-appellants greatly rely upon the recent case of McCoy v. McCoy, supra, 227 S.W.2d 698. In the McCoy case the trial chancellor had found for defendants on the issues. This court, in the McCoy case, fulfilled its duty in weighing the evidence and determining its value with the view of reaching a correct conclusion; however, the rule of deference to the findings of the trial chancellor was not ignored. Defendants-appellants further stress the cases of Edinger v. Kratzer, supra, 175 S.W.2d 807, and Hamilton v. Steininger,350 Mo. 698, 168 S.W.2d 59, in which cases the trial chancellors had found for plaintiffs on the issues of mental capacity and undue influence, and this court reversed the judgments. The rule of deference to a trial chancellor's findings is limited to the conditions of the testimony in each particular case. McCoy v. McCoy, supra; Daudt v. Steiert, Mo.Sup., 205 S.W. 222. In the Edinger case this court, having a regard for the rule of deference, went to great pains in examining the evidence, its competency, weight and value, and concluded the weight of the competent credible evidence was strongly against the chancellor's findings. In the Hamilton case, upon careful analysis of the evidence and giving due regard to the rule of deference, this court held the evidence was insufficient in quantity and quality to sustain the trial chancellor's findings. Defendants-appellants complain of "relevant, competent and material evidence" excluded, and of error in admitting evidence of circumstances which were so remote as to have no probative value upon the issues. In attempting to fulfill our duty to carefully examine the whole record in an endeavor to reach correct conclusions, we have considered such rejected evidence as we have deemed admissible, and have ignored evidence we have deemed inadmissible. Edinger v. Kratzer, supra, 175 S.W.2d 807, at page 811. Defendants-appellants assert error of the trial court in overruling an application for a continuance. It seems the trial court, "about two months" before, upon the tacit agreement of the parties, had set the trial of the cause for March 14, 1949, and, as of date March 10th, an application for a continuance was filed on the ground the trial court had failed to provide the defendant Mrs. Delany with money in compliance with her former motion for funds asserted to be necessary in the preparation of her defense. Her counsel stated money was necessary so that a psychiatrist could examine her. The record shows that defendants were not deprived of the services and testimony of specialists, and the record shows that defendants were not otherwise circumscribed in fully developing their defense to the action. We rule the trial court did not abuse its discretion in refusing to grant the continuance. In view of the condition of Mrs. Delany's mind, we deem it unnecessary to marshal the evidence bearing upon or decide the issues of undue influence and duress. We approve of the action of the trial court in designating and authorizing Walter L. Roos to act as receiver in effect; and we approve of the trial court's supervision of his acts in ministering to Mrs. Delany's comfort and welfare, and in integrating, protecting and managing her estate. And we see no error in the trial chancellor's action in ordering the consolidation of stated pending actions involving the subject matter, with the view of correctly determining the issues of such actions. A court of equity has the inherent discretionary power to order the consolidation of actions where the subject matter and relief sought make it expedient for the court to thus determine all the issues and adequately adjudicate the rights of all of the different parties in one litigation. Manchester Iron Works v. E. L. Wagner Const. Co., 341 *937 Mo. 389, 107 S.W.2d 89; 1 C.J.S., Actions, § 110b, pp. 1355-1356. Elizabeth Sloan Delany, a gentlewoman of sensitive, refined, generous spirit and dispositionintensely religiousshowered her affection and her bounty upon those about her. In earlier years, the partial frustration of her childless life was in some measure assuaged by the presence of Marie in the Delany home. Even in later years Mrs. Delany sometimes referred to Marie in endearing terms. It must have been a great stress upon Mrs. Delany's tender sensibilities when she realized Marie was not disposed to fulfill the hopes of one who always extended the proffers of a love almost maternal. Marie, and often Margaret, presumed upon Mrs. Delany's affection and generosity; and by their acts struck discordant notes within and without the Delany household. And so Mrs. Delany's fond hopes were blighted, her will and courage broken, and her advancing years took their toll in much greater measure than usual. She became obsessed with many fears, some not entirely groundless, including the fear experienced by many exquisitely sensitive peoplethe fear of unsavory publicity. And now she is helplessher body is lame and diseased, and her mind almost wholly taken over (since early 1944, the trial chancellor has justifiably found) by her progressive dementia senile. Completing our study of the whole transcript of the evidence, we should have been exceedingly surprised had we discovered that Mrs. Delany's plight of person and estate had not appealed to the conscience of a chancellor. The judgment should be affirmed. It is so ordered. LOZIER and ASCHEMEYER, CC., concur. PER CURIAM. The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court. All of the Judges concur, except HOLLINGSWORTH, J., not voting because not a member of the Court when the cause was submitted.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519357/	522 F. Supp. 2d 1068 (2007) Charlene BROWN, individually and as Mother of Devonta Davis, a minor, Plaintiff, v. PLAINFIELD COMMUNITY CONSOLIDATED DISTRICT 202, et al, Defendants. No. 07 C 3873. United States District Court, N.D. Illinois, Eastern Division. November 27, 2007. 1069 1070 Robert Stuart Pinzur, Brian Scott Brewer, Brian R. Merfeld, Laura E. Cohen, Megan Laura Kerr, Pinzur, Cohen & Kerr, Ltd., Long Grove, IL, for Plaintiff. Brian Dennis McCarthy, Paul Andrew Denham, Franczek Sullivan, P.C., Chicago, IL, for Plainfield Community Consolidated School District 202, John Harper, Board of Education of Plainfield Community Consolidated School District 202, Ron Kamzar, Michael Kelly, Rod Westfall, Stuart Bledsoe, Roger Bonuchi, Victoria Eggerstedt and Dave Obrzut. MEMORANDUM OPINION AND ORDER RUBEN CASTILLO, District Judge. This suit was brought by Charlene Brown ("Plaintiff"), individually and on behalf of her son Devonta Davis ("Davis"), who was expelled from Plainfield North High School for inappropriately touching his teacher. Plaintiff filed this action against the school district and various individual school officials (collectively the "Defendants") pursuant to 42 U.S.C. § 1983, alleging that Defendants violated Davis's civil rights and discriminated against him based on his race. (R. 24, Am.Compl.) Currently before the Court is the Defendants' motion to dismiss the due process claims contained in Count I of the Amended Complaint. (R. 28, Defs.' Mot. to. Dismiss.) For the following reasons, the motion is granted. RELEVANT FACTS Davis was a freshman at Plainfield North High School during the 2006-07 school year. (R. 24, Am.Compl. ¶ 21.) On or about April 23, 2007, Laura Moye ("Moye"), one of Davis's teachers, reported that Davis brushed her buttocks with the back of his hand during, class. (R. 24, Am.Compl. ¶¶ 23-24.) Moye reported that Davis had touched her in the same way about a week earlier; the first time she 1071 assumed it had been an accident, but after the second incident she concluded his actions were not accidental and reported him to school officials. (Id. ¶¶ 25-26.) Her report led to an investigation by the school administration. (Id., Ex A., Summary of Hearing at 1.)[1] As a result of the investigation, a disciplinary hearing was held on May 2, 2007, at which Davis and his mother were present and represented by counsel. (Id. ¶ 28, Ex. A at 1,) Moye testified, and Davis's counsel was permitted to cross-examine her about the incident. (Id., Ex. A at 3-4.) She was insistent that Davis had touched her and that his actions were not accidental. (Id.) Davis also testified, claiming that he did not recall touching Moye on either occasion, but that if such touching occurred "it was not his intention to cause Ms. Moye any harm, discomfort or harassment." (Id. at 4.) He offered Moye an apology. (Id.) Davis's mother testified in his defense, describing his upbringing and his interests outside of school, which included sports and the teen ministry at his church. (Id. at 2-3.) Also submitted into evidence were the unsworn statements of three students, identified only as "A," "B," and "C," who claimed to have overheard Davis making inappropriate comments about Moye, including that she was "sexy," had a "nice body," and that he wanted to go on a date with her. (Id. ¶¶ 32-38 & Group Ex. B, Student Statements.) There was a fourth statement from a student identified as "D," who stated, "I didn't see Devonta do anything or hear anything inappropriate." (R. 24, Am. Compl., Group Ex. B.) There was also evidence presented that Davis had been involved in a prior disciplinary incident. (Id., Ex. A at 4.) In March 2007, Davis was given a three-day suspension for using inappropriate language regarding a female classmate. He had stated, "Do you want to hear the rumor I heard about Sydnei? I heard Sydnei gives good head." (Id. at 4-5.) At the hearing, Davis disputed the circumstances surrounding this incident, but he admitted making the above statement. (Id. at 4-5.) He further acknowledged that his classmate, Sydnei, had become upset with him as a result of his making this statement. (Id. at 5.) Following the disciplinary hearing, the school board on May 14, 2007, decided to expel Davis for the remainder of the school year and the entirety of the 2007-08 school year. (Id., Ex. D, Letter from Plainfield Comm. Cons.Sch. Dist. 202.) PROCEDURAL HISTORY On July 10, 2007, Plaintiff filed this action in federal court[2] alleging: a claim 1072 that Defendants violated Davis's due process rights (Count I); a claim that Defendants violated Davis's civil rights, including discriminating against him based on his race (Count II); a claim for preliminary injunctive relief (Count III); and a claim for a temporary restraining order (Count IV). (R. 1, Compl.) Plaintiff also filed a separate motion for a preliminary injunction that would require Defendants to enroll Davis in school while this suit is pending. (R. 10.) This Court denied the motion for preliminary injunction, concluding that Plaintiff failed to establish a likelihood of success on the merits or that the balance of harms weighed in her favor. See Brown v. Plainfield Comm. Cons. Dist. 202, 500 F. Supp. 2d 996 (N.D.Ill. 2007). Plaintiff thereafter filed an Amended Complaint alleging procedural and substantive due process claims (Count I); a violation of unspecified "civil rights" (Count II); and a race discrimination claim (Count III). (R. 24.) Defendants now move to dismiss Count I of the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that Plaintiff has not adequately alleged a violation of Davis's due process rights. (R. 29, Defs.' Mem. in Supp. of Mot. at 2-6.) LEGAL STANDARDS In determining whether to grant a motion to dismiss, the Court assumes all well-pleaded allegations in the complaint to be true and draws all reasonable inferences in the Plaintiff's favor. Fed.R.Civ.P. 12(b)(6); Christensen v. County of Boone, Illinois, 483 F.3d 454, 457 (7th Cir.2007). Detailed factual allegations are not necessary, but merely reciting the elements of a cause of action is insufficient. Bell Atlantic Corp. v. Twombly, ___ U.S. ___, ___-___, 127 S. Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007) ("While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . a plaintiff's obligation to provide the `grounds' of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."); Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618-19 (7th Cir.2007) (observing that the Supreme Court in Bell Atlantic "retooled federal pleading standards" such that a complaint must now contain "enough facts to state a claim to relief that is plausible on its face."). To survive a motion to dismiss, a plaintiff must plead enough to "nudge[] their claims across the line from conceivable to plausible." Bell Atlantic, 127 S.Ct. at 1974. "The pleading must contain something more [than] a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. at 1964-65. Under Bell Atlantic, "it is not enough for a complaint to avoid foreclosing possible bases for relief; it must actually suggest that the plaintiff has a right to relief." EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 777 (7th Cir.2007). Further, "a plaintiff may unwittingly plead himself out of court by alleging facts that preclude recovery." Edwards v. Snyder, 478 F.3d 827, 830 (7th Cir.2007). ANALYSIS In Count I of the Amended Complaint, Plaintiff raises both procedural and substantive due process claims. We address each in turn. 1. Procedural Due Process "[P]rocedural due process imposes constraints on governmental decisions which deprive individuals of `liberty' or `property' interests within the meaning of 1073 the Due Process Clause of the Fifth or Fourteenth Amendment." Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). Children possess a property and liberty interest in attending public school. Goss v. Lopez, 419 U.S. 565, 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975). The state may not take away this right absent fundamentally fair procedures. Id. at 574, 95 S. Ct. 729. In Goss, the Supreme Court held that when a student risks being suspended for ten days or less, due process requires that the student be given "oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his version." Id. at 581, 95 S. Ct. 729. The Court declined to adopt a rule that students have a right to secure counsel or cross-examine witnesses at suspension hearings, but left open the possibility that hearings involving more severe punishments "may require more formal procedures." Id. at 584, 95 S. Ct. 729. In Remer v. Burlington Area School Dist., 286 F.3d 1007 (7th Cir.2002), the Seventh Circuit upheld the four-year expulsion of a high school student and examined the due process procedures required at expulsion hearings. The Court held that a student facing an expulsion has a due process right to "notice of the charges against him, notice of the time of the hearing and a full opportunity to be heard." Id. at 1011-12. A student must be given a meaningful opportunity to be heard, but expulsion hearings need not "take the form of a judicial or quasi-judicial trial." Id. at 1010; see also Lamb v. Panhandle Comm. Unit Sch. Dist. No. 2, 826 F.2d 526, 528 (7th Cir.1987) (when penalty tantamount to expulsion is involved, "the school authority must afford the student an opportunity to present evidence and argument in mitigation."). Here, it is apparent from the Amended Complaint that Davis and his mother received notice of the charges against him; when the touching incident was first reported by Moye, Davis and his mother were both called to the dean's office to discuss the incident. (R. 24, Am. Compl., Ex. A, Summary of Hearing at 1-2.) Davis was also given notice of the hearing, since he and his mother were present at the hearing along with their attorney. (R. 24, Am. Compl., Ex. A, Summary of Hearing at 1-2.) However, Plaintiff alleges that Davis was not given a fair hearing because he was not permitted to cross-examine the unnamed students who submitted witness statements. (Id. ¶¶ 31-38.) As stated above, Goss left open the possibility that "more formal procedures," such as the right to cross-examine witnesses, may be required in the context `of an expulsion hearing. The Seventh Circuit has not specifically decided whether there is a federal due process right to cross-examine witnesses at high school expulsion hearings. In the absence of any direct authority, the Court must proceed under the general rubric of Mathews v. Eldridge, 424 U.S. at 335, 96 S. Ct. 893. Mathews sets forth a flexible, policy-oriented balancing test to determine what process is due, and requires the Court to consider: (1) the interest that will be affected by the state action; (2) the risk of erroneous deprivation of this interest through the procedures used by the state and the probable value, if any, of additional procedural safeguards; and (3) the state's interest, including the fiscal and administrative burdens that the additional procedure would entail. Mathews, 424 U.S. at 335, 96 S. Ct. 893. As for the first Mathews factor, there is no doubt that Davis has an important interest in attending school. See Goss, 419 U.S. at 565, 95 S. Ct. 729. Even 1074 though Davis will be permitted to return to school next year, his expulsion could damage his standing with classmates and teachers. Id. at 575, 95 S. Ct. 729. Further, having an expulsion on his record may have long term negative consequences with respect to later opportunities for higher education or jobs. Id. As for the second Mathews factor, courts have recognized that the need for cross-examination in the school disciplinary setting is "somewhat muted by the fact that the veracity of a student account of misconduct by another student is initially assessed by a school administrator . . . who has, or has available to him, a particularized knowledge of the student's trustworthiness." Newsome v. Batavia Local Sch. Dist., 842 F.2d 920, 924 (6th Cir.1988). Thus, the process of cross-examining a student witness may often be duplicative of the evaluation process undertaken by the school administrator charged with investigating the incident. Id. Moreover, in this case, it is apparent from the Amended Complaint that the student statements played only a small role in Davis's expulsion. While these statements provided a possible motive for Davis's touching of Moye, none of the students claimed to have witnessed either of the touching incidents. (R. 24, Am. Compl., Ex. B, Student Statements.) Instead the core evidence against Davis was Moye's testimony. Throughout her testimony, Moye remained insistent that Davis had touched her and that the second incident was not accidental: she based this conclusion on the location of the touching (near the bottom of her buttocks); the fact that there was substantial space for Davis to pass without touching her; and the fact that Davis and his friend kept looking at her after the incident occurred. (Id., Ex. A at 3-4.) Davis did not deny touching Moye, instead testifying that he did not recall doing so. (Id. at 4.) In light of this evidence, permitting cross-examination of the student witnesses would have had little probative value in determining what actually occurred in the classroom between Moye and Davis. See B.S. ex rel. Schneider v. Bd. of Sch. Trust., Fort Wayne Comm. Sch., 255 F. Supp. 2d 891, 900 (N.D.Ind.2003) ("[T]he presence of corroborating evidence further diminishes the potential value of cross-examination at the expulsion hearing."). Under these circumstances, the risk of erroneous deprivation and the probable value of allowing cross-examination of the student witnesses was low. The final Mathews factor is the state's interest. As courts have recognized, maintaining order in today's public high schools is no small task. See New Jersey v. TLO, 469 U.S. 325, 339, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985) (observing that "drug use and violent crime in the schools have become major social problems."); Newsome, 842 F.2d at 925 ("Today's public schools face severe challenges in maintaining the order and discipline necessary for the impartation of knowledge."). Schools have a strong interest in protecting students who come forward to report misconduct by their peers. "Without the cloak of anonymity, students who witness [classmate misconduct] will be much less likely to notify school authorities, and those who do will be faced with ostracism at best and perhaps physical reprisals." Newsome, 842 F.2d at 925; see also B.S., 255 F.Supp.2d at 900 ("[I]n light of the increasing challenges schools face in maintaining order and discipline, requiring schools to permit the confrontation of student witnesses or even to disclose their identities in expulsion hearings would be overly-burdensome and unrealistic."). The Court also considers the administrative burden that would result from creating a right to cross-examination at school 1075 disciplinary proceedings. In a related context, the Seventh Circuit rejected a college student's claim that he had a right to counsel at his expulsion hearing, weighing the limited value of such a right against the cost to the school: [W]e do not think he is entitled to be represented in the sense of having a lawyer who is permitted to examine or cross-examine witnesses, to submit and object to documents, to address the tribunal, and otherwise to perform the traditional function of a trial lawyer. To recognize such a right would force student disciplinary proceedings into the mold of adversary litigation. The university would have to hire its own lawyer to prosecute these cases and no doubt lawyers would also be dragged in from the law faculty or elsewhere to serve as judges. The cost and complexity of such proceedings would be increased, to the detriment of discipline as well as of the university's fist. Osteen v. Henley, 13 F.3d 221, 225 (7th Cir.1993). We find these same concerns applicable here. Saddling high school administrators with the burden of overseeing the process of cross-examination, as well as the objections that would be raised to the form and content of cross-examination, "is to require of them that which" they are ill-equipped to perform." Newsome, 842 F.2d at 926. Increasing the complexity of school disciplinary hearings would also divert time and attention away from the administration's primary purpose: overseeing the educational process. Id.; see also Boykins v. Fairfield Bd. of Educ., 492 F.2d 697, 701 (5th Cir.1974) (observing that if the court were to recognize a right to cross-examination "we stand but a step away from the application of the strictissimi juris due process requirements of criminal trials to high school disciplinary processes. And if to high school, why not to elementary school? It will not do."). Numerous other courts have balanced the competing interests at stake and concluded that high school students do not possess a federal due process right to cross-examine witnesses at expulsion hearings. See Newsome, 842 F.2d at 920 (high school student threatened with expulsion based on statements of classmates did not have due process right to learn their identities); B.S., 255 F.Supp.2d at 900 (student did not have procedural due process right to obtain names and cross-examine student witnesses at expulsion hearing); Caston v. Benton Pub. Schs., No. 00-215, 2002 WL 562638 (E.D.Ark. Apr. 11, 2002) (school did not violate student's due process rights by refusing to let him cross-examine adverse student witnesses at his expulsion hearing); Witvoet v. Herscher Comm. Unit Sch. Dist. 2, No. 97-2243, 1998 WL 1562916 (C.D.Ill. May 27, 1998) (student had no right under federal due process principles to confront or cross-examine his accuser at expulsion hearing); L.Q.A. v. Eberhart, 920 F. Supp. 1208, 1219 (M.D.Ala.1996) (no due process violation where school board considered written statements from student witnesses who were not subject to cross-examination at expulsion hearing), aff'd, 111 F.3d 897 (11th Cir.1997). The Court finds the analysis of these courts persuasive. In her opposition to the motion to dismiss, Plaintiff repeatedly cites to an Illinois case regarding due process rights in the school disciplinary context. This is the same case Plaintiff relied on extensively in her motion for a preliminary injunction, and the Court specifically advised Plaintiff s counsel that Illinois case law is net binding on the Court's determination of Davis's federal due process rights. See Brown, 500 F.Supp.2d at 1001 n. 1. Counsel's continued reliance on Illinois case law demonstrates a fundamental misapprehension of federal due process principles. As the Seventh Circuit has explained: 1076 "The due process clauses in the fifth and fourteenth amendments do not protect property rights unconditionally. They say that no one may `be deprived of life, liberty, or property, without due process of law.' Due process usually means notice and an opportunity for a hearing. State law defines property; federal law defines the process that is `due.'" Goros v. County of Cook, 489 F.3d 857, 859 (7th Cir.2007) (emphasis added); see also Osteen, 13 F.3d at 225 ("The standard of due process is federal.") Accordingly, it is federal law and not state law that governs this Court's resolution of Plaintiffs due process claims.