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https://www.courtlistener.com/api/rest/v3/opinions/1590556/ | 270 S.W.3d 909 (2008)
COMAIR, INC., Appellant,
v.
Burl HELTON, Hon. Marcel Smith, Administrative Law Judge; and Workers' Compensation Board, Appellees.
No. 2007-CA-002332-WC.
Court of Appeals of Kentucky.
November 14, 2008.
*910 H. Douglas Jones, Lisa K. Clifton, Florence, KY, for appellant.
Gregory N. Schabell, Covington, KY, for appellee, Burl Helton.
Before CLAYTON, NICKELL, and TAYLOR, Judges.
OPINION
NICKELL, Judge.
Comair, Inc. (Comair) has petitioned for review of an opinion of the Workers' Compensation Board (Board) entered October 19, 2007, reversing in part, vacating in part, and remanding the Administrative Law Judge's (ALJ) opinion, order and award of benefits to Burl Helton (Helton). For the following reasons, we affirm the Board's decision.
Helton was employed by Comair as a customer service representative. His duties included operating tugs on the airport tarmac; moving carts; loading and unloading luggage; moving, refueling and cleaning aircraft; filling water reservoirs; and chocking wheels. On October 26, 2004, Helton sustained a work-related left knee injury when exiting the cargo hold of an airplane. Although he initially believed the injury to be minor, Helton quickly realized it was more severe as the pain did not subside. Shortly thereafter, Helton reported the incident to his supervisor. Prior to the injury, Helton had experienced no medical problems with his knees. He testified he had never been placed on work restrictions, curtailed any leisure or work activities, nor sought any medical treatment in relation to his knees. Following the injury, Helton has undergone three surgeries involving his left knee, culminating in a total knee replacement. He has also undergone one surgery to his right knee. During the course of his treatment, Helton was able to return to work for Comair performing light duty for two ninety-day periods but has been unable to continue working.
Helton began his treatment with Dr. Angelo Colosimo (Dr. Colosimo), an orthopedic surgeon, on November 18, 2004. Dr. Colosimo diagnosed a probable medial meniscus tear of the left knee and recommended Helton undergo an MRI.
Comair referred Helton to Dr. John Larkin (Dr. Larkin) for an examination. On November 24, 2004, Dr. Larkin performed a physical examination and diagnosed Helton with a posterior horn and mid-body tear of the medial meniscus of the left knee. Dr. Larkin agreed with Dr. Colosimo regarding the need for an MRI and further recommended Helton return to work only under light duty restrictions.
Helton underwent the recommended MRI later that day. The testing revealed: 1) low-grade tibial collateral ligament sprain; 2) medial compartment and patellofemoral compartment intermediate-grade III chondromalacia; 3) tear of the medial meniscus with degeneration; 4) capsular inflammation of the posteromedial corner *911 of the knee suggestive of a capsular sprain; 5) a prior Baker cyst which had ruptured; and 6) moderately inflamed prepatellar bursa.
On December 10, 2004, Dr. Colosimo performed a partial medial meniscectomy and removed the torn posterior horn of the medial meniscus. Dr. Colosimo noted a nonreparable tear along the periphery of the medial meniscus. He found Helton's anterior and posterior cruciate ligaments to be intact and described Helton's patellofemoral joint and the lateral compartment of the left knee as "pristine."
On January 27, 2005, Helton had a follow-up appointment with Dr. Colosimo and informed the doctor the superficial pain in his knee had subsided but he was experiencing deeper pain when he put his weight on the knee. Dr. Helton examined the knee and found an eight-degree varus malalignment with isolated medial compartment degenerative changes. Dr. Helton believed these conditions were secondary to the prior surgery and recommended a series of injections to alleviate these conditions. Helton received the injections in April 2005, but improved only minimally. Dr. Colosimo then recommended an additional surgical procedure known as a high tibial osteotomy (HTO).[1]
On June 22, 2005, Helton again saw Dr. Larkin at Comair's request. Dr. Larkin noted the MRI conducted two weeks prior to Helton's surgery indicated grade III patellofemoral chondromalacia, but Dr. Colosimo found no evidence of such damage during the surgery. Dr. Larkin noted slight varus positioning in both knees. He concurred with Dr. Colosimo's recommendation of an HTO, but believed another MRI should be performed before such surgery was undertaken.
Helton returned to Dr. Colosimo on June 28, 2005, and reported continuing knee pain. Upon examination, varus positioning was noted and the HTO was again recommended. Helton underwent the procedure on September 2, 2005. In his operative report, Dr. Colosimo stated Helton had developed the painful tibia vara due to the surgical loss of the meniscus. He later indicated Helton's injury had resulted in significant knee instability and recommended a postoperative knee brace.
Helton's recovery from the HTO surgery was slow. In early 2006, he was prescribed a bone stimulator, knee brace, and was referred to pain management. On March 21, 2006, Dr. Colosimo recommended permanent lifting restrictions. Comair then denied any further liability for Helton's treatment.
Helton subsequently began experiencing difficulties with his right knee. In July 2006, Dr. Colosimo opined any preexisting disease Helton may have had in his left knee had been dormant and asymptomatic prior to the work-related injury. Thus, he *912 believed all the medical problems related to the left knee were work-related. Dr. Colosimo further opined the right knee pain was directly related to the extended period of injury and prolonged healing of the left knee. He stated Helton had experienced a meniscus tear of the right knee since the surgery due to his compensating for the left knee injury. On September 26, 2006, Dr. Colosimo reiterated his belief Helton's right knee pain was directly related to the earlier injury. He noted Helton needed a total replacement of his left knee, but the right knee would need surgery first.
On October 6, 2006, Helton underwent a right knee arthroscopy with a medial meniscectomy. On December 11, 2006, he underwent a total left knee replacement. Following this surgery, Dr. Colosimo completed a Form 107 medical report and assessed a 20 percent whole body impairment rating for Helton's left knee, and a 9 percent whole body impairment rating for his right knee. Both of these assessments were made pursuant to the American Medical Association's Guides to the Evaluation of Permanent Impairment ("AMA Guides"). Further, Dr. Colosimo opined all of Helton's impairment was due to the work-related injury on October 26, 2004, and indicated Helton had no prior active impairment.
On June 4, 2005, Dr. Ronald J. Fadel (Dr. Fadel), an orthopedic surgeon, reviewed Helton's medical records at Comair's request. Dr. Fadel concluded only Helton's medial meniscus tear was work-related and his other health problems were the result of preexisting degenerative changes which could not have arisen in a short time nor been caused by a meniscal tear.
At Comair's request, Dr. Michael Best (Dr. Best) performed an independent medical evaluation (IME) of Helton on April 27, 2006. Dr. Best noted Helton had preexisting degenerative arthritis in his left knee at the time of the initial surgical procedure. He opined the torn meniscus was work-related, but believed Helton's remaining complaints were the result of his preexisting condition and therefore not work-related. Pursuant to the AMA Guides, Dr. Best assessed a 1 percent whole body impairment rating for the work-related injury.
Dr. Joseph L. Zerga (Dr. Zerga), a neurologist, conducted an IME of Helton on August 25, 2006. Dr. Zerga found Helton had pain in both knees and it was possible he had "some degenerative changes" in his knees. He opined the October 26, 2004, incident probably aggravated Helton's knee pain.
On November 9, 2006, Dr. Arthur F. Lee (Dr. Lee) conducted an IME of Helton at Comair's request. On December 21, 2006, Dr. Lee reviewed Helton's medical records. Dr. Lee opined the medial meniscus tear was a work-related injury and the surgical repair performed by Dr. Colosimo was the appropriate course of treatment. He further stated the subsequent treatment was performed to alleviate the symptoms from Helton's unrelated preexisting arthritis secondary to congenital tibia vara. Dr. Lee found Helton's right knee injury to be wholly unrelated to the October 26, 2004, event. Dr. Lee limited Helton's need for a total left knee replacement to his arthritic condition and said it had "nothing to do with, or almost nothing to do with his meniscus tear." He opined Helton's right knee meniscus tear resulted from "typical degenerative change." In a subsequent deposition, Dr. Lee stated Helton was "doomed already to have knee problems, it is just a question of when...." He admitted there was no evidence Helton had an active preexisting condition with either knee, only that he *913 was predisposed to have knee problems. In a supplemental report dated March 20, 2007, Dr. Lee assessed a 1 percent whole body impairment rating for Helton's left knee meniscus tear, and a possible 15 to 30 percent whole body impairment for the total knee replacement based on the AMA Guides. Dr. Lee stated he believed only the 1 percent impairment was work-related. He assessed a 1 percent whole body impairment for Helton's right knee pursuant to the AMA Guides.
The ALJ ultimately granted Helton an award of income benefits based upon a 1 percent impairment rating. The ALJ declared all medical treatments other than those directly associated with the left knee meniscectomy to be noncompensable. The ALJ was persuaded by the opinions of Drs. Best, Lee, and Fadel which indicated only the left knee meniscus tear was work-related. Although convinced Helton had other medical problems with his knees subsequent to the work-related event, the ALJ did not believe these issues to be work-related nor aroused by that injury from a previously dormant condition. Further, the ALJ found Helton had received all temporary total disability (TTD) benefits to which he was entitled based upon the earlier rulings regarding work-relatedness. The ALJ applied a one multiplier and, under Kentucky Revised Statutes (KRS) 342.730(1)(b), ruled the 1 percent whole body impairment rating became a 0.65 percent permanent impairment rating. Helton's petition for reconsideration was denied and he timely appealed to the Board.