[3] For the reasons fully explained above, the Court concludes that Davis did not possess a federal due process right to cross-examine the student witnesses at his disciplinary hearing, and Plaintiff's allegations therefore fail to state a claim for relief. Plaintiff's remaining allegations are that the school board failed to adhere to various procedural rules contained in the school's student handbook and the Illinois School Code, 105 ILCS 5/10-22.6. (R. 24, Am.Compl. ¶¶ 40-56, 76-78.) These claims fail as a matter of law. In the words of the Seventh Circuit: "As we tirelessly but unavailingly remind counsel in this Court, a violation of state law . . . is not a denial of due process, even if the state law confers a procedural right." Osteen, 13 F.3d at 225. To the extent Plaintiff is attempting to assert a claim that the school board's actions were such a departure from established rules that they constitute arbitrary government action, that claim will be addressed within the ambit of the substantive due process analysis below. In summary, the Amended Complaint makes clear that Davis was given an opportunity to provide his version of events and to offer evidence in his defense. (Id., Ex. A at 2-4.) Further, his attorney was allowed to question Moye and to make arguments as to why Davis should not be expelled. (Id. 3-6.) These procedures satisfied the requirement that Davis be given a meaningful opportunity to be heard. Remer, 286 F.3d at 1012; Lamb, 826 F.2d at 528. Thus, the Court concludes that Plaintiff has failed to allege a cognizable procedural due process claim. 2. Substantive Due Process The touchstone of substantive due process is the "protection of the individual against arbitrary action of government." County of Sacramento v. Lewis, 523 U.S. 833, 845, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998). However, "only the most egregious official conduct is arbitrary in the constitutional sense." Remer, 286 F.3d at 1013. To violate substantive due process, a defendant's conduct must "shock the conscience" and be "unjustifiable by any governmental interest." See id. This is a high standard, and "[c]ases abound in which the government action though thoroughly disapproved of was found not to shock the conscience." See Tun v. Whitticker, 398 F.3d 899, 902 (7th Cir.2005) (collecting cases). A substantive due process violation will be found in the context of a school disciplinary hearing only where the plaintiff demonstrates that defendants acted in an "extraordinary departure, from established norms." Dunn v. Fairfield Comm. 1077 High Sch., 158 F.3d 962, 966 (7th Cir. 1998). The Supreme Court has described the limited role of the federal court in assessing a substantive due process challenge to a school board's disciplinary decision: It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion. Public high school students do have substantive and procedural rights while at school . . . But § 1983 does not extend the right to relitigate in federal court evidentiary questions arising in school disciplinary proceedings or the proper construction of school regulations. The system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members and § 1983 was not intended to be a vehicle for federal court correction of errors in the exercise of that discretion which do not rise to the level of violations of specific constitutional guarantees. Wood v. Strickland, 420 U.S. 308, 326, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975). The bulk of Plaintiff's allegations fall within this prohibited category, as she is essentially seeking to relitigate evidentiary questions and the proper construction of various school regulations.[4] (See R. 24, Am. Compl. ¶¶ 39-78; R. 32, Pl.'s Opp. at 8-10.) These allegations fail to state a claim for a violation of substantive due process. Although the Amended Complaint is not a model of clarity, Plaintiff also appears to be claiming that the school board so far departed from its own rules that its actions were arbitrary. (See id. ¶¶ 67-74.) For instance, Plaintiff alleges that under the school's handbook and the Illinois School Code ("School Code"), 105 ILCS 5/10-22.6, Davis should not have been given more than a suspension for his actions. (R. 24, Am.Compl. ¶¶ 51-56.) However, the School Code gives the board authority to expel a student for up to two years, and both the handbook and the School Code afford the board considerable discretion to make an appropriate disciplinary decision in light of the individual circumstances of each case. 105 ILCS 5/10-22.6(d); R. 24, Am. Compl., Ex. C, Handbook at 41. Plaintiff also alleges that the hearing officer failed to make a recommendation to the school board in violation of 5/10-22.6; however, there is nothing in the statutory provision cited by Plaintiff that requires a hearing officer to make a recommendation to the school board. See 105 ILCS 5/10-22.6(a) ("If a hearing officer is appointed by the board he shall report to the board a written summary of the evidence heard at the meeting and the board may take such action thereon as it finds appropriate."). In short, the Amended Complaint fails to raise a plausible claim that the school board's actions constituted an extraordinary departure from established norms. To the extent Plaintiff is also claiming that the punishment Davis received was overly harsh and thus arbitrary, it is not the role of this Court to substitute its judgment for that of the school board regarding an appropriate 1078 penalty for Davis's actions. See Wood, 420 U.S. at 326, 95 S. Ct. 992; see also Lamb, 826 F.2d at 528 ("the meting out of disciplinary punishment is a matter left largely to the discretion of the school authorities"). Even if Plaintiff is Correct that the school board could have imposed a lesser sentence, the school board's conduct, as alleged in the Amended Complaint, falls far short of shocking the conscience. See Tun, 398 F.3d at 904 ("Although individual school district employees overreacted and gave overly broad reading to district's behavior code, their actions did not rise to conscience-shocking level"); Dunn, 158 F.3d at 963 (no substantive due process violation where students received failing grades for playing two unauthorized pieces at band concert, even though school officials "may have overreacted" in imposing punishment). Although Davis received a harsh punishment, there was evidence before the school board that he committed a serious infraction: the unwanted touching of a teacher's intimate body part. Imposing a harsh penalty for such an offense could reasonably be viewed as necessary to deter student misconduct and ensure a safe learning environment for both students and teachers. See New Jersey, 469 U.S. at 350, 105 S. Ct. 733 ("Without first establishing discipline and maintaining order, teachers cannot begin to educate their students.") (Powell, J., concurring). For these reasons, the Court concludes that Plaintiff has failed to allege a cognizable substantive due process claim. CONCLUSION Defendants' partial motion to dismiss (R. 28) is granted, and Count I of the Amended Complaint is dismissed with prejudice. The parties are directed to reevaluate their respective settlement positions in light of this opinion and to undertake new efforts to settle this case. A status hearing will be held in open court on December 13, 2007 at 9:45 a.m. NOTES [1] In deciding a motion to dismiss, the Court may consider documents attached to the complaint. Fed.R.Civ.P. 10(c); 188 LLC v. Trinity Industries, Inc., 300 F.3d 730, 735 (7th Cir. 2002). Here, Plaintiff attached the following documents to the Amended Complaint: (1) the hearing officer's "Summary of Hearing" report (Exhibit A); (2) student witness statements (Group Exhibit B); (3) portions of the school's student handbook (Exhibit C); and (4) a letter from the school board advising Plaintiff of its decision to expel Davis (Exhibit D). Each of the documents are referenced in the Amended Complaint and are central to Plaintiff's claims. The Court thus considered these documents in ruling on the motion to dismiss. [2] Plaintiff filed a companion action in state court seeking administrative review of the school board's decision. Defendants have removed that action, asserting that this Court has supplemental jurisdiction over the claims raised therein. See Brown v. Plainfield Comm. Cons.Sch. Dist. 202, No. 07cv6153. On November 5, 2007, the Court dismissed that action without prejudice subject to: (1) a timely motion to remand; (2) the filing of a proper amended complaint in 07 C 3873 incorporating the state law claims; or (3) a voluntary dismissal of the suit with prejudice. (R. 6, Minute Entry.) [3] Even if Illinois cases were relevant to this Court's determination, the Camlin case, cited at least 10 times in Plaintiff's opposition, does not stand for the broad principle that cross-examination is required at every high school disciplinary hearing. See Camlin v, Beecher Cmty. Sch. Dist., 339 Ill.App.3d 1013, 274 Ill. Dec. 331, 791 N.E.2d 127 (2003). Instead, in Camlin the court held that the student did not receive adequate notice of the hearing because he was not given "any information about the identity of his accuser or the nature of the specific charge." Id. at 131. [4] The Court is baffled by Plaintiff's argument that state law governs the analysis of whether Davis's substantive due process rights were violated. (See R. 32, Pl.'s Opp. at 7) ("Plaintiff's substantive state law rights to an education for Davis requires the Court to step into the shoes of the Illinois Supreme Court and determine whether Plaintiff's rights were violated under Illinois law.") In support of this argument, Plaintiff's counsel relies on cases applying Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). (R. 32, Pl.'s Opp. at 6-7.) It hardly bears repeating that the Erie doctrine applies to diversity cases, while this case is premised on federal question jurisdiction.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519378/	232 S.W.2d 347 (1950) SWANGO et al. v. SWANGO'S ADM'R et al. Court of Appeals of Kentucky. May 26, 1950. W. L. Kash, Irvine, Roger Womack, Carlisle, for appellants. Eldon S. Dummit, Lexington, Henry Howe Bramblett, Mt. Sterling, William Conley, Carlisle, for appellees. CLAY, Commissioner. In this declaratory judgment proceeding the question is whether or not the Chancellor properly construed the provisions of a will. In 1935 Dr. L. K. Swango died, leaving a will which provided, in so far as pertinent here, as follows (our italics): "I bequeath all my land, if any and all my bonds, notes, if any, all my household furniture, ready money, securities for money accounts, goods and chattels and all other parts of my real and personal estate and effects whatsoever and wheresoever, unto my wife, Jimmie Swango, to and for her absolute use and benefit according to nature and quality thereof respectively, I want her to use the above to suit herself, to sell, trade or barter, or spend as she sees fit, subject only to the payment of my just debts, funeral expenses and the charge of proving and registering this, my last will. "After my wife's death I desire the real and personal property, money if any, that may be left to be divided equally between my wife's and my heirs, and I appoint my said wife executrix of this my last will without bond and thereby revoke all other wills." The testator's widow qualified as executrix, took over all of her husband's property, and apparently never filed an inventory or made a final settlement. In 1949 she died, leaving a will of her own wherein she disposed of the unused estate she had *348 received from her husband. This controversy arises between the beneficiaries under her will and the heirs referred to in the instrument quoted above. The Chancellor determined that she took her husband's property absolutely and in fee simple, and could therefore dispose of it by will. It will be noted the testator first gave his property absolutely to his widow. In the second paragraph he expressed a "desire" that if any of the estate remained at her death it should be divided equally between the heirs of each. Thus we have a precatory expression which it is claimed was a limitation on the estate devised and bequeathed to the widow. While this Court has repudiated the rule that where an absolute estate is devised, subsequent provisions will not be held to impair that estate, we still must seek out the true intention of the testator. A full discussion of the principles may be found in Ridley et al. v. Shepard, 293 Ky. 91, 168 S.W.2d 550, and Bosworth et al. v. Kilbourn et al., 304 Ky. 628, 201 S.W.2d 904. In these cases it is pointed out that the wishes of the testator, indicated by such words as "wish," "request," "recommend," or "desire," are not deemed mandatory unless it appears a legal and enforceable obligation was intended to be created. Unless the context forces the conclusion that the precatory words were used in a stronger sense, they will not be construed as a limitation on the primary estate devised. In the light of these principles, the second paragraph of the will quoted did not impair the estate created in the first paragraph. The testator gave all his property to his wife for her absolute use and benefit, and further emphasized her complete discretionary powers by stating that she was to use it "to suit herself." In the second paragraph of the will he apparently anticipated that all of the estate might not be consumed or disposed of by his wife, and in that event what remained he wished divided equitably. Reading the entire will, it is clear to us that the testator intended no legal or enforceable limitation on the estate left to his wife, except possibly in the event she died without having disposed of a portion of it. Since she had, by use and by will, appropriated it all, there was no remaining estate in which appellants could share. The judgment is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519412/	232 S.W.2d 103 (1950) AMERICAN BOTTLING CO. v. BRIGGS, District Judge, et al. No. 12161. Court of Civil Appeals of Texas, San Antonio. July 12, 1950. 104 Kemp, Lewright, Dyer & Sorrell, Corpus Christi, for relator. Lyman, Pittman, Pogue & Schraub, Corpus Christi, for respondents. NORVELL, Justice. American Bottling Company, relator, seeks a peremptory writ of mandamus ordering the Hon. Cullen W. Briggs, Judge of the District Court of Nueces County, Texas, 117th Judicial District, to render judgment that Stephen G. Barclay, individually and as next friend of Sterling Edward Barclay, a minor, take nothing as against relator in Cause No. 40,975-B on the docket of said court. It is asserted in said Cause No. 40,975-B, that the minor plaintiff was injured by an explosion of a Coca-Cola bottle which had been filled by relator. Specific acts of negligence in filling and charging the bottle were alleged, and in the alternative the doctrine of res ipsa loquitur was relied upon. Trial was to a jury and after plaintiffs had completed their case, American Bottling Company moved for an instructed verdict. This motion was overruled and the case submitted to the jury upon special issues. The jury were unable to agree upon the answers to certain questions asked of them and returned an incomplete verdict. The bottling company filed a motion to disregard this partial verdict and render judgment for it upon the theory that it was entitled to a peremptory instruction. American Bottling Company, as relator here, has filed a record of the testimony introduced upon the trial below as an exhibit to its petition for mandamus, and contends that on this record it was entitled to judgment as a matter of law because there was no evidence showing that it was legally responsible, for the injuries sustained by the minor plaintiff. Relator argues that, (1) an appellate court will issue a writ of mandamus ordering a trial court to render judgment on the verdict of a jury, and (2) that in deciding whether or not a judgment should be rendered upon the verdict, the appellate court will determine if certain necessary findings not submitted to the jury are supported by the uncontradicted testimony. Based upon these premises, it is asserted as a logical proposition that if an appellate court may decide one issue from the undisputed evidence, it may decide all issues from the undisputed evidence, or conversely may decide all issues upon a "no evidence" basis. In other words, it is asserted that, regardless of the jury's findings, a writ of mandamus should issue ordering the rendition of judgment when the record of the evidence shows that the party applying for the writ is entitled to judgment as a matter of law. Article 1824, Vernon's Ann. Civ. Stats., provides that a Court of Civil Appeals 105 "may issue the writ of Mandamus to compel a Judge of the District or County Court to proceed to trial and judgment in a cause * * *," and it is well settled that under the provisions of this article and those of Rule 300, Texas Rules of Civil Procedure, taken from Article 2209, providing that judgment shall be rendered on the verdict, a Court of Civil Appeals may direct the rendition of a judgment upon the verdict by mandamus. Lloyd v. Brinck, 35 Tex. 1; Gulf Colorado & Santa Fe Ry. Co. v. Canty, 115 Tex. 537, 285 S.W. 296; Cortimeglia v. Davis, 116 Tex. 412, 292 S.W. 875; Friske v. Graham, Tex.Civ.App., 128 S.W.2d 139. While obviously an appellate court may not order the rendition of a judgment upon a special verdict if certain issues were not submitted to the jury and the evidence relating thereto is conflicting, Southland-Greyhound Lines, Inc. v. Richardson, 126 Tex. 118, 86 S.W.2d 731; Missouri-Kansas-Texas Ry. Co. v. Price, 116 Tex. 241, 288 S.W. 415, it seems that when a necessary issue is supported by the undisputed evidence, the appellate court may consider the issue as established and order judgment rendered upon the verdict. O'Meara v. Moore, 142 Tex. 350, 178 S.W.2d 510, 513. This should be the rule. A case in which a defendant's liability is based upon jury findings that, (1) A was B's servant and (2) while driving a truck in the course of his employment (3) committed an act (4) which was negligent and (5) was the proximate cause of C's injuries, can hardly be distinguished from one in which the first and second elements above set out are established by the undisputed evidence and consequently not submitted to the jury. However, in all of the cases above cited, the question involved was that of rendering judgment upon the verdict. Relator here seeks an order directing the rendition of judgment notwithstanding the verdict. In this the present case differs from those cited, and this difference precludes the issuance of the order prayed for by the relator. The practice which permits the ordering of the rendition of judgment upon the jury's findings developed originally from the use of the general verdict. When a general verdict is used, the law applicable to the case is set out in the court's charge and the rendition of judgment upon a verdict for the plaintiff or for the defendant seldom if ever involves complex questions. In Lloyd v. Brinck, 35 Tex. 1, a general verdict case, the act of rendering judgment on the verdict was regarded as involving no judicial discretion. It was stated that "a writ of mandamus will issue to an inferior court to compel the performance of a certain and positive duty made mandatory by law, or where the duty is ministerial and involves no judicial discretion." This rule has been applied to special issue findings although the right to judgment upon this form of verdict may involve decisions upon points of law which are much more difficult and complex than those arising in a case where the jury simply finds for the plaintiff or for the defendant. In fact, most applications for writs of mandamus of the type here considered are filed as a result of a trial judge's conclusion that the findings of a jury are conflicting, a point upon which a difference of opinion may well arise, as is disclosed by the reported cases. Fredericksburg Hospital & Clinic v. Springall, Tex. Civ.App., 220 S.W.2d 692; Friske v. Graham, Tex.Civ.App., 128 S.W.2d 139. Although the change from the general verdict to special jury findings may result in an appellate court's making findings from undisputed evidence in certain cases in which mandamus is sought, this development does not authorize the appellate court to order the rendition of a judgment non obstante veredicto and thus find all the issues in a case from the undisputed evidence, or to determine that there is "no evidence" supporting plaintiff's alleged cause of action. There is an essential difference between a judgment on the verdict and one rendered notwithstanding the verdict. The statutes and the rules of civil procedure at the present time do not provide for a mandamus ordering a trial judge to render judgment non obstante veredicto. The petition for mandamus is denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519414/	522 F. Supp. 1130 (1981) Charles Dale HARMAN, Plaintiff, v. Esther Harman PAULEY, Defendant. Civ. A. No. 80-1075. United States District Court, S. D. West Virginia, Bluefield Division. September 24, 1981. 1131 G. Marshall Mundy, Roanoke, Va., E. M. Payne, III, Beckley, W.Va., David Burton, Princeton, W.Va., for plaintiff. Jerry K. Jebo, Radford, Va., Dan O. Callaghan, Richwood, W.Va., for defendant. MEMORANDUM OPINION AND ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION IN OPPOSITION TO TRANSFER KIDD, District Judge. Plaintiff, Charles Dale Harman, originally brought this action against defendant, Esther Harman Pauley, in the United States District Court of the Western District of Virginia. Plaintiff is a resident of Georgia and defendant is a resident of Virginia. Jurisdiction was predicated upon diversity of citizenship and the requisite amount in controversy. 28 U.S.C. § 1332. Subsequently plaintiff moved that court to transfer the action to the Southern District of West Virginia, Bluefield Division, pursuant to 28 U.S.C. § 1406(a). That motion was granted; thereafter defendant filed her motion in opposition to the transfer. Defendant argues that the transfer was improper because the Virginia transferor court lacked subject matter jurisdiction and thus lacked the power to transfer and because the West Virginia transferee court lacks personal jurisdiction over the defendant, a resident of Virginia. Implicit in the second argument is the question of whether the West Virginia long-arm statute may be used to obtain service of process over defendant. Plaintiff and defendant are cousins; the crux of the present dispute centers around certain personal property which plaintiff claims is his by reason of gifts allegedly made to him by Perle T. Harman, the aunt of the plaintiff and defendant. Defendant makes a similar claim. Family quarrels regarding the aunt's personal property have surfaced in the past. On February 23, 1977, Perle T. Harman sued Charles Dale Harman and several coal companies in the United States District Court for the Western District of Virginia, alleging that Charles Dale Harman had fraudulently and wrongfully caused her to transfer to him certain stock in several coal companies. Subsequently, on July 15, 1977, 1132 Charles Dale Harman sued Esther Harman Pauley and other family members in the United States District Court for the Southern District of West Virginia alleging that the defendants had undertaken to injure him in his reputation and profession and had sought to deprive him of his property, including shares of stock. Perle T. Harman was not named as a party defendant in this suit. Ultimately both law suits were dismissed. Prior to the dismissal Charles Dale Harman, Esther Harman Pauley and several other family members executed a "Release in Full and Covenant Not to Sue."