Helton argued the record compelled a finding that his preexisting arthritis and tibia vara were dormant and nondisabling prior to his work injury and were aroused into a disabling state by the injury. He thus argued the ALJ erred in excluding much of his extensive medical treatment as noncompensable. Relying on our decision in Finley v. DBM Technologies, 217 S.W.3d 261 (Ky.App.2007), the Board agreed with Helton, finding "Helton's knees were wholly asymptomatic prior to the events of October 26, 2004." The Board stated there was no question Helton had underlying arthritis in both knees because of his preexisting tibia vara. However, the Board opined Helton's condition was dormant, nondisabling, and not impairment-ratable under the AMA Guides until after the work injury and subsequent treatment. Thus, pursuant to Finley and the long line of cases following Robinson-Pettet Co. v. Workmen's Compensation Board, 201 Ky. 719, 258 S.W. 318 (1924), the Board reversed the decision of the ALJ.
The Board found Comair had failed to prove Helton's preexisting condition was active and impairment-ratable prior to the work injury or that it was aggravated by some other intervening cause unrelated to the work injury. In remanding the matter, the Board instructed the ALJ to assess an impairment rating which included the effects of Helton's total knee replacement and to award medical benefits accordingly. The ALJ was further directed to make additional findings regarding Helton's entitlement to TTD benefits, the extent and duration of Helton's disability including his entitlement to permanent total disability benefits, the causation and compensability of Helton's right knee injury, and Helton's entitlement to vocational rehabilitation benefits. Comair timely petitioned this Court for review of the Board's decision.
Comair contends the Board erred in substituting its judgment for that of the ALJ as to the weight and credibility of the evidence. In support of this argument, Comair claims the ALJ's decision was based on substantial evidence, and the *914 Board's conclusion that the evidence established a direct causal link between Helton's work-related injury and the entirety of his following medical treatment was erroneous. After a careful review of the record, we disagree and affirm the decision of the Board.
Our function when reviewing a decision made by the Board "is to correct the Board only where the the [sic] Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky.1992). Thus, the "standard of review with regard to a judicial appeal of an administrative decision is limited to determining whether the decision was erroneous as a matter of law." McNutt Construction/First General Services v. Scott, 40 S.W.3d 854, 860 (Ky. 2001) (citing American Beauty Homes v. Louisville & Jefferson County Planning and Zoning Commission, 379 S.W.2d 450, 457 (Ky.1964)).
It is undisputed Helton suffered a work-related tear of the medial meniscus of his left knee. It is also undisputed Helton had preexisting arthritic changes in both knees secondary to congenital tibia vara. No evidence was produced indicating Helton's degenerative changes were symptomatic prior to his work-related injury, nor that the changes were impairment-ratable immediately prior to the incident. As correctly noted by the Board, "the burden of proving the existence of a pre-existing [sic] condition falls upon the employer." Finley, supra, 217 S.W.3d at 265 (citing Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky.App.1984)). It is well-established that "where work-related trauma causes a dormant degenerative condition to become disabling and to result in a functional impairment, the trauma is the proximate cause of the harmful change; hence, the harmful change comes within the definition of an injury." McNutt Construction, supra, 40 S.W.3d at 859. If an impairment is both asymptomatic and not impairment-ratable prior to the work-related injury, it is classified as a preexisting dormant condition. Finley, supra, 217 S.W.3d at 265. When such a condition "is aroused into disabling reality by a work-related injury, any impairment or medical expense related solely to the pre-existing [sic] condition is compensable." Id. This has been the law of the Commonwealth since 1924. See Robinson-Pettet Co., supra.
Our review of the record compels us to hold the Board's decision was correct in finding Comair failed to prove Helton's preexisting condition was active and impairment-ratable immediately prior to his October 26, 2004, work injury. We also agree with the Board that no credible evidence was presented indicating Helton's symptoms were the result of an unrelated intervening cause separate and apart from the work-related injury and resulting surgery.
The Board correctly noted the medical opinions relied upon by the ALJ were silent on the issue of whether Helton's preexisting degenerative changes were active and impairment-ratable prior to the work injury. The remaining medical opinions clearly indicated Helton's preexisting degenerative changes were dormant and asymptomatic prior to the work injury. It is unrefuted Helton suffered from dormant arthritic changes secondary to congenital tibia vara. Therefore, the Board correctly found as a matter of law the ALJ erred in denying Helton compensation for the arousal of his dormant condition. Finley, supra. The entirety of Helton's impairment due to his knee injury is compensable, and the Board did not improperly *915 substitute its judgment for that of the ALJ in so finding. Finally, we hold the Board correctly instructed the ALJ as to the matters to be considered on remand. Comair's arguments to the contrary are without merit and warrant no further discussion.
For the foregoing reasons, the October 19, 2007, opinion of the Board is affirmed.
ALL CONCUR.
NOTES
[1] According to the Board's opinion, "[a]n `osteotomy' is a surgical procedure whereby a bone is cut to shorten, lengthen, or change its alignment in order to alter the biomechanics of a joint and modify the force transmission through the joint. Knee osteotomy is commonly used to realign the knee structure to address arthritic damage on one side of the knee. The goal is to shift body weight off the damaged area to the other side of the knee, where the cartilage is still healthy. Osteotomy is used as an alternative treatment to total knee replacement in younger and active patients. An osteotomy procedure can enable younger, active osteoarthritis patients to continue using the healthy portion of their knee thereby delaying the need for a total knee replacement for several years. The most common type of osteotomy performed on arthritic knees is the `high tibial osteotomy,' which addresses cartilage damage on the inside (medial) portion of the knee. See http:// www.webmd.com/osteoarthritis/Osteotomy-for-osteoarthritis; See also http://orthoped ics.about.com/od/hipkneearthritis/a/osteotomy.htm." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2859502/ | cv5-025.russum
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00025-CV
Douglas Russum, Appellant
v.
Carol Wipperman, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. 94-03358, HONORABLE PAUL R. DAVIS, JR., JUDGE PRESIDING
PER CURIAM
Douglas Russum appeals by writ of error from a default judgment rendered against
him and in favor of Carol Wipperman in her suit to modify a child custody and support order.
We will affirm in part and reverse and remand in part.
BACKGROUND
Russum and Wipperman had a child while married in California. They divorced
in California in 1984. While both parents remained in California, they shared joint legal and
physical custody, though the child's primary residence was with Wipperman.
Wipperman remarried. When she and her new husband moved to Texas in 1988,
the parties stipulated to modifications of the custody and visitation order. Russum remained in
California, but expressly consented in the stipulation to the child's move.
Wipperman filed this motion to modify in Travis County in 1994. She sought to
change the terms of possession and support of the child. Russum was served with citation of the
suit in California.
The court heard the motion after Russum did not file an answer or take any action
during the allotted time. The court noted his default in its order. The court wrote that,
having examined the pleadings and having heard the evidence and arguments of
counsel, [the court] finds that all necessary pre-requisites of law under the Uniform
Child Custody Jurisdiction Act (UCCJA), and in particular Section 11.53 of the
Texas Family Code, have been satisfied to confer status jurisdiction on this Court
of this case, the child, and the subject matter of this cause. The Court finds that
Texas is the child's home state and was the child's home state at the
commencement of the proceeding.
The court then modified the possession provisions. It also ruled that "[a]s additional child
support, DOUGLAS RUSSUM is ORDERED AND DECREED to pay 50 percent of all health
care expenses not paid by insurance that are incurred by or on behalf of the parties' child . . . ."
(Emphasis added.)
DISCUSSION
By one point of error, Russum contends that the court erred in granting a default
judgment against him because it did not acquire jurisdiction over a nonresident in accordance with
Texas Family Code section 11.051. Wipperman denies that claim, and asserts by counterpoints
that Russum's point is unduly vague and that his case should be dismissed for failure to bring
forth a statement of facts. We reject her assertion of undue vagueness. The success of the
litigants' remaining positions differs according to the portion of the court's order at issue.
The requirements for a direct attack on a judgment by writ of error are clear.
General Elec. Co. v. Falcon Ridge Apartments Joint Venture, 811 S.W.2d 942, 943 (Tex. 1991).
A party to the suit who did not participate in the trial must bring the writ within six months of the
date on which the judgment was signed. Tex. R. App. P. 45. The error complained of must be
apparent from the face of the record. Falcon Ridge, 811 S.W.2d at 943. The only disputed
element is whether the error is apparent. The usual presumption of validity of judgments does
not apply when we review jurisdictional findings in a default judgment by writ of error. Id.;
McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965); Lakeside Leasing Corp. v. Kirkwood
Atrium Office Park Phase 3, 750 S.W.2d 847, 849 (Tex. App.--Houston [14th Dist.] 1988, no
writ).
Contrary to Wipperman's counterpoint, Russum's failure to bring forward a
statement of facts does not resolve this appeal. Russum had the burden to present an adequate
record on appeal. Tex. R. App. P. 50(d). He could have relieved that burden in part by proving
that no statement of facts existed. See Jaramillo v. Liberty Mut. Fire Ins. Co., 694 S.W.2d 585,
587 (Tex. App.--Corpus Christi 1985, writ ref'd n.r.e.). The court's modification order states,
however, that the proceedings were recorded. Absent a statement of facts when one is potentially
available, we may conclude that every fact necessary to support the judgment, within the limits
of the pleadings, was proved at trial. Id. The deficiency of the pleadings rescues part of
Russum's case.
Russum's appeal fails regarding the modification of the visitation order. The
UCCJA provides that Texas courts can exercise jurisdiction over child custody matters if Texas
is the child's home state. Tex. Fam. Code Ann. § 11.53(a)(1)(A) (West 1986). (1) Custody
determinations are court decisions, orders, and instructions providing for the custody of the child,
including visitation. Tex. Fam. Code Ann. § 11.52(2) (West 1986). This definition renders
Russum's residence irrelevant to the jurisdiction determination; the court need not have personal
jurisdiction over him to make decisions concerning custody and visitation. See In re S.A.V., 837
S.W.2d 80, 84 (Tex. 1992). Wipperman pleaded and the court found that Texas is the child's
home state. We presume the record supported this finding. This finding satisfies the
jurisdictional requirement for the child custody matters. We overrule the point as it pertains to
the child custody modifications.