[1] Perle T. Harman was not a party to that contract. The complaint in the district court case in West Virginia was dismissed with prejudice one day after the release was filed. Sometime thereafter Perle T. Harman was declared an incompetent by the Circuit Court of Mercer County, West Virginia and the First National Bank of Bluefield was appointed as her committee. Plaintiff apparently contacted the bank, indicated that he wished to obtain certain items of personalty allegedly belonging to him which were in Perle T. Harman's house in Bluefield, West Virginia, and was instructed by the bank to file a claim for those items with a Commissioner of Accounts located in Mercer County, West Virginia. On or about April 2, 1979, plaintiff filed a proof of claim with the Commissioner of Accounts, stating that Perle T. Harman had given him certain items of personalty described in letters attached to his proof of claim. In response to the claim filed by plaintiff, the Commissioner contacted Perle T. Harman's heirs by letter of May 2, 1979 which reads in part: "Mr. Dale Harman claims that various items of personal property were given to him and his wife by Mrs. [Perle] Harman while she was lucid and backs his claim by letters in writing signed by her and witnessed by bank officials. "This proof of claim was filed before me on April 3, 1979, and there has been no counter-affidavit filed as of this date. "If no objection to this claim has been filed in this office by July 31, 1979, it will be concluded that the items listed in Dale Harman's claim are his." Exhibit E, Defendant's Answer. According to her answer filed herein, defendant Pauley received a copy of this letter and also received a letter from Mrs. Harman's attorney in Bluefield, West Virginia, notifying her of Dale Harman's claim and advising her that she should submit a claim against her aunt's estate for items of personalty allegedly given to her by her aunt. Defendant Pauley's answer further alleges that defendant went to an attorney in Princeton, West Virginia. That attorney filed with the commissioner an affidavit executed in Mercer County, West Virginia, on June 25, 1979 by the defendant which set forth defendant Pauley's claim for the items of personalty previously claimed by plaintiff. Plaintiff then filed suit in the United States District Court of the Western District of Virginia alleging: (1) defendant breached the release and covenant not to sue by filing a claim against plaintiff's coal stocks and certain items of personalty before a Commissioner of Accounts in Mercer County, West Virginia; (2) in 1976 defendant wrongfully, wilfully and maliciously induced Perle T. Harman to revoke a trust agreement between Perle T. Harman and The First National Exchange Bank of Virginia of which plaintiff was the lifetime income beneficiary and his sons were the residuary beneficiaries; (3) in 1975 defendant wrongfully, wilfully and maliciously sought to file a fraudulent insurance claim in the name of Perle T. Harman with the intention that plaintiff be accused of stealing 1133 those items; and (4) the continued effort of defendant to deprive plaintiff of his coal stocks and other personalty has wilfully and maliciously injured plaintiff in his reputation, trade and profession. The defendant answered by denying essentially all of plaintiff's allegations.[2] With the case in this posture, Judge Turk transferred the case upon plaintiff's motion to the Southern District of West Virginia.[3] Defendant then filed her motion in opposition to the transfer for the reasons previously stated. I. SUBJECT MATTER JURISDICTION The transferor court did not lack subject matter jurisdiction in the instant case. Jurisdiction of the court was invoked under the diversity provisions and diversity of the parties, as well as the requisite jurisdictional amount, existed at the time of the transfer and still exists. The complaint before the transferor court at the time of the transfer was sufficient for that court to conclude that it had subject matter jurisdiction. This Court concludes the transfer was proper as regards the question of subject matter jurisdiction. Raese v. Kelly, 59 F.R.D. 612 (N.D.W.Va. 1973); Wright & Miller & Cooper Federal Practice and Procedure: Jurisdiction § 3827. II. PERSONAL JURISDICTION The transferee court must have or be able to obtain personal jurisdiction over the defendant; otherwise, the Court must find the transfer improper. See Wright & Miller & Cooper Federal Practice and Procedure: Jurisdiction § 3827 and cases cited therein; 1 Moore's Federal Practice ¶¶ 1.145 [6.-2], 1.146[5] and cases cited therein. Plaintiff argues that he can obtain personal service over the defendant via the West Virginia long-arm statute. W.Va.Code § 56-3-33 (1980 Cum.Supp.). Defendant essentially argues that she has not had such contact with the state of West Virginia since June 9, 1978, the effective date of the long-arm provision, which would subject her to proper long-arm service. Rule 4(e) of the Federal Rules of Civil Procedure provides for service upon a non-resident in any manner prescribed by the forum state's "statute or rule." The long-arm provision of West Virginia defines the limits of this Court's personal jurisdiction over a non-resident defendant. The inquiry required to define those limits is necessarily two-fold: first, does the statutory language permit service of process on the non-resident defendant; and second, does such service and thus the exercise of the Court's personal jurisdiction over the non-resident defendant offend the due process clause of the United States Constitution. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980); Haynes v. James H. Carr, Inc., 427 F.2d 700, 703 (4th Cir. 1970). See Humphreys v. Pierce, 512 F. Supp. 1321, 1323 (W.D.Va.1981). 1134 A. THE STATUTORY REQUIREMENTS The Court first addresses plaintiff's claims regarding revocation of a trust agreement in 1976 and the attempted filing of a fraudulent insurance claim in 1975.[4] The West Virginia long-arm provision became effective June 9, 1978 and that provision limits exertion of jurisdiction over a non-resident to causes of action arising from certain specified acts set forth in the statute. W.Va.Code § 56-3-33(b) (1980 Cum.Supp.).[5] The long-arm provision furthermore is not retroactive: "... and the provisions hereof shall not be available to a plaintiff in a cause of action arising from or growing out of any of said acts occurring prior to the effective date of this section." W.Va.Code § 56-3-33(g) (1980 Cum.Supp.). Plaintiff has made no claim that any of the alleged acts giving rise to the trust or insurance claims were committed subsequent to June 9, 1978. Therefore, it is clear to the Court that plaintiff has failed to bring his claims regarding the alleged revocation of the trust and the attempted filing of a fraudulent insurance claim within the statutory reach of the long-arm provision.[6] The statutory language does not permit service of process over the non-resident defendant as to those claims and, accordingly, the Court will dismiss those claims. As to the remaining breach of contract claim, plaintiff seeks to have the Court assert jurisdiction pursuant to W.Va. Code § 56-3-33(a)(1) (1980 Cum.Supp.), the "transacting any business in this state" provision. The West Virginia long-arm statute is a modification of Article I of the Uniform Interstate & International Procedure Act; the "transacting any business" language was adopted verbatim from § 1.03(a)(1) of that Act. Many other states, including our sister state of Virginia, have also adopted this provision which greatly expanded in personam jurisdiction over non-residents. See Note, 51 Va.L.Rev. 719 (1965); Note, 79 W.Va.L.Rev. 382 (1977). In looking to the 1135 case law of other jurisdictions regarding the interpretation of the statutory language it would appear that a commercial connotation frequently attaches itself when "transacting any business" is defined. See, e. g., Vacu-Maid, Inc. v. Covington, 530 P.2d 137 (Okl.1974); Frank v. Steel, 253 Ark. 338, 485 S.W.2d 737 (1972). This Court is of the opinion that a similarly restrictive interpretation of the West Virginia long-arm provision would be unwarranted. The West Virginia legislature has elsewhere provided for means of serving foreign corporations, regardless of whether that corporation has been authorized to transact business within the state. See W.Va.Code § 31-1-15. To assume that the legislature intended W.Va.Code § 56-3-33 to apply only to commercial activities of unincorporated businesses would be to apply an unduly limited meaning to that phrase. The term "business" need not necessarily imply an activity tinged with commercial aspects; it is enough if the activity undertaken by the non-resident defendant is such that the non-resident can or should expect to derive a benefit therefrom. The non-resident defendant's activity must be purposeful but it need not be intimately intertwined with the defendant's livelihood. Given the above interpretation, defendant Pauley can be said to have transacted business within the state of West Virginia. After consulting others for advice, she purposefully filed a claim for property located in West Virginia, or at least a claim contesting the plaintiff's "ownership" of property, with a commissioner of accounts in West Virginia. She did so with the knowledge that, if her claim were successful, she would benefit from her activity. W.Va.Code § 56-3-33(a)(1) clearly covers her activity and, since her activity occurred subsequent to the effective date of the long-arm statute and it is this activity which forms the basis of the claim asserted by the plaintiff, the Court finds it has personal jurisdiction over defendant Pauley as to the breach of contract claim. Having found that the language of the long-arm statute is sufficient to encompass plaintiff's breach of contract claim and thus would permit service of process over the defendant, the Court must next determine whether such service of process is permissible under the due process clause of the Constitution. B. DUE PROCESS The passage of W.Va.Code § 56-3-33 by the Legislature was intended to permit the courts of this state to exercise personal jurisdiction over a non-resident defendant to the extent permitted by the due process clause. This conclusion is supported by the statutory language which allows a single act or omission to be the predicate upon which jurisdiction may be based. The Supreme Court of Appeals of West Virginia has recognized that the long-arm statute "must be read in light of the traditional due process requirements." S. R. v. The City of Fairmont, 280 S.E.2d 712 (W.Va.1981). See Chase v. Greyhound Lines, Inc., 211 S.E.2d 273 (W.Va.1975); Hodge v. Sands Manufacturing Company, 151 W.Va. 133, 150 S.E.2d 793 (1966); State ex rel Coral Pools, Inc. v. Knapp, 147 W.Va. 704, 131 S.E.2d 81 (1963); Gavenda Brothers, Inc. v. Elkins Limestone Company, Inc., 145 W.Va. 732, 116 S.E.2d 910 (1960). As recognized by that court, the initial inquiry as to the requirements of traditional due process begins with International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). In International Shoe, supra, the court held that personal jurisdiction could be asserted over a non-resident defendant provided that defendant had "certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Id. at 316, 66 S.Ct. at 158 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 342, 85 L. Ed. 278 (1940)). The test used to determine whether there are sufficient minimum contacts "cannot be simply mechanical or quantitative" but rather will "depend ... upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process 1136 clause to insure." Id. at 319, 66 S.Ct. at 159. The rule enunciated in International Shoe focused upon the relationship of the defendant, his conduct and the forum state in resolving the jurisdictional question but no clear-cut parameters were established and thus courts were left to a case by case determination whenever the issue was presented. International Shoe marked the beginning of expanded state court jurisdiction over non-resident defendants. That expansion culminated in McGee v. International Life Insurance Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957), when the court evaluated not only the defendant's actual conduct but also recognized the forum state's "interest in providing effective means of redress for its residents ...." Id. at 233, 78 S.Ct. at 201. Any notion that McGee signalled an even broader analysis perhaps leading to a nationwide jurisdictional approach was soon dispelled in Hanson v. Denkla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958). In Hanson the court reiterated the International Shoe formulation of "minimum contacts" and made clear that, when determining the existence of minimum contacts, the focus should be upon the defendant, the litigation and the forum state. See Rush v. Savchuk, 444 U.S. 320, 100 S. Ct. 571, 62 L. Ed. 2d 516 (1980). The defendant must purposefully avail himself of the privilege of conducting activities within the forum state; otherwise, the forum state cannot subject the defendant to its jurisdiction. "The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." 357 U.S. at 253, 78 S.Ct. at 1239 (citing International Shoe Co., supra). The importance of Hanson's "purposefully availing" language was once again discussed by the court in Kulko v. Superior Court, 436 U.S. 84, 98 S. Ct. 1690, 56 L. Ed. 2d 132 (1978). See Wright & Miller, Federal Practice and Procedure: Civil § 1067 (Supp.1980). Any remaining notions of nationwide jurisdiction were rejected in Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977), when the court "... drastically altered principles of in rem jurisdiction by requiring that they satisfy International Shoe standards." (citation omitted). Note, 32 U.Fla.L.Rev. 802, n.39. In discussing the lack of minimum contacts in Shaffer, the court noted that "... appellants had no reason to expect to be haled before a Delaware court." Id. at 216, 97 S.Ct. at 2586. Shaffer gave little emphasis to this language and lower courts apparently paid scant attention to the "haled before a forum court" test. That this test is an element to be considered in resolving the jurisdictional "minimum contacts" requirement is now firmly established by subsequent rulings of the court. In discussing "basic considerations of fairness" in Kulko v. Superior Court, supra, the court placed emphasis upon the fact that the appellant could not reasonably have anticipated that he would be haled before a court to litigate a child support suit in a forum some 3,000 miles from his home. 436 U.S. at 97-98, 98 S.Ct. 1699-1700. The preceding discussion has focused on International Shoe, its progeny and the analysis necessary to ascertain when a nonresident defendant has had sufficient contact with the forum to permit that forum to exert personal jurisdiction over that defendant. However, minimum contacts would appear to be only one prong of the test with the second prong being the consideration of principles of interstate federalism as discussed by the Supreme Court in the recent case of World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980). In explaining the consideration to be given interstate federalism, the court stated: "... [W]e have never accepted the proposition that state lines are irrelevant for jurisdictional purposes, nor could we, 1137 and remain faithful to the principles of interstate federalism embodied in the Constitution. The economic interdependence of the States was foreseen and desired by the Framers. In the Commerce Clause, they provided that the Nation was to be a common market, a `free trade unit' in which the States are debarred from acting as separable economic entities. [Citations omitted]. But the Framers also intended that the States retain many essential attributes of sovereignty, including, in particular, the sovereign power to try causes in their courts. The sovereignty of each State, in turn, implied a limitation on the sovereignty of all of its sister States a limitation express or implicit in both the original scheme of the Constitution and the Fourteenth Amendment. "Hence, even while abandoning the shibboleth that `[t]he authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established,' [citation omitted], we emphasized that the reasonableness of asserting jurisdiction over the defendant must be assessed `in the context of our federal system of government,' [citation omitted], and stressed that the Due Process Clause ensures not only fairness, but also the `orderly administration of the laws.'" Id. at 293-294, 100 S.Ct. at 565. Thus has evolved the test by which this Court must determine whether this forum can exert personal jurisdiction over defendant Pauley. III. APPLICATION As the preceding discussion indicates, the principles of due process and federalism do not yield easily to a "cook-book" type of formulation or application. The application becomes even more difficult when a court is faced with what may be characterized, as this case may fairly be, as a "single contact" case. While plaintiff has argued that West Virginia should be considered a "single act" jurisdiction given the Virginia Court's inclination to so characterize the State of Virginia under identical statutory language, it is necessary to look not only at the quantity of contacts but more importantly at the quality of those contacts. Thus defendant Pauley's contact with this state, the filing of the claim before the Mercer County Commissioner of Accounts, must be examined carefully since it is that contact which forms the basis of plaintiff's breach of contract claim. The Court finds the nature of the defendant's conduct to be of paramount importance. The defendant knew the plaintiff was seeking items of personal property which he alleged were his by reason of gift. Defendant, at the time she filed her claim before the Commissioner, asserted that she owned those same items. Defendant knew those items of personalty were located in West Virginia; she decided, based in part upon legal advice given her in West Virginia, that the filing of a claim with the Commissioner of Accounts in Mercer County, West Virginia, was the method by which she would challenge plaintiff's claim and assert her own. Defendant's presence in West Virginia was not in the nature of a mere social visit or vacation, nor can her presence in the state be otherwise deemed fortuitous. Defendant's conduct can only be characterized as purposeful she was obviously availing herself of the benefit and protection of the laws of West Virginia and had such an expectancy from the moment she filed her claim. Moreover, had defendant pursued her claim before the Commissioner and been successful, she would have received substantial financial benefits from her activity. While defendant resides in Virginia, her place of residence is not far from Bluefield, West Virginia. Defending an action here imposes little additional financial burden upon her as might a distant or inconvenient forum. Furthermore, defendant must be deemed to have had a reasonable expectation that filing a claim would create a controversy between herself and the plaintiff. As in World-Wide Volkswagen, supra, "the defendant's conduct and connection with 1138 the forum state are such that [s]he should reasonably anticipate being haled into court there." 444 U.S. at 297, 62 L.Ed.2d at 501, 100 S.Ct. at 567. Moreover, the assertion by this Court of personal jurisdiction over the defendant does not offend principles of interstate federalism as embodied in the Constitution. Indeed, the orderly administration of the laws may best be accomplished in West Virginia since the property is located in West Virginia and West Virginia law will apply to the present dispute. This is not to say that relevant choice of law considerations bear any weight in resolving the jurisdictional question; nonetheless, this Court perceives no territorial limitation on the power of this state which would be offended by the exertion of jurisdiction in this case. Accordingly, it is hereby ORDERED that defendant's Motion in Opposition to Transfer is granted insofar as it applies to any claims alleged other than the breach of contract claim and those claims are hereby dismissed for lack of personal jurisdiction over the defendant. It is further ORDERED that defendant's Motion in Opposition to Transfer is denied insofar as it applies to plaintiff's breach of contract claim, the Court having found that it has personal jurisdiction over the defendant as to that claim pursuant to the West Virginia long-arm provision. The Clerk is hereby directed to mail certified copies of this Memorandum Opinion and Order to counsel of record herein. NOTES [1] Both plaintiff and defendant base their present claims upon letters allegedly written by their aunt which set forth, at length, itemized lists of personal property. Plaintiff further claims that the release signed by the defendant prohibits her from now asserting any claim to the aunt's personal property. The Court discusses these "gifts" and the prior litigation without intending to determine in any way whether gifts were actually made or whether the settlement contract or release can be construed to determine ownership of the personalty in dispute. [2] Defendant's answer further stated that, at the time she filed her claim with the Commissioner of Accounts, all issues concerning the ownership of the stock in various coal companies had been settled and that she did not attempt nor intend to make any claim to the Commissioner regarding the stock since the stock was not in the personal estate of Perle T. Harman at that time. The affidavit filed with the Commissioner supports her statement and she has further represented unto the Court, by counsel, that she does not contest Charles Dale Harman's ownership of that stock. [3] Subsequent to the filing of the answer, plaintiff was permitted by the Court to file an amended complaint. The amended complaint alleged two claims: (1) that defendant fraudulently, maliciously and wilfully submitted a false claim to personal property belonging to plaintiff and (2) defendant fraudulently asserted undue influence over Perle T. Harman and caused her to revoke a revocable trust agreement of which plaintiff was a residuary beneficiary. Judge Turk ordered both claims dismissed within 15 days unless plaintiff demonstrated reasons establishing the Court's jurisdiction. The complaint was dismissed and that order of dismissal was subsequently vacated. Thereafter, upon plaintiff's motion, the Court dismissed the amended complaint, without prejudice, reinstated the original complaint without amendment and transferred the case to the Southern District of West Virginia. Thus the complaint now before this Court is the original complaint without amendment which was filed in Virginia. [4] Plaintiff has submitted another proposed amended complaint to this Court. This amended complaint drops all claims but that of breach of contract and revocation of the trust. The Court, however, must rule upon plaintiff's motion with the complaint before it at the time of transfer; hence the discussion of the alleged injury to plaintiff's reputation by the attempted filing of a fraudulent insurance claim is not superfluous. [5] The pertinent parts of W.Va.Code § 56-3-33 read as follows: "(a) The engaging by a nonresident, or by his duly authorized agent, in any one or more of the acts specified in subdivisions (1) through (7) of this subsection, shall be deemed equivalent to an appointment by such nonresident of the secretary of state, or his successor in office, to be his true and lawful attorney upon whom may be served all lawful process in any action or proceeding against him, in any circuit court in this state, including any action or proceeding brought by a nonresident plaintiff or plaintiffs, for a cause of action arising from or growing out of such act or acts, and the engaging in such act or acts shall be a signification of such nonresident's agreement that any such process against him, which is served in the manner hereinafter provided, shall be of the same legal force and validity as though such nonresident were personally served with a summons and complaint within this state: "(1) Transacting any business in this state: * * * * * * "(b) When jurisdiction over a nonresident is based solely upon the provisions of this section, only a cause of action arising from or growing out of one or more of the acts specified in subdivisions (1) through (7), subsection (a) of this section, may be asserted against him. * * * * * * "(g) This section shall not be retroactive and the provisions hereof shall not be available to a plaintiff in a cause of action arising from or growing out of any of said acts occurring prior to the effective date of this section." [6] Not only does the Court lack personal jurisdiction over these claims but plaintiff may not have stated claims upon which relief may be granted. As Judge Turk noted in his now vacated order of dismissal, there is no tort of undue influence. Furthermore, a revocable trust by its nature creates interests which the settlor may revoke; the trust agreement itself appears to grant to plaintiff a right to income during his lifetime and nothing more. Plaintiff's discussion of the time when plaintiff "discovered" that the trust was revoked is irrelevant. The acts, if any occurred and if any were actionable, occurred prior to the effective date of the West Virginia statute.