He succeeds, however, as to the modification of the allocation of the child's health
care costs, however. Consistent with Wipperman's pleadings, the court specifically asserted
jurisdiction over the entire matter under the UCCJA. The UCCJA, however, expressly excepts
from its definition of custody determination "any decision relating to child support or any other
monetary obligation of any person." Tex. Fam. Code Ann. § 11.52(2). The assessment of health
care costs clearly affects a monetary obligation; the order expressly states that the health care costs
are "additional child support." The court's finding of jurisdiction under the UCCJA does not
empower it to make this modification.
Unlike suits to modify child custody orders, suits to modify child support
obligations require personal jurisdiction. S.A.V., 837 S.W.2d at 83. The Family Code defines
the means by which a Texas court can acquire jurisdiction over a nonresident in such cases. Tex.
Fam. Code Ann. § 11.051 (West Supp. 1995). (2)
The trial court did not exercise personal jurisdiction over Russum. It expressly
exercised only jurisdiction over the child and the subject matter. Wipperman did not plead, and
the court did not find, facts supporting any exercise of personal jurisdiction over Russum.
Because we can only presume facts within the limits of the pleadings, the absence of such
pleadings prevents us from presuming that the evidence adduced at the hearing supported the
exercise of personal jurisdiction and the judgment. See Jaramillo, 694 S.W.2d at 587. This error
is apparent from the record. We sustain point one as it pertains to the child support modification.
CONCLUSION
We reverse the part of the order that modifies the child support obligations and
remand that portion of the cause to the trial court for further proceedings. We affirm the
remainder of the order.
Before Chief Justice Carroll, Justices Aboussie and Jones
Affirmed in Part; Reversed and Remanded in Part
Filed: June 7, 1995
Do Not Publish
1. The Family Code has been restructured by the passage of H.B. 655. Act of Apr. 6,
1995. Because the revisions do not affect the substance of this case, we will cite the code
provisions with the citations in effect during the trial.
2. The court may exercise personal jurisdiction if:
(1) the person is personally served with citation in this state;
(2) the person submits to the jurisdiction of this state by consent, by entering
a general appearance, or by filing a responsive document having the effect
of waiving any contest to personal jurisdiction;
(3) the child resides in this state as a result of the acts or directives of the
person;
(4) the person resided with the child in this state;
(5) the person resided in this state and provided prenatal expenses or support
for the child;
(6) the person engaged in sexual intercourse in this state and the child may
have been conceived by that at of intercourse; or
(7) there is any basis consistent with the constitutions of this state and the
United States for the exercise of the personal jurisdiction.
Tex. Fam. Code Ann. § 11.051. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1590667/ | 686 N.W.2d 235 (2004)
STATE v. McATEE.
No. 03-1549.
Court of Appeals of Iowa.
May 14, 2004.
Decisions without published opinions. Reversed and Remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590849/ | 972 So. 2d 184 (2008)
PIETRASS
v.
STATE.
No. 2D06-5717.
District Court of Appeal of Florida, Second District.
January 4, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595736/ | 621 N.W.2d 70 (2000)
260 Neb. 954
Cynthia M. BROWN, now known as Cynthia M. Morales, Appellant,
v.
Dwight E. BROWN, Jr., Appellee.
No. S-99-1444.
Supreme Court of Nebraska.
December 22, 2000.
*74 James M. Kelley, of Berry, Kelley, Hansen & Reiman, Lincoln, for appellant.
Terrance A. Poppe and Joseph E. Dalton, of Morrow, Poppe, Otte, Watermeier & Phillips, P.C., Lincoln, for appellee.
HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
GERRARD, J.
I. NATURE OF CASE
Cynthia M. Brown, now known as Cynthia M. Morales, appeals the district court's denial of her request to be granted sole custody of her minor children and for leave of the court to relocate with the children from Lincoln, Nebraska, to Suffolk County, New York. The primary question presented in this appeal is whether the procedures and criteria articulated by this court in Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999), apply to a situation in which the parties share joint legal and physical custody of the children.
II. PROCEDURAL BACKGROUND
Two children were born of the marriage of Cynthia and her former husband, Dwight E. Brown, Jr. (Dwight): Dwight III, born May 27, 1993, and Jasmine, born February 3, 1995. The parties were divorced in 1997, and the divorce decree entered by the district court on February 19, 1997, provided that the parties would share joint legal and physical custody of the children. The decree required Dwight to pay child support in the amount of $120 per month.
On September 14, 1998, Dwight filed a petition to modify the decree, seeking a reduction of his child support obligation. On October 6, Cynthia filed a cross-petition to modify the decree. Cynthia alleged that a material change in circumstances had occurred in the following particular respects: (1) Cynthia had graduated from *75 nursing school, (2) Cynthia had secured employment in New York, (3) Dwight had remarried, and (4) Cynthia's income would increase when she began her employment at her new job in New York. Cynthia sought to have sole legal and physical custody of the children placed with her and asked the district court to grant leave for her to relocate with the children to New York.
Dwight filed an amended petition to modify the decree on November 4, 1998. In addition to seeking a reduction of his child support obligation, Dwight alleged that Cynthia's lifestyle and living arrangements were inappropriate for the children and that Cynthia did not provide for the daily needs of the children. Dwight alleged that it would not be in the best interests of the children to be separated from Dwight. Dwight prayed that custody of the children be granted to him and that the district court order child support to be paid by Cynthia.
Trial was had on September 7, 1999, and on November 22, the district court entered an order modifying the decree such that Cynthia would be required to pay child support in the amount of $155 per month and Dwight's obligation to pay child support would be terminated. Neither party has appealed the child support modification. The district court determined that it was not in the best interests of the children to set aside the arrangement of joint custody. The district court found that Dwight was the physical custodian of the children no less than 50 percent of the time and that in some areas, such as health care and school, Dwight had been the primary custodian. The district court found that under the standards set forth in Farnsworth v. Farnsworth, supra, the quality of life would not be improved for the children in New York and that the best interests of the children did not favor such a move. The district court dismissed Cynthia's cross-petition to modify and dismissed Dwight's request to modify custody. Cynthia timely appeals. Dwight has not cross-appealed.
III. FACTUAL BACKGROUND
Cynthia testified at the hearing in the district court that she had graduated from nursing school in May 1998 and had been working since graduation as a registered nurse. She testified that she was earning $17 per hour and working approximately 72 hours during each 2-week pay period at Madonna Rehabilitation Hospital in Lincoln.
Cynthia testified that at the time of hearing, she had been offered employment at the New York University Medical Center (NYU) in New York City. She would be working full time as a registered nurse on the evening shift, from 3 to 11 p.m., and would earn a base salary of $25 to $30 per hour, plus approximately $7,000 annually in shift and experience differentials. Cynthia further testified that her pay would increase with advanced experience and education. Cynthia stated that the NYU job would be a professional advancement because NYU is a teaching hospital.
Cynthia testified that the NYU job would also include other benefits, such as insurance for herself and the children. Cynthia stated that NYU would pay for her to complete her master's degree and that the children would be able to obtain a free college education at NYU. Cynthia admitted that the children would be able to receive the free education at NYU regardless of whether or not the children lived in New York. Cynthia testified that she would not be able to take this particular job with NYU if she did not report for work on September 21, 1999, but that she would be able to take another available position with NYU after that date. Cynthia stated that she would not move to New York if she was not allowed to take the children with her.
Cynthia testified that she had arranged for temporary housing with her cousin in Suffolk County, on Long Island. Cynthia *76 stated that she had located affordable housing for herself and the children in Suffolk County and that the schools in Suffolk County would be adequate for the children. Cynthia admitted that housing in Suffolk County would be more expensive than comparable housing in Lincoln. Cynthia stated that her cousin would be able to care for the children while Cynthia was at work.
Cynthia also testified that her extended family, including her parents, lived on the east coast and that Dwight's extended family also lived on the east coast. Dwight testified that some of his extended family, including his mother and some of his siblings, lived on the east coast, but that Dwight's remaining extended family, including his father and other siblings, lived in Nebraska.
Both parties testified that Cynthia and Dwight had divided their time with the children on a 50-50 basis. Dwight testified that the usual division of time was such that Dwight picked up the children from Cynthia at 3:30 p.m. every Sunday, and kept them until 3:30 p.m. on Wednesday or Thursday of alternate weeks, such that each party would have the children 4 days one week and then 3 days during the next week. Cynthia testified that if granted full custody and leave to relocate, she was willing to give Dwight visitation during summers, holidays, and spring breaks, and would be willing to pay for air travel so that Dwight could have visitation. Dwight testified that it would be financially difficult for him to travel to New York for visitation.
Cynthia testified that the New York area had many family activities that the children would enjoy, "from baseball games to art museums to beaches." Cynthia testified that both children were bright and adaptable. Cynthia admitted that she had not taken the children to museums or art galleries available in Lincoln. Dwight testified that he was aware of cultural opportunities in New York and in Lincoln, but that "[a]ny time you spend with a child is beneficial, it doesn't matter where you take them." Dwight testified that he had taken the children to the "Elephant Hall" museum, and Dwight's wife, Shelley Brown, testified that they participated in many family activities, including visiting the zoo and parks, going for ice cream, visiting Elephant Hall and the children's museum, and going to children's movies.
Cynthia also testified regarding her belief that the children, as members of a racial minority, would be better off in New York because the area is more racially diverse. Cynthia stated that her children had not been taunted or discriminated against in Lincoln, but did mention that they were "stared at" on the street. Dwight testified that Dwight III's school in Lincoln was racially diverse.