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519438/	522 F. Supp. 588 (1981) E. I. DUPONT de NEMOURS AND COMPANY, Plaintiff, v. DIAMOND SHAMROCK CORPORATION, Defendant. Civ. A. No. 80-137. United States District Court, D. Delaware. September 16, 1981. Richard D. Allen, Morris, Nichols, Arsht & Tunnell, Wilmington, Del., John O. Tramontine, David J. Lee, Fish & Neave, New York City, for plaintiff. C. Waggaman Berl, Jr., Wilmington, Del., John D. Foley, William S. Feiler, Israel Blum, Joseph A. Calvaruso, Morgan, Finnegan, Pine, Foley & Lee, New York City, for defendant. OPINION STAPLETON, District Judge: DuPont filed this action in the District of Delaware on March 27, 1980, seeking a declaration of the invalidity of United States Patent No. 4,192,725, issued to Ronald Dotson and Kevin J. O'Leary and assigned to Diamond Shamrock ("the Dotson '725 patent"). The Dotson '725 patent claims a process for producing chlorine and sodium hydroxide (lime) by the electrolysis of a solution of water and ordinary salt (sodium 589 chloride). The Dotson process involves the use of a membrane which transmits positively charged ions (cations) which collect in one chamber of the chloralkali cell to form hydrogen gas and sodium hydroxide leaving purified chlorine gas in the other. Two other actions, one in the Western District of New York and the other in the Eastern District of Oklahoma, also concerned the validity and infringement of Diamond's "membrane patents." Now before the Court are DuPont's motion for a preliminary injunction to restrain Diamond from proceeding against DuPont in the New York action, and Diamond's motion for a stay or transfer of this case. Since both parties agree that transfer of this matter to the Western District of New York is preferable to a stay, I will consider only the motion to transfer. I. THE FACTS A. The Diamond Patents DuPont developed what it now markets as Nafion R membranes in the early 1960's. To develop additional commercial uses, DuPont provided samples of the membrane to various chemical companies, including Diamond. Diamond is a major chloralkali producer, and its engineers and scientists discovered that Nafion membrane could be used to separate the two halves of a chloralkali cell which produced chlorine and sodium hydroxide by electrolysis.[1] Diamond obtained three patents on the membrane production method, the Dotson et al '725 patent, the Dotson '163 patent, and the Dotson et al '405 patent. One of the chief advantages of the Diamond process is that it does away with the use of mercury in chloralkali cells, eliminating a highly toxic pollutant. DuPont supplied the Nafion membrane to Diamond under a Membrane Licensing Agreement, which DuPont now asserts, gives it and its customers a license under Diamond's patents. Hooker Chemical Company, the plaintiff in the New York action, purchases Nafion from DuPont for use in chloralkali electrolytic cells, and competes with Diamond in the production of alkali metal hydroxides. B. The Litigation Hooker filed an amended complaint for a declaratory judgment of the invalidity of six Diamond Shamrock patents in December 1979. In addition to the '405 and '163 patents, Hooker also attacked the validity of four patents relating to another chloralkali production method using water-permeable diaphragms rather than a membrane as the separator. The '725 patent issued on March 11, 1980. On the same day Diamond instituted suit against Hooker and one of Hooker's customers for imminent infringement of the newly minted patent. This suit for a declaratory judgment followed on March 27. Diamond counterclaimed for infringement of the '725 and '163 patents. Four days later Hooker amended its New York complaint to include the '725 patent, and moved to enjoin Diamond from prosecuting the Oklahoma action. On April 3, 1980 Diamond added DuPont as a defendant in Oklahoma, and amended the complaint to include the '163 and '405 patents. Diamond subsequently sought to enjoin DuPont from proceeding in this case, and moved the New York court to sever and to transfer litigation of the membrane patent issues to Oklahoma. The United States District Court for the Western District of New York enjoined Diamond from going forward in Oklahoma on June 23, 1980, and denied its motion to transfer and sever.[2] On July 31, 1980 Diamond filed an answer and counterclaim, demanding a jury trial, and adding a claim for the infringement of an additional patent unrelated to the membrane process (the "'257 patent"). In September 1980 Diamond moved to add 590 DuPont as an involuntary plaintiff in New York. The New York Court denied that motion on August 18, 1981, but ordered DuPont joined under Rule 19(a), and aligned with Hooker as a party plaintiff. II. THE LAW A. Preliminary Injunction DuPont insists that this Court must enjoin Diamond from proceeding against it in New York by straightforward application of the "first filed" rule. Crosley Corp. v. Hazeltine Corp., 122 F.2d 925 (3d Cir. 1941), cert. denied, 315 U.S. 813, 62 S. Ct. 798, 86 L. Ed. 1211 (1942). Hazeltine Corporation notified Crosley that it had infringed twenty-two Hazeltine patents. Thereupon Hazeltine instituted suit in Ohio alleging the infringement of two of the twenty-two patents asserted in the notice. Crosley then filed suit in the District of Delaware claiming that the remaining twenty patents were invalid and not infringed. Hazeltine then filed nine new law suits in Ohio claiming infringement of fifteen of the patents involved in the Delaware suit. Crosley moved to enjoin the nine later Ohio suits; the district court refused. After reviewing British precedent, the Third Circuit held that the district court, once acquiring jurisdiction over a controversy, had intrinsic power to enjoin a litigant from proceeding in another forum. The Court of Appeals reversed the District Court, finding an abuse of discretion in its refusal to enjoin Hazeltine's Ohio lawsuits: The party who first brings a controversy into a court of competent jurisdiction for adjudication should, so far as our dual system permits, be free from the vexation of subsequent litigation over the same subject matter. The economic waste involved in duplicative litigation is obvious. Equally important is its adverse effect on the prompt and efficient administration of justice. 122 F.2d at 930. DuPont's reasoning is beguilingly simple. This Court acquired jurisdiction over the validity of the '725 patent before the New York court; accordingly it has prior jurisdiction over the "controversy," and must enjoin. But the Third Circuit's analysis in Kerotest Mfg. Co. v. C-O Two Fire Equpt. Co., 189 F.2d 31 (3d Cir. 1951), aff'd, 342 U.S. 180, 72 S. Ct. 219, 96 L. Ed. 200 (1952) repudiates this easy syllogism. The Kerotest litigation began when C-O Two sued Acme, a customer of Kerotest, for patent infringement in the Northern District of Illinois. Kerotest filed its own declaratory judgment action against C-O Two in the District of Delaware two months later. Then C-O Two sought to join Kerotest as a party to the Chicago litigation. The Chicago court joined Kerotest as a defendant. Kerotest then moved for an injunction in the District of Delaware, to prevent C-O Two from going forward against Kerotest in Chicago. The District Court issued an injunction and the Third Circuit reversed. The Court of Appeals agreed that the first action between C-O Two and Kerotest was filed in Delaware, but added "[n]either Crosley nor Westinghouse was intended to lay down a rule of thumb. The rule as we conceived it was designed as an aid to the parties and to effect the ends of justice." Id. 189 F.2d at 34. The Court emphasized: In the instant case the whole of the war and all the parties to it are in the Chicago theatre and there only can it be fought to the finish as the litigations are now cast. On the other hand if the battle is waged in the Delaware arena there is a strong probability that the Chicago suit nonetheless would have to be proceeded with for Acme is not and cannot be made a party to the Delaware litigation.... Why, under the circumstances, should there be two litigations where one will suffice? Id. I agree with DuPont that this Court has the authority, under Crosley, to enjoin Diamond from prosecuting its counterclaim against DuPont in New York. I decline to do so because I find that litigation of all of the issues arising under Diamond's membrane patents in one place, before one court, will better serve the ends of efficient litigation and substantive justice. 591 Diamond's counterclaim against DuPont rests on a theory of contributory infringement. To prove its case, therefore, Diamond must establish actual infringement. Diamond represents that Hooker is the only DuPont customer currently using Nafion membrane to infringe the various Diamond patents. Litigation of Diamond's counterclaim, here or in Buffalo, necessarily entails proof of Hooker's activities. In addition, the New York court must address the complexities of membrane cell technology even if this Court were to grant DuPont's injunction. Hooker intends to litigate the validity of the '405 and '163 patentsquestions over which the New York court first obtained jurisdiction as well as the '725 patent. Although Diamond asserts that the '405 and '725 patents are "quite distinct" as a matter of patent law, DuPont's reliance on this statement is unpersuasive. Diamond prosecuted the '405 patent as a continuation of the '725 patent application. Both patents are "part and parcel" of the same basic controversy. See Cosden Oil & Chem. Co. v. Foster Grant Co., 432 F. Supp. 956, 960 (D.Del.1977). Neither Crosley nor Kerotest directly controls this case. But in my view the fundamental objectives of speedy, fair, and efficient litigation would not be served by preventing the New York court from bringing this multi-patent, multi-party controversy to a conclusion. DuPont also argues that Kerotest antedated the Supreme Court's decision in Blonder-Tongue v. University of Illinois Foundation, 402 U.S. 313, 91 S. Ct. 1434, 28 L. Ed. 2d 788 (1971), which abandoned the mutuality of estoppel requirement for patent infringement cases. Under Blonder-Tongue, if this Court finds the '725 patent invalid against Diamond, Diamond is estopped from asserting its validity against Hooker in New York. This is true, but not compelling. If this Court upholds the Diamond patent, that decision will have no effect on Hooker's right to challenge these same patents, except as a matter of judicial deference. Logic dictates that a single court decide once on all three related patents. DuPont also argues that the ruling in Kerotest depended upon the assurance of a prompt disposition of the case in Chicago. Citing recent caseload statistics, DuPont urges that this matter will reach trial far more quickly in Delaware than in New York. I am not convinced. Diamond previously sought a severance of the membrane patents from the diaphragm patents in New York, and has indicated that it is willing to waive its jury demand as to the membrane patents. Although the '405 patent is present in New York and is not involved here, I consider it unlikely that trial in New York would be substantially longer or more complex than trial here. Differences in caseload are difficult to capture statistically, and I consider it entirely speculative that this Court would be able to try this case before the New York court. In any event, I see no reason to believe that the delay, if any, would jeopardize the substantive rights of either party. B. The Motion To Transfer Under 28 U.S.C. § 1404(a) "[f]or the convenience of parties and witnesses, in the interests of justice, a district court may transfer any civil action to any other district or division where it might have been brought." DuPont might have filed this action for declaratory judgment against Diamond in the Western District of New York, and it is therefore subject to transfer. Although I am mindful of the rule that "a plaintiff's choice of a proper forum is a paramount consideration" Shutte v. Armco Steel Corporation, 431 F.2d 22, 25 (3d Cir. 1970), cert. denied, 401 U.S. 910, 91 S. Ct. 871, 27 L. Ed. 2d 808 (1971) I find compelling reasons not to apply that rule in this case. The plaintiff's choice of forum carries greater weight when it will not result in duplicative litigation than it does here, where the United States District Court for the Western District of New York will hear testimony concerning the validity and infringement of the very patents here in suit. DuPont filed this action after Hooker filed its complaint in New York, and after Diamond initiated proceedings in Oklahoma. It plainly chose its own convenience in preference 592 to entering into two lawsuits already pending in federal court. As the Supreme Court wrote, in Van Dusen v. Barrack, 376 U.S. 612, 624, 84 S. Ct. 805, 813, 11 L. Ed. 2d 945 (1964), "[t]he power to defeat a transfer to the convenient federal forum should derive from the rights and privileges conferred by federal law and not from the deliberate conduct of a party favoring trial in an inconvenient forum." The preference for honoring a plaintiff's choice of forum is simply that, a preference; it is not a right. If this Court were to honor DuPont's preference it would needlessly engage two courts in the simultaneous management of discovery and the trial of the very same issues. Hooker's allegedly infringing conduct is likely to be an issue in Delaware, as it will be in New York, because Diamond must prove Hooker's infringement to establish its theory of contributory infringement by DuPont. The New York court will have to decide if the '163 patent is valid, as well as deciding the validity of the '405 patent which is related to the '725 patent before this Court. Although DuPont stresses that Wilmington is more convenient for its witnesses than is Buffalo, on balance I find Buffalo to be at least as convenient for "the parties and witnesses" to this case. Buffalo is significantly closer to Diamond's headquarters and research center in Ohio than is Wilmington, Hooker's employees are most accessible in Buffalo, and their testimony is likely to be required in any forum. These advantages counterbalance the disadvantage to DuPont in having to transport its counsel and witnesses to Buffalo. DuPont's strongest argument in opposition to transfer is alignment with Hooker. DuPont posits two grounds of prejudice. First, the New York litigation includes nine patents in all, six of which are not related to membrane cell technology. In a jury trial, DuPont fears, the weaknesses of Hooker's position with respect to the other patents in suit may "rub off" onto the jury's assessment of the membrane patents. Second, the jury may be prejudiced against Hooker, and anyone on Hooker's side, because of Hooker's involvement in the notorious Love Canal chemical dump. The New York court is in a far better position both to assess and to cure this possible prejudice. As earlier noted, Diamond agreed, at oral argument, to waive its jury demand with respect to the membrane patents. If the New York court, which is better able to observe potential prejudice to DuPont than am I at a distance of several hundred miles, finds that a single jury trial holds significant potential of prejudice to DuPont, it has all of the power it needs to bifurcate the trial and to hold a non-jury trial on the membrane cell patents. In this case, the overriding fact is that it is manifestly inconvenient for the parties and for witnesses to attend trials in both New York and Delaware. It is also a waste of judicial resources. DuPont's objections are insubstantial in comparison.[3] One additional factor to be considered, although its weight is hard to assess, is the advantage to the parties and to the Court in unified discovery regarding both the diaphragm and membrane production methods. Under all of the circumstances, I find transfer to the Western District of New York appropriate. III. CONCLUSION For the reasons stated, I will order this action transferred to the Western District of New York. Plaintiff's motion for a preliminary injunction is denied. NOTES [1] The patent in fact claims a process for producing a halogen gas and an alkali metal hydroxide. Apparently lime and chlorine are the major commercial applications of this process. [2] Hooker Chemicals v. Diamond Shamrock Corp., 87 F.R.D. 398 (W.D.N.Y.1980). [3] This certainly does not mean that I adopt a per se rule requiring transfer of any "duplicative" case. In Amoco Production Co. v. United States, 469 F. Supp. 236, 243-46 (D.Del.1979) this Court denied transfer of a multi-party energy case to the District of Columbia, although there was another case already pending. The District of Columbia Court had agreed to stay proceedings pending the outcome of the Delaware litigation, eliminating the danger of duplication. The court also found a likelihood of prejudice from delay because day-to-day pricing decisions hinged on the interpretation of the regulations involved in that case. Here, the possibility of delay in Buffalo is quite speculative, and there has been no showing of prejudice likely to flow from a delay, if any. Nor are these proceedings "considerably more advanced" than those in the Buffalo action.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519616/	522 F. Supp. 1214 (1981) Fred D. WILSON, Plaintiff, v. Attorney George GOODWYN, Chairman Edgecombe County Board of Elections, Edgecombe County Board of Elections, and the City of Rocky Mount, Defendants. No. 81-64-CIV-8. United States District Court, E. D. North Carolina, Wilson Division. October 9, 1981. 1215 Fred D. Wilson, pro se. George A. Goodwyn, Tarboro, N. C., pro se. Richard J. Rose of Spruill, Lane & McCotter, Rocky Mount, N. C., for City of Rocky Mount. ORDER LARKINS, Senior District Judge: THIS MATTER comes before the Court on a Complaint and Motion For Temporary Restraining Order filed by Plaintiff to restrain Defendants from conducting City of Rocky Mount municipal elections on October 6, 1981. Plaintiff's Complaint alleges that Defendants violated his constitutional rights by refusing to place his name on the ballot. A hearing was held on October 5, 1981, in Trenton, North Carolina, at 10:00 A.M. STATEMENT OF FACTS On September 1, 1981, Plaintiff, a resident of the City of Rocky Mount, Edgecombe County, North Carolina, filed Notice of Candidacy for election to the office of City Council for the Third Ward in the Defendant City of Rocky Mount's municipal election to be held on October 6, 1981. Plaintiff paid the filing fee of $25.00 to the Defendant City of Rocky Mount Clerk and was given receipt number 3268. Defendant City of Rocky Mount is located in Nash and Edgecombe Counties, North Carolina, and has no municipal board of elections. Defendant Edgecombe County Board of Elections conducts Defendant City of Rocky Mount municipal elections for those precincts of the municipality located in Edgecombe County, including the precinct in which Plaintiff resides. After receiving Plaintiff's Notice of Candidacy the City Clerk for Defendant City of Rocky Mount advised Defendant George Goodwyn, Chairman of the Defendant Edgecombe County Board of Elections, that Plaintiff had filed a Notice of Candidacy and that according to newspaper reports Plaintiff was a convicted felon. Upon receiving this information from the City Clerk, Defendant Goodwyn checked the records in the Edgecombe County Clerk's office in Tarboro, North Carolina, and determined that Plaintiff had been convicted of two (2) charges of fraud, a felony in violation of N.C.Gen.Stat. § 14-100, on June 10, 1981, in Edgecombe County Superior Court. Plaintiff gave Notice of Appeal to the North Carolina Court of Appeals and his appeal is still pending. Upon determining that Plaintiff was a convicted felon, Defendant Goodwyn, a licensed attorney in North Carolina, reviewed 1216 the North Carolina Constitution and cases interpreting Article VI of the Constitution, and also spoke by telephone with the North Carolina Attorney General's office, to determine whether Plaintiff was eligible to be elected to public office. Based upon his investigation Defendant Goodwyn concluded, based on Article VI of the Constitution of North Carolina, that Plaintiff was not eligible for election to the office of the City Council for the Defendant City of Rocky Mount. On September 3, 1981, Defendant Goodwyn wrote Plaintiff a letter advising him that he was ineligible to run for public office and attached to his letter a check in the amount of $25 to refund his filing fee. Defendant Goodwyn's letter to Plaintiff invited Plaintiff to contact Defendant Goodwyn if he had any questions relating to his candidacy. The letter was received by Plaintiff on September 3 or 4, 1981, and the refund check was cashed by Plaintiff approximately twenty (20) days later. Plaintiff never contacted Defendant Goodwyn concerning the letter, although he testified that he did make one (1) attempt to contact Defendant Goodwyn but was unable to reach him. None of the Defendants were contacted by Plaintiff, or anyone in his behalf, until they were notified on Friday afternoon, October 2, 1981, that Plaintiff had filed a Motion asking the Court to restrain Defendants from conducting the October 6, 1981 municipal election. CONCLUSIONS OF LAW N.C.Const. art. 6, provides that every qualified voter in North Carolina, except as disqualified in the Constitution, shall be eligible for election to public office. N.C. Const. art. 6, § 2(3) provides that no person adjudged guilty of a felony against the State of North Carolina shall be permitted to vote unless he shall first be restored to the rights of citizenship in the manner prescribed by law. Thus, it is clear that under the North Carolina Constitution a convicted felon is ineligible to be elected to public office. Plaintiff was convicted of two (2) felonies against the State of North Carolina in the Superior Court of Edgecombe County on June 10, 1981. Plaintiff has given Notice of Appeal and his appeal is presently pending in the North Carolina Court of Appeals. A person is "adjudged guilty" when his guilt has been determined by a jury, or a judge with judicial or quasijudicial powers. In re Peoples, 296 N.C. 109, 250 S.E.2d 890 (1978). Provisions in state statutes and constitutions which deny convicted felons the right to vote and hold office do not violate the various rights guaranteed by the Constitution of the United States. Green v. Board of Elections, 380 F.2d 445 (2nd Cir. 1967) cert. denied, 389 U.S. 1048, 88 S. Ct. 768, 19 L. Ed. 2d 840 (1968). Although there is no North Carolina case which speaks directly to the effect of a pending appeal upon the disqualification of a felon, the majority of state courts which have considered the question have held that a person is ineligible to hold public office once he has been convicted in the trial court, and that a pending appeal does not stay his ineligibility to hold office. A jury verdict of guilty removes the presumption of innocence which formally persisted in favor of the individual accused of committing a crime. After a conviction the law presumes that an individual is guilty and that the trial court proceedings were regularly conducted. People v. John F. McGuane, et al., 13 Ill. 2d 520, 150 N.E.2d 168 (1958), cert. denied, 358 U.S. 828, 79 S. Ct. 46, 3 L. Ed. 2d 67 (1958). Thus, a person adjudged guilty of a felony at the trial court level is ineligible to be elected to public office while his case is pending on appeal. CONCLUSION Based upon the foregoing findings of fact and conclusions of law, IT IS HEREBY ORDERED THAT PLAINTIFF'S MOTION *1217 FOR A TEMPORARY RESTRAINING ORDER BE DENIED AND THAT DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT BE GRANTED. THIS ORDER IS TO VERIFY AN ORAL ORDER RENDERED BY THIS COURT IN OPEN COURT ON MONDAY, OCTOBER 5, 1981, AT TRENTON, NORTH CAROLINA, WITH ALL PARTIES PRESENT, WHERE THIS COURT DENIED PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND GRANTED DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT. SO ORDERED.	01-03-2023	10-30-2013

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