Dwight testified that he had remarried, that he and Shelley had one additional child, and that Shelley was pregnant at the time of the hearing. Dwight testified that he was working 15 to 20 hours a week at the Lighthouse's youth recreation center and part time as a licensed minister. Dwight testified regarding his plans to attend seminary and become an ordained minister. Dwight also testified that he had recently accepted a promotion that would result in his working more hours. Dwight testified that he had opportunities to move from Lincoln but that he had decided to stay because he believed Lincoln was the best environment for the children.
Dwight testified that Cynthia's proposed move to New York was the "driving force" behind his request for a change in custody. Dwight stated that he believed that the joint custody arrangement was best for the children but that he believed that it would be best for the children to remain with him if Cynthia moved to New York. Dwight stated that he always put his children first but that Cynthia often put herself first, ahead of the children. Dwight testified that he had concerns that *77 Cynthia did not feed the children properly. Dwight admitted that he had a child support arrearage of $1,577.
Dwight III's kindergarten teacher testified that she saw Dwight at school frequently; Dwight was a volunteer crossing guard and often had lunch at school with Dwight III and his classmates. The kindergarten teacher stated that Dwight was an active and attentive parent to both children. The teacher testified that Cynthia also frequently came to the school for lunch and to help in class. Dwight III's teacher testified that he had progressed well in school and was a very well-adjusted child. Dwight testified that he was planning to enroll Jasmine in preschool. Dwight testified that Cynthia had taken the children to the doctor once, but that he was primarily responsible for their medical and dental care.
Cynthia admitted that Dwight is a good father and stated that she had no concerns about Shelley's also caring for the children. Cynthia stated that Dwight had a positive relationship with the children and that she had no concerns about Dwight adequately providing for the needs of the children. Shelley testified that Dwight had a very close relationship with his children. The executive director of the Lincoln Council on Alcoholism and Drugs, a friend and former coworker of Dwight, testified that Dwight was a model father and that she had asked Dwight to mentor her stepson, who is a single parent. The executive director of the Lighthouse also testified that Dwight was a model parent.
IV. STANDARD OF REVIEW
Child custody determinations, and visitation determinations, are matters initially entrusted to the discretion of the trial judge, and although reviewed de novo on the record, the trial judge's determination will normally be affirmed absent an abuse of discretion. Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000); Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from acting, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Weinand v. Weinand, 260 Neb. 146, 616 N.W.2d 1 (2000).
V. EFFECT OF JOINT LEGAL AND PHYSICAL CUSTODY
1. MATERIAL CHANGE IN CIRCUMSTANCES
We have stated that in order to prevail on a motion to remove a minor child to another jurisdiction, the custodial parent must first satisfy the court that he or she has a legitimate reason for leaving the state. After clearing that threshold, the custodial parent must next demonstrate that it is in the child's best interests to continue living with him or her. Jack v. Clinton, supra; Farnsworth v. Farnsworth, supra. Dwight argues, however, that this standard should not apply where the parent seeking removal is not the sole "custodial parent," but instead shares joint legal and physical custody.
We defined the concepts of legal and physical custody, in the context of child support, in Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999). We stated:
Joint legal custody has been generally defined as joint "`authority and responsibility for making "major" decisions regarding the child's welfare'".... In contrast, joint physical custody has been described as "joint `responsib[ility] for "minor" day-to-day decisions' and the exertion of continuous physical custody by both parents over a child for significant periods of time."
(Citations omitted.) Id. at 898, 601 N.W.2d at 544. There is no dispute that the instant case is one of joint legal and physical custody.
*78 Dwight argues that because Cynthia seeks a modification of the custody arrangements, as well as leave to move to New York, Cynthia must first prove a material change in circumstances affecting the best interests of the children. Ordinarily, custody of a minor child will not be modified unless there has been a material change of circumstances showing that the custodial parent is unfit or that the best interests of the child require such action. Smith-Helstrom v. Yonker, 249 Neb. 449, 544 N.W.2d 93 (1996). The party seeking modification of a decree of dissolution bears the burden of showing a material change of circumstances affecting the best interests of a child. Parker v. Parker, 234 Neb. 167, 449 N.W.2d 553 (1989). See, also, Smith-Helstrom v. Yonker, supra.
We agree that Cynthia, in seeking to modify the custody arrangement from joint legal and physical custody to sole custody, bears the burden of showing a material change in circumstances such that the best interests of the children require such action. We also determine, in accordance with long-established principles, that in order to further prevail on a motion to remove the minor children from the state, the relocating parent must first satisfy the court that she or he has a legitimate reason for leaving the state and then demonstrate that it is in the children's best interests to live with that parent in the new location. Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000). As a practical matter, the existence of a joint physical custody relationship is likely to make it more difficult for the relocating parent to meet these burdens. Nonetheless, whether we are considering a modification of custody or a proposed removal from the state, the best interests of the children are the paramount considerations in our determination. Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999).
Despite the children's best interests being the central concern, it is helpful to set forth appropriate factors to consider in analyzing the children's best interests in a proposed removal from Nebraska under joint custody circumstances. We have stated that removal of a child from the state, without more, does not amount to a change of circumstances warranting a change of custody. State ex rel. Reitz v. Ringer, 244 Neb. 976, 510 N.W.2d 294 (1994), overruled on other grounds, Cross v. Perreten, 257 Neb. 776, 600 N.W.2d 780 (1999). Nevertheless, when considered in conjunction with other evidence, such a move may well be a change of circumstances that would warrant a modification of the decree. Marez v. Marez, 217 Neb. 615, 350 N.W.2d 531 (1984). We hold that in cases of joint legal and physical custody, a legitimate reason for leaving the state, taken together with an expressed intent to do so, may constitute a material change in circumstances affecting the best interests of a child, sufficient to require examination of the best interests of the child.
To require that a parent, seeking leave to remove a child from the state, must prove a material change of circumstances beyond a legitimate reason and intent to move would (1) deny a parent with joint legal and physical custody the opportunity to seek leave to relocate prior to some change in another, unrelated circumstance, and (2) would have the effect of sentencing such a parent to immobilization. See Harder v. Harder, 246 Neb. 945, 524 N.W.2d 325 (1994) (award of custody not to be interpreted as sentence to immobilization). Furthermore, such a rule would encourage parents to change the circumstances by moving without permission, presenting the court with a fait accompli demanding consideration of the issue. See Jack v. Clinton, supra (discouraging temporary relocation prior to ruling on permanent removal).
For these reasons, we conclude that the better rule is that a parent sharing joint legal and physical custody must first prove a material change in circumstances *79 affecting the best interests of a child by evidence of a legitimate reason to leave the state, together with an expressed intention to do so. See, e.g., Blaich v. Blaich, 114 Nev. 1446, 971 P.2d 822 (1998); McQuade v. McQuade, 901 P.2d 421 (Alaska 1995); Osteraas v. Osteraas, 124 Idaho 350, 859 P.2d 948 (1993); Voit v. Voit, 317 N.J.Super. 103, 721 A.2d 317 (1998). Proving such an intent does not necessitate that physical custody be modified, but the intent to move illustrates the likelihood that there is a need for considering some sort of modification that would reflect the new circumstances. See Osteraas v. Osteraas, supra.
Once the party seeking modification has met this threshold burden, the separate analyses of whether custody should be modified and whether removal should be permitted necessarily become intertwined. In order to prevail on her motion to modify physical custody, Cynthia must show that such a modification is in the best interests of the children, and we cannot consider those best interests without considering the effect on the children of the move to New York that Cynthia proposes to make. In short, because Cynthia seeks modification of custody so that she can move to New York, the questions whether modification is in the best interests of the children and whether the move to New York is in the best interests of the children inevitably merge into the single question whether the best interests of the children are furthered by Cynthia's obtaining sole physical custody and moving the children to New York.
2. BURDEN OF PROOF
We next consider the issue of what burden of proof should be applied where the party seeking removal does not have sole custody, but shares joint legal and physical custody. Generally, courts that have addressed shared physical custody cases treat them differently than cases involving a primary residential parent. See Janet Leach Richards, Children's Rights v. Parents' Rights: A Proposed Solution to the Custodial Relocation Conundrum, 29 N.M. L.Rev. 245 (1999). In such cases, courts are particularly reluctant to allow one parent to relocate with the children. Edwin J. Terry et al., Relocation: Moving Forward, or Moving Backward?, 10 J. Am. Acad. Matrim. Law. 167 (1998).
Several courts have held that when one party files a removal motion in a joint physical custody situation, neither party bears the burden of proving that relocation of the child is either favorable or detrimental to the child's best interests. Rather, each party carries an equal burden to prove that the new custody arrangement proposed by that party should be adopted by the court. Id. See, e.g., In re Marriage of Burgess, 13 Cal. 4th 25, 913 P.2d 473, 51 Cal. Rptr. 2d 444 (1996); Ayers v. Ayers, 508 N.W.2d 515 (Minn.1993); Jaramillo v. Jaramillo, 113 N.M. 57, 823 P.2d 299 (1991); In re Marriage of Chester, 907 P.2d 726 (Colo.App.1995). In those cases, an existing presumption in favor of allowing relocation of a custodial parent was deemed inappropriate in instances of joint physical custody. See id.
At least one court has determined that an existing presumption in favor of a custodial relocating parent should be reversed where joint physical custody is concerned, so that the relocating parent bears the burden of proving the benefits of the relocation. See Voit v. Voit, 317 N.J.Super. 103, 721 A.2d 317 (1998). Other jurisdictions continue to apply a single test for relocation regardless of whether the parties have operated under a joint custody arrangement. See Terry et al., supra. See, also, e.g., Blaich v. Blaich, 114 Nev. 1446, 971 P.2d 822 (1998) (same burden placed on relocating parent regardless of joint custody); McQuade v. McQuade, 901 P.2d 421 (Alaska 1995) (best interests test applied de novo regardless of joint custody); In re Marriage of Creedon, 245 Ill. App. 3d 531, 615 N.E.2d 19, 185 Ill. Dec. 724 (1993) (statute establishing best interests test applied to all relocation cases).
*80 Under Nebraska law, the burden has been placed on the custodial parent to satisfy the court that he or she has a legitimate reason for leaving the state and to demonstrate that it is in the child's best interests to continue living with him or her. See, Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000); Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999). Because the burden of proof in relocation cases is already placed on the parent seeking leave to relocate, it is unnecessary for us to reallocate that burden in cases of joint legal and physical custody. See Blaich v. Blaich, supra.
As noted earlier, as a practical matter, the existence of a joint physical custody relationship is likely to make it more difficult for a joint physical custodian to meet the burden associated with relocation. Compare In re Marriage of Creedon, 245 Ill.App.3d at 537, 615 N.E.2d at 24, 185 Ill.Dec. at 729 ("to the extent that an order of joint custody actually reflects a closer than customary relationship between the noncustodian and the child, the existence of a joint custody order may be considered in determining whether removal is in a child's best interests"). This fact, however, is not attributed to a heightened burden of proof, but simply to the unavoidable practical consequences of joint legal and physical custody, and it is considered in the context of whether a proposed move is in the best interests of the child.
VI. APPLICATION OF LAW TO FACTS
As previously stated, in order to prevail on a motion to remove a minor child to another jurisdiction, the custodial parent must first satisfy the court that he or she has a legitimate reason for leaving the state. After clearing that threshold, the custodial parent must next demonstrate that it is in the child's best interests to continue living with him or her. Jack v. Clinton, supra; Farnsworth v. Farnsworth, supra. As determined above, this standard applies to the instant case despite the fact that Cynthia and Dwight share joint legal and physical custody and are thus both custodial parents.
1. LEGITIMATE REASON FOR LEAVING STATE
By determining this case on the basis of the best interests of the children, the district court implicitly determined that Cynthia had satisfied the threshold question whether she had a legitimate reason for leaving the state. See Jack v. Clinton, supra (emphasizing that parent seeking relocation must first satisfy court of legitimate reason for leaving state).
We have little difficulty concluding, in our de novo review, that the district court did not abuse its discretion in making this determination. We have concluded that a custodial parent's "`firm offer of employment with a flexible schedule in close proximity to [the custodial parent's] extended family constitutes a legitimate reason'" in a removal case. Jack v. Clinton, 259 Neb. at 206, 609 N.W.2d at 334, quoting Kalkowski v. Kalkowski, 258 Neb. 1035, 607 N.W.2d 517 (2000). In this case, Cynthia presented evidence of a firm offer of employment at NYU that would enhance her career and evidence that her extended family lived in the New York area, thus meeting her burden of showing a legitimate reason to leave the state.
2. BEST INTERESTS OF CHILDREN
We have set forth three broad considerations ordinarily to be employed in determining whether removal to another jurisdiction is in a child's best interests: (1) each parent's motives for seeking or opposing the move; (2) the potential that the move holds for enhancing the quality of life for the child and the custodial parent; and (3) the impact such a move will have on contact between the child and the noncustodial parent, when viewed in the light of reasonable visitation arrangements. Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000); Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999). We will address each of these *81 considerations in turn, as appropriately tailored to the present circumstance of joint legal and physical custody.
(a) Each Parent's Motives
In the district court, there was no evidence presented which would allow us to conclude that either party was seeking to frustrate the custodial rights of the opposing party, or otherwise acting in bad faith. While Cynthia argues on appeal that Dwight is simply attempting to "dominate" the lives of the children, and Dwight argues that Cynthia does not really believe that her life would be improved by the NYU job, these arguments are unsupported by the evidence presented in the district court. Rather, the record depicts two parents who both care about their children and are trying to do what they believe is best for the children. We are unpersuaded by the interpretations of the record offered by the parties' counsel and conclude, in our de novo review, that each parent has quite valid reasons for taking their respective positions on the removal of the children from Nebraska. See Farnsworth v. Farnsworth, supra.
(b) Quality of Life
In determining the potential that the removal to another jurisdiction holds for enhancing the quality of life of the parent seeking removal and of the children, we have previously considered several pertinent factors, including: (1) the emotional, physical, and developmental needs of the children; (2) the children's opinion or preference as to where to live; (3) the extent to which the relocating parent's income or employment will be enhanced; (4) the degree to which housing or living conditions would be improved; (5) the existence of educational advantages; (6) the quality of the relationship between the children and each parent; (7) the strength of the children's ties to the present community and extended family there; and (8) the likelihood that allowing or denying the move would antagonize hostilities between the two parties. See, Jack v. Clinton, supra; Farnsworth v. Farnsworth, supra. This list should not be misconstrued as setting out a hierarchy of factors. Depending on the circumstances of a particular case, any one factor or combination of factors may be variously weighted. Farnsworth v. Farnsworth, supra.
Not surprisingly, the parties have each chosen to emphasize different factors in applying the Farnsworth analysis to this case. Generally, Cynthia's argument rests upon the third, fourth, and fifth factors, as she urges this court to consider the benefits of the NYU employment offer and the advantages to the children of living in New York. Dwight relies more upon the sixth and seventh factors and argues that the advantages of the move, to the extent that they are present, are outweighed by the harm of separating the children from Dwight.
(i) Enhancement of Income or Employment
With regard to the third factor, the extent to which Cynthia's income or employment will be enhanced, we note that Cynthia presented substantial evidence that the employment opportunity at NYU would offer her increased salary and benefits from her current position. Evidence was also adduced, however, that some of those benefits might be offset by the higher cost of living in the New York area, particularly with respect to the cost of obtaining adequate housing.
Although no evidence was presented showing that similar compensation would not be available in Nebraska, Cynthia did testify at length about her current and previous employment, and we conclude, in our de novo review, that Cynthia has presented evidence that her income and employment will be enhanced by the move to New York. This factor would weigh in favor of granting leave to relocate the children if Cynthia were granted sole custody, as the living conditions and employment opportunities for the mother *82 are interwoven with the well-being of the custodial parent. See Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999).
(ii) Improvement of Housing or Living Conditions
a. Housing
With regard to the fourth factor, the degree to which housing or living conditions would be improved, Cynthia's testimony was essentially unrebutted that adequate housing would be available in New York, comparable to the quality of the children's current residences. As previously noted, however, Cynthia admitted that such housing was likely to be more expensive than in Lincoln. Available housing does not weigh in favor of or against the relocation and does not factor into our de novo review.
b. Living ConditionsCultural Opportunities
Cynthia argues that the metropolitan area of New York City, as compared to Lincoln, would present "virtually unlimited" educational, cultural, and entertainment opportunities. Cynthia thus argues that relocation to New York would improve the quality of life for the children. The essence of Cynthia's argument seems to be that New York City, culturally speaking, is the center of the universe.
We confronted a similar argument in Farnsworth v. Farnsworth, supra, in which the mother, seeking leave to relocate from Omaha, Nebraska, to Denver, Colorado, argued that Denver would offer access to a wider variety of outdoor activities and professional sporting events. We concluded that although access to such activities was commendable, the quality and quantity of access to such events was not significantly greater in Denver than in Omaha, and did not weigh this factor significantly in our de novo review. Id. See, also, Carraher v. Carraher, 9 Neb.App. 23, 33, 607 N.W.2d 547, 556 (2000) (declining to "put this court's `Chamber of Commerce' seal of approval on residing in the mountains").
Although the evidence presented in the district court was sparse, we cannot disagree with the contention that New York has more museums, theaters, and other cultural and social activities than does Lincoln. The flaw in Cynthia's argument, however, is the conclusion that such opportunities suffice to improve the living conditions for the children. In the first place, Dwight adduced testimony that Cynthia had not taken advantage of the cultural and social opportunities available in Lincoln, and therefore, Dwight argues, we cannot assume that the availability of cultural activities in New York means that Cynthia will allow the children to take advantage of them.
Second, the dispositive question is not where the children will have more fun, but where the living conditions will further their best interests. Simply put, the considerations one includes when choosing a vacation destination are not necessarily the same as those included when deciding where to raise a child. While Cynthia testified that New York offers more cultural and entertainment opportunities than does Lincoln, that testimony does not allow us to conclude that New York is, ipso facto, a better place to raise a child. See Carraher v. Carraher, supra (concluding that Estes Park, Colorado, and Wahoo, Nebraska, are undoubtedly different places, but declining to state that one is "better" than the other).
c. Living ConditionsRacial Diversity
Cynthia further argues that the children, as members of a racial and ethnic minority, would be better off in the diverse population of New York than the less diverse community of Lincoln. The record does not specifically state to which minority group the children belong.
We have not previously discussed the degree to which racial identity might be weighed in the context of custody determinations. The Nebraska Court of Appeals, *83 however, recently confronted a similar question in Ebirim v. Ebirim, 9 Neb.App. 740, 620 N.W.2d 117 (2000). In that child custody dispute, the father argued that his son's biracial heritage should be considered in determining custody and that the child should have been placed with him because he lived in the racially diverse community of Omaha, while the mother lived in Brownville, Nebraska, which the mother testified had no African-American children. Id.
The Court of Appeals determined that "the collected cases indicate that [race] is generally considered as one factor among several in evaluating the best interests of the child," id. at 743, 620 N.W.2d 117, and concluded that the race of the child could be considered as "one factor among several... in custody determinations," id. at 744, 620 N.W.2d 117, citing Annot., 10 A.L.R. 4th 796 et seq. (1981). Accord J.H.H. v. O'Hara, 878 F.2d 240 (8th Cir. 1989), cert. denied 493 U.S. 1072, 110 S. Ct. 1117, 107 L. Ed. 2d 1024 (1990). Compare Palmore v. Sidoti, 466 U.S. 429, 104 S. Ct. 1879, 80 L. Ed. 2d 421 (1984) (finding Equal Protection Clause violated where race of child was sole factor in making custody determination).
We agree with the Court of Appeals and likewise conclude that a child's racial identity is one factor among several that may be considered in making custody determinations. In the instant case, we conclude that the relative racial diversity of Lincoln and New York is an appropriate consideration in evaluating the living conditions for the children.
Based on the evidence presented to the district court, however, we do not find that racial identity and diversity should be given significant weight in our de novo review. Cynthia admitted that the children had not been taunted or otherwise discriminated against in Lincoln, and Dwight testified that Dwight III's school was racially diverse. While Cynthia testified that the "New York City metropolitan area" was more racially diverse than Lincoln, no evidence was adduced regarding the schools or neighborhoods of Suffolk County, where Cynthia planned to live, nor was any evidence presented regarding the general state of race relations, or instances of racial discrimination, in New York City. The record indicates that with respect to diversity, the living conditions of the children are satisfactory in Lincoln, given that there is no evidence of discrimination and that their local school is ethnically diverse. Based on the record presented, we cannot conclude that the greater racial diversity of the New York City metropolitan area would improve the living conditions for the children.
(iii) Educational Advantages
With respect to the fifth factor, the existence of educational advantages for the children, Cynthia testified generally that the schools in Suffolk County, New York, would be adequate for the needs of the children. No evidence was adduced that the primary and secondary schools in New York were any better or worse than the schools in Lincoln. Cynthia argues that the availability of a free education at NYU is an educational advantage for the children, although she conceded that this opportunity would be available to the children regardless of whether or not they lived with her in New York. Because Cynthia testified that she would not take the NYU job unless allowed to take the children with her, we must assume that the opportunity to attend NYU for free would be lost to the children if Cynthia was denied leave to take them to New York. Nonetheless, we cannot conclude that such a factor should be given significant weight in our de novo review, given the current age of the children and the consequent remoteness and unpredictability of their possible postsecondary education.
(iv) Quality of Relationship Between Children and Parents
The sixth factor, the quality of the relationship between the children and each parent, is relied upon by Dwight in his *84 opposition to relocation. Although each party pointed to flaws of the opposing party in district court, the parties' consistent testimony established that both parents are actively involved in the lives of their children. It is uncontested that the children spend approximately half their time with each parent and that both parents have been intimately involved in all aspects of raising the children.
Cynthia relies on the fact that Dwight was, at the time of hearing, behind in his child support payments. We have stated, however, that as a general rule, the custodial parent's right of support and the noncustodial parent's right of visitation are entitled to separate enforcement. Welch v. Welch, 246 Neb. 435, 519 N.W.2d 262 (1994). Although stated in terms of visitation, the principle is equally applicable to custodial determinations. While we consider Dwight's child support arrearage in our de novo review, we do not consider it as a significant reason to modify custody from Dwight to Cynthia under the circumstances of this case.
Testimony from several witnesses established that Dwight has very close relationships with both children. While moving to New York would preserve the relationship of the children with Cynthia, the move would, as discussed in more detail later in this opinion, detrimentally affect the close relationship between Dwight and the children. We also note that Cynthia's proposed schedule at NYU, working the evening shift, would seem to interfere, especially during the school year, with Cynthia's own ability to maintain her relationship with the children.
Overall, this factor in our de novo review weighs significantly against relocation of the children.
(v) Ties to Community and Extended Family
The evidence adduced in the district court indicated that living in New York would place the children closer to Cynthia's extended family and some of Dwight's extended family, who live generally in the New York City and Philadelphia metropolitan areas. Dwight also testified, however, that his remaining extended family lives in the Lincoln area. No evidence was adduced regarding the ties of the children in the community, other than some brief testimony regarding Dwight III's friends at school.
Members of the extended family of the children live in both Lincoln and New York. Furthermore, we note that although Cynthia had no other children, Dwight and Shelley had another child, and Shelley was pregnant at the time of the hearing. In considering the familial relationships of the children, we would be remiss if we did not consider the relationship of the children to their younger siblings. Allowing the children greater contact with members of Cynthia and Dwight's extended family must be balanced against contact with Dwight's remaining extended family and, perhaps most importantly, the children's siblings. In balance, we conclude that this factor does not weigh significantly for or against permitting relocation of the children.
(vi) Remaining Factors
There is little dispute over the remaining factors. Both parents essentially concede that the emotional, physical, and developmental needs of the children can be met by either party. There is no evidence which would allow us to determine if allowing or denying the move would antagonize hostilities between the parties, given that, aside from the dispute over relocation, the parties seem to have established a relatively positive and commendable relationship where the welfare of the children is concerned.
(vii) Quality of LifeConclusion
In our de novo review, we conclude that while Cynthia presented evidence that the quality of life for the children might be improved by certain aspects of living in New York, this improvement would be offset, *85 if not outweighed, by the effect of diminishing the relationship between Dwight and the children. The district court did not abuse its discretion in finding that the quality of life would not be improved for the children by the move to New York.
(c) Impact of Move on Contact Between Dwight and Children
The final consideration is the impact of relocation upon Dwight's ability to maintain a meaningful relationship with his children. See, Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000); Kalkowski v. Kalkowski, 258 Neb. 1035, 607 N.W.2d 517 (2000); Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999). Cynthia's testimony in the district court established that she was willing to permit Dwight extensive visitation during summer and school holidays and to pay some of Dwight's travel expenses.
Nonetheless, it cannot be questioned that the move to New York would dramatically affect Dwight's contact with the children. As we stated in Kalkowski v. Kalkowski, 258 Neb. at 1047, 607 N.W.2d at 527:
We conclude that the question turns on the third Farnsworth consideration, i.e., the impact of relocation upon the ability of Kelly to maintain a meaningful relationship with his children. In Farnsworth, we noted that while a move from Omaha to Denver would necessarily lessen the frequency of visits with the child, the distance between the two cities was not one which would prevent the noncustodial parent from seeing his child on a regular basis. The same cannot be said of the distance between Ogallala, Nebraska, and Camrose, Alberta, Canada. The greater distance, less direct travel connections, and the significant expense and time involved in traveling between the two locations are significant factors which the trial court properly considered.
The instant case presents similar considerations. Although the availability of travel connections is greater between Lincoln and New York, the distance, expense, and time involved in such travel is appropriately considered in evaluating the degree to which the move would affect Dwight's contact, and relationship, with his children.
Although Cynthia made substantial and commendable concessions on the issue of visitation, it cannot be reasonably questioned that such visitation would allow Dwight significantly less contact with the children and would make it nearly impossible for him to maintain the relationship that he currently enjoys. Cynthia's proposed visitation schedule, while generous, would nonetheless be a poor substitute for the daily interaction Dwight and the children now share. This consideration is significant in our de novo review, given the context of joint legal and physical custody.
(d) Best InterestsConclusion
After our de novo review of the record, detailed above, we cannot conclude that the district court abused its discretion in finding that it was not in the best interests of the children to permit Cynthia to relocate with them to New York. Although Cynthia has a legitimate reason for leaving the state, and certain aspects of living in New York would improve the quality of life for the children, the district court did not abuse its discretion in determining that those facts were outweighed by the detrimental effect that the move would have on the relationship of the children with Dwight. Cynthia's sole assignment of error is without merit.
VII. CONCLUSION
The evidence reveals two loving parents actively involved in the lives of two well-adjusted children operating under a commendable joint legal and physical custody arrangement. For the reasons discussed above, we conclude on the basis of our de novo review that the district court did not abuse its discretion in determining that Cynthia did not show the best interests of the children would be served by modifying *86 custody and granting her leave to move with the children to New York. We therefore affirm the judgment of the district court. The parties' respective motions for attorney fees on appeal are denied.
AFFIRMED.
WRIGHT, J., concurring in the result.
I concur in the result. In my opinion, where the parties have joint legal and physical custody, the burden of proof is upon the party seeking to relocate to first show there has been a material change in circumstances that would justify a change in the custody arrangement. Custody is the first issue that must be decided. Obviously, relocation of the children would amount to a modification of custody by transferring physical custody to the parent who desires to relocate. Therefore, I would require the parent who desires to relocate to prove that the new custody arrangement should be adopted by the court.
CONNOLLY, J., joins in this concurrence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2631428/ | 249 P.3d 1119 (2011)
The PEOPLE of the State of Colorado, Plaintiff-Appellant
v.
Christina Maria CASTANEDA, Defendant-Appellee.
No. 10SA255.
Supreme Court of Colorado, En Banc.
February 7, 2011.
*1120 Don Quick, District Attorney, Seventeenth Judicial District, Michael J. Milne, Senior Deputy District Attorney, Brighton, Colorado, Attorneys for Plaintiff-Appellant.
William P. Buckley, The Law Firm of Leonard M. Chesler, P.C., Denver, Colorado, Attorneys for Defendant-Appellee.
Justice HOBBS delivered the Opinion of the Court.
Christina Maria Castaneda was charged with possession of a schedule II substance found during a search of her vehicle following her arrest for driving under the influence and leaving the scene of an accident. When Castaneda was contacted on the side of Interstate 25, she reported to the State Trooper that she had not driven the car involved in the accident. Instead, Castaneda claimed that a six-foot tall woman named "Jowanna" had been driving.
The trial court ruled that the police did not have probable cause to arrest Castaneda because the facts did not support a conclusion that she had been driving the vehicle. We disagree, and reverse the suppression order. We hold that the totality of the circumstances known to the officer Castaneda's presence as the only person with the vehicle, matching license plates, alcohol on her breath, and the seat pulled too far forward to accommodate a six-foot tall driver supported probable cause for the arrest of Castaneda as the driver.
In this interlocutory appeal, the prosecution challenges the trial court's suppression of evidence obtained as a result of the arrest of the defendant, Christina Maria Castaneda. The police found Castaneda by the side of Interstate 25 with a vehicle that matched the description given by a person whose vehicle had been hit by a driver who had fled the scene of the accident.
Castaneda told the police that the vehicle belonged to her mother, Castaneda was a passenger in the car, and a six-foot tall woman named "Jowanna" had been driving. At the suppression hearing, the prosecution established the following facts, among others. The black sedan owned by Castaneda's mother was involved a collision on Interstate 76. When the police located the vehicle, Castaneda was the only woman with the sedan. The arresting officer observed that Castaneda had alcohol on her breath and had the driver's seat of the sedan pulled too far forward to accommodate the six-foot tall woman Castaneda claimed had been driving.
The trial court ruled that the police did not have probable cause to arrest Castaneda because the facts did not support a conclusion that she had been driving the vehicle. We disagree. We hold that the totality of the circumstances support probable cause for the arrest of Castaneda as the driver in this case. Accordingly, we reverse the suppression order.
I.
In the early morning hours of July 23, 2009, Colorado State Trooper Jeremy Hostetter responded to a reported hit-and-run accident on Interstate 76. Hostetter contacted the driver who had been hit, Randal Brossart, inside his Jeep on the side of Interstate 25 near 50th Avenue in Denver. Hostetter observed damage to the driver's side. Brossart told Hostetter that a black, four-door sedan had collided with him on Interstate 76 and that he had followed the black car, but eventually pulled over. Brossart provided the license plate number of the black sedan as "655SWW" but was unable to describe any details about the driver or whether there was more than one person in the car.
Trooper Hostetter then responded to a report that Denver police officers had contacted a black sedan on the side of Interstate 25 near 38th Avenue. When he arrived, Hostetter saw a black sedan on the side of the road and determined from its license plate that it was the car reportedly in the accident with Brossart's Jeep. The black sedan had minor damage to its passenger side. Hostetter observed a woman outside the vehicle and a man walking around the scene.
Trooper Hostetter asked the woman, who identified herself as Christina Castaneda, if *1121 the black sedan was her vehicle and she replied that it was her mother's. When asked if she had been involved in an accident, Castaneda replied that she did not remember and denied she had been driving the vehicle. Castaneda reported that a woman named "Jowanna" had been driving and she did not know Jowanna's last name. Castaneda claimed Jowanna was about six feet tall and had walked away from the scene after stopping the car. Trooper Hostetter looked into the car and noticed that the driver's seat was moved too far forward to accommodate a six-foot tall person. Hostetter is six feet tall.
Hostetter also talked to the man who was at the scene. He identified himself as Kenneth Chavez. Chavez told Hostetter that Castaneda flagged him down and asked for help to change a flat tire. Chavez did not know Castaneda and reported that he had not seen anyone else near the car besides Castaneda. Chavez said that Castaneda told him she had called her mother for help to get herself and the car home.
While speaking with Castaneda, Trooper Hostetter observed the strong odor of alcohol on her breath and asked Castaneda if she was willing to perform voluntary roadside maneuvers. Castaneda refused to perform the maneuvers, responding, "No. I don't know why I need to do that. I wasn't driving the vehicle." Hostetter then placed Castaneda under arrest, handcuffing her and putting her in his patrol vehicle. Trooper Hostetter inventoried the vehicle, and in the course of his inventory, discovered a black backpack. Castaneda asked Hostetter if he could get her purse, which he found inside the backpack. As Hostetter pulled the backpack out, money fell out and when he looked through her purse to make sure there were no weapons inside, he discovered two white bags with a white rock-like texture. Castaneda testified that although she asked for her purse, she never consented to have her purse searched.
The prosecution charged Castaneda with possession of more than a gram of a schedule II controlled substance,[1] a class four felony; possession of drug paraphernalia,[2] a class two petty offense; leaving the scene of an accident,[3] a class two traffic misdemeanor; failure to report an accident or return to the scene,[4] a class two traffic misdemeanor; driving under the influence,[5] a class one traffic misdemeanor; failure to provide proof of insurance,[6] a class one traffic misdemeanor; and careless driving,[7] a class two traffic misdemeanor.
Castaneda pled not guilty and filed a motion to suppress and/or dismiss, claiming that since no witness saw her driving the car allegedly involved in the hit-and-run incident, the officer lacked probable cause to arrest her. Castaneda attached affidavits to the motion from two persons claiming that they saw Castaneda in the rear seat of her car and another woman driving when Castaneda left the MGM bar on July 23, 2009 at 1:30 a.m.
At the suppression hearing, the trial court determined that, although there was reasonable suspicion for Hostetter's initial contact with Castaneda, there was not probable cause for an arrest. The trial court recited the standard for finding probable cause and concluded that, while there was probable cause that an offense had been committed, there was not probable cause that Castaneda had committed that offense. The trial court found that the only evidence linking Castaneda to driving was the position of the driver's seat, indicating a person six feet tall could not have driven the car. The trial court found that more credibility could be given to Castaneda's assertion that she had not been driving the car because of the lapse of time between when Castaneda left the bar 1:30 a.m. and the time when the accident was reported approximately 2:53 a.m. On this basis, the trial court could not "find under the totality of the circumstances" that there *1122 was probable cause to legally arrest Castaneda. The trial court suppressed the results of the search as the fruits of an illegal arrest.
II.
We hold that the totality of the circumstances support probable cause for the arrest of Castaneda as the driver in this case.
A.
Probable Cause
1. Standard of Review and Applicable Law
We review a suppression order with deference to the trial court's findings of historical fact and do not disturb those findings if they are supported by competent evidence in the record. People v. McClain, 149 P.3d 787, 789 (Colo.2007). However, we review de novo the trial court's application of the law. People v. Syrie, 101 P.3d 219, 222 (Colo. 2004).
A warrantless arrest is only valid if supported by probable cause, with the burden of proof on the prosecution to establish probable cause. People v. Washington, 865 P.2d 145, 147 (Colo.1994). Both the United States Constitution and the Colorado Constitution prohibit unreasonable searches and seizures. U.S. Const. amends. IV, XIV; Colo. Const. art. II, § 7. Thus, evidence seized as the result of a warrantless arrest is only admissible at trial if probable cause supported the arrest. People v. Robinson, 226 P.3d 1145, 1150 (Colo.App.2009).
Whether probable cause was adequate at the time of the warrantless arrest is a question of law evaluated by considering the totality of the circumstances at the time of the arrest. Id. at 1149. Probable cause exists when "the objective facts and circumstances available to a reasonably cautious officer at the time of arrest justify the belief that (1) an offense has been or is being committed (2) by the person arrested." Id. at 1149 (citations omitted).
A probable cause analysis necessarily turns on common-sense conclusions about human behavior and probabilities evaluated by experience with the facts and practices of everyday life. Id. Moreover, probable cause may exist even where innocent explanations are offered for conduct. Id. The fact that innocent explanations may be imagined does not defeat a probable cause showing. Id. Instead, the police are entitled to draw appropriate inferences from circumstantial evidence, even though such evidence might also support other inferences. People v. Schall, 59 P.3d 848, 852 (Colo.2002) (citations omitted).
2. Application to this Case
Castaneda argues that although Trooper Hostetter had reasonable suspicion to make an investigative stop, he did not have probable cause to arrest her. We disagree.
First, there is evidence that Castaneda's mother's black sedan was the one involved in the collision with Brossart. Hostetter found Castaneda with the damaged black sedan on the side of Interstate 25 just a few miles south of the place of his interview with Brossart. The license plate Brossart reported matched the license plate on Castaneda's mother's vehicle. Thus, the first prong of probable cause, that an offense had been committed, was clearly established by Brossart's report and Hostetter's identification of the black sedan.
Only the second prong the identity of the person to be arrested is contested in this case. Despite Castaneda's statements to the contrary, Trooper Hostetter had ample circumstantial evidence available to him at the time of the arrest to make a reasonable inference that Castaneda had driven the black sedan and left the scene of the collision. Most significantly, Castaneda was the only person at the scene linked to the black sedan. Hostetter confirmed through another witness, Chavez, that Castaneda had been the only person present when he arrived at the scene to help.
In addition to Castaneda's solitary presence with the sedan on the side of a busy interstate, Trooper Hostetter observed that the driver's seat of the black sedan was too far forward to accommodate a six-foot tall person. The position of the seat contradicted *1123 Castaneda's assertion that a six-foot tall woman named "Jowanna" had driven the car and walked away after stopping on the shoulder of Interstate 25. Finally, as Hostetter continued to talk with Castaneda, he noted the strong odor of alcohol on her breath, allowing him to reasonably infer that Castaneda could have been driving carelessly and attempted to escape, conscious of her liability if she were to be found intoxicated at the scene of an accident.
Castaneda argues that the above facts should be construed in her favor. For example, Castaneda points to evidence that she was on the side of the road and reportedly called her mother for help getting home rather than driving herself for the proposition that she also did not drive the sedan away from the bar.[8] Although the burden of establishing probable cause to oppose a motion to suppress rests with the prosecution, we need not view every inference in a light favorable to the defendant. Schall, 59 P.3d at 852 (police entitled to draw appropriate inferences from circumstantial evidence); Washington, 865 P.2d at 147. Instead, the totality of the circumstances analysis requires that we consider "whether the facts available to a reasonably cautious officer at the moment of arrest warranted the belief that an offense had been or was being committed by the person arrested." People v. Diaz, 793 P.2d 1181, 1183 (Colo.1990).
In this case, based on the totality of the circumstances, Trooper Hostetter reasonably concluded that Castaneda had been the driver of the black sedan. The facts known to the officer included matching license plates, alcohol on Castaneda's breath, and the driver's seat pulled too far forward for a six-foot tall person. The circumstances at the time included Castaneda's presence as the only person linked to the sedan on the shoulder of Interstate 25. These facts and circumstances were more than enough to establish probable cause for Castaneda's legal arrest. Washington, 865 P.2d at 147. The evidence seized as a result of Castaneda's arrest is admissible at trial. Robinson, 226 P.3d at 1150.
III.
Accordingly, we reverse the trial court's suppression order and remand this case for further proceedings consistent with this opinion.
NOTES
[1] § 18-18-405(1), (2)(a)(I)(A), C.R.S. (2010).
[2] § 18-18-428, C.R.S. (2010).
[3] § 42-4-1602, C.R.S. (2010).
[4] § 42-4-1606(1), C.R.S. (2010).
[5] § 42-4-1301(1)(a), C.R.S. (2010).
[6] § 42-4-1409(3), C.R.S. (2010).
[7] § 42-4-1402, C.R.S. (2010).
[8] Castaneda supports this argument with the sworn statements of Yolanda Robago and Michelle Mendez, both friends of Castaneda who gave statements that they saw Castaneda leave the MGM bar riding in the back passenger side of her black sedan, with an unidentified woman driving, and an unidentified man in the front passenger side. Because these statements were not available to the arresting officer, we do not consider them in our totality of the circumstances analysis of the probable cause determination he made prior to making the arrest. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596126/ | 530 N.W.2d 367 (1995)
In re Request of Governor William J. JANKLOW for An Advisory Opinion Concerning the Constitutionality of House Bill 1163, Seventieth Session, South Dakota Legislative Assembly, 1995.
No. 19106.
Supreme Court of South Dakota.
March 17, 1995.
TO HIS EXCELLENCY, WILLIAM J. JANKLOW, THE GOVERNOR OF THE STATE OF SOUTH DAKOTA.
Pursuant to the authority vested in the Governor under Article V, § 5 of the South Dakota Constitution, you have requested an opinion of the Supreme Court on an important question of law concerning House Bill 1163 (attached) which involves the exercise of your executive power or a solemn occasion. The factual basis of your request is:
That on March 1, 1995, the South Dakota State Senate passed House Bill 1163 by *368 a vote of 1916, and on March 3, 1995, House Bill 1163 passed the South Dakota House of Representatives by a vote of 38-31. I have the bill on my desk, unsigned. A copy of House Bill 1163 as passed by the South Dakota Legislature is attached to this request for the Court's review.
House Bill 1163 does the following:
1. Delays the effective date of House Bill 1350, the four percent medical provider tax, from July 1, 1995, to August 1, 1995;
2. Establishes a special election to be held on July 11, 1995;
3. Proposes to the voters of the State of South Dakota the option of a one-half cent increase in various sales and services, use and excise taxes under SDCL chapters 10-45, 10-46, and 10-58, as an alternative to the four percent medical provider tax. If the sales tax increase alternative is consented to and adopted by the people, the provider tax is simultaneously repealed.
The revenues generated from the medical provider tax or the one-half cent increases in the state sales and service, use and excise tax rates will be deposited in the state general fund and utilized for the operation of state government including state aid to education and property tax relief.
Since House Bill 1163 was passed by both houses of the Legislature and sent to me for approval or veto, I am deeply concerned that the contemplated action be proper and constitutional. Court declarations declaring all or a portion of House Bill 1163 unconstitutional or contrary to state law either prior to or following the vote of the electorate would have enormous impact on the operation of state government, devastating economic consequences, and legislative changes in the funding for public schools, funding for special education and the legislation limiting the growth of local government will be placed in jeopardy and be unworkable. Given the legal questions that are raised and the substantial consequences of adverse court rulings in the future, I am hereby requesting your opinion as to the constitutionality and legality of House Bill 1163. Specifically, I am requesting the Court to issue an advisory opinion on the following question of law interpreting the State Constitution:
If the election called for by House Bill 1163 results in a yes vote by the people of South Dakota, will the sales tax increase enacted by the people at the July 11, 1995, election be a constitutionally valid enactment by the people?
In other words, may the South Dakota Legislature by a majority vote, under its inherent powers under S.D. Const. Art. III, § 1 as interpreted by this Court in State ex rel. Wagner v. Summers [33 S.D. 40], 144 N.W. 730 (S.D.1913), and Wyatt v. Kundert, 375 N.W.2d 186 (S.D. 1985), propose a measure to be voted upon by the people of the State of South Dakota which would have the effect of increasing the various state sales, use and excise tax rates by one-half cent?
Article V, § 5 of the South Dakota Constitution provides, in pertinent part, "The Governor has authority to require opinions of the Supreme Court upon important questions of law involved in the exercise of his executive power and upon solemn occasions." See In re Construction of Constitution, 3 S.D. 548, 551, 54 N.W. 650, 651-52 (1893). Because the question posed here does not involve the discharge of the duty of the executive, we may render this advisory opinion only if the circumstances constitute a "solemn occasion."
In his special concurrence in Poppen v. Walker, 520 N.W.2d 238, 250 (S.D.1994), Chief Justice Miller summarized the prominent cases in which this Court has rendered advisory opinions:
Historically, we have given advisory opinions on significant state issues. In 1990, we advised Governor Mickelson on the extent of his authority to make financial commitments concerning the state's involvement in a corn wet-milling plant. In re Request for an Advisory Opinion, 456 N.W.2d 546 (S.D.1990). We advised Governor Janklow concerning his authority to appoint members of a public authority to issue revenue bonds to finance agricultural loans and business enterprises. In re Request for an Advisory Opinion, 387 N.W.2d 239 (S.D.1986). We also rendered *369 an opinion to Governor Janklow concerning the interpretation of statutes following cancellation of the state's liability insurance policy. In re Request for Opinion of the Supreme Court, 379 N.W.2d 822 (S.D. 1985). Governor Kneip obtained an opinion regarding the constitutionality of an act authorizing a bridge authority to issue revenue bonds. In re Opinion of the Supreme Court, 257 N.W.2d 442 (S.D.1977). We gave an opinion to Governor Boe pertaining to the constitutionality of legislation for tax relief. In re Opinion of the Judges, 81 S.D. 629, 140 N.W.2d 34 (1966).
Further, Chief Justice Miller's concurrence implied that circumstances which have a significant statewide impact on the welfare of the citizens of the state, especially those with the potential for a devastating economic impact, constitute a solemn occasion in which we should give an advisory opinion. 520 N.W.2d at 250.
Guidance in determining whether this request presents a solemn occasion is also provided by a review of those cases in which we have been called upon to issue advisory opinions. These cases reveal eight factors involved in determining if a solemn occasion exists:
1. whether an important question of law is presented; Construction of Constitution, 3 S.D. 548, 54 N.W. 650;
2. whether the question presents issues which are pending before the Court; In re Constitutionality of Proposed South Dakota Video Lottery Amendment, # 18830 (letter of Miller, C.J., declining request as two petitions for rehearing were pending in the underlying case); In re Constitutionality of South Dakota Video Lottery, # 18806 (sameone petition pending);
3. whether the matter involves private rights or issues of general application; Opinion of the Judges, 81 S.D. 629, 140 N.W.2d 34;
4. whether alternative remedies exist; In re Request for Opinion of Supreme Court, 321 N.W.2d 101 (S.D.1982); In re Opinion of the Supreme Court, 87 S.D. 399, 209 N.W.2d 668 (S.D.1973); In re Request of the Governor for an Advisory Opinion Concerning the Constitutional Effect of Pending Referendum upon 1985 House Bill 1366, # 15122 (order vacating order granting request for advisory opinion issued when circuit court action was amended to include issues upon which advisory opinion had been requested);
5. whether the facts and question are final, or ripe, for an advisory opinion; In re Construction of Article III, § 5, of the South Dakota Constitution, 464 N.W.2d 825 (S.D.1991); Opinion of the Judges, 81 S.D. 629, 140 N.W.2d 34;
6. the urgency of the question; Request for Opinion of Supreme Court, 379 N.W.2d 822;
7. whether the issue will have a significant impact on state government or the public in general; Poppen, 520 N.W.2d at 250; and
8. whether the Court has been provided an adequate amount of time to consider the question; Constitutionality of South Dakota Video Lottery.
In applying these factors, we note that the question presented here involves compliance with our state constitution. Generally, we consider constitutional issues to be important questions of law. The issue is not currently pending before this or any other court of the state, and poses a general question which would not constitute an adjudication of private rights. An alternative remedy does exist here, however, as a private individual could bring suit to enjoin the election pending a circuit court ruling on the constitutionality of the entire election proposal.
In the past, we have answered questions regarding the constitutionality of legislation before the Governor for his approval or disapproval, and did not reject such a request on the basis that the matter was not final. Opinion of the Judges, 81 S.D. 629, 140 N.W.2d 34. It is also accepted that this matter has a degree of urgency not only because the election is scheduled to occur in less than four months, and the legislature will return in a matter of days for its final day of the 1995 legislative session, but also because our advice at this time will permit *370 the Governor the opportunity to veto a bill which may be constitutionally infirm. There also seems to be little doubt that the issues of property tax relief, and the method by which the state proposes to tax its citizens, have a significant impact on both state government and the population in general.
The weight of the foregoing factors supports the rendering of an advisory opinion and we hereby honor your request.
You have asked:
If the election called for by House Bill 1163 results in a yes vote by the people of South Dakota, will the sales tax increase enacted by the people at the July 11, 1995, election be a constitutionally valid enactment by the people?
In other words, may the South Dakota Legislature by a majority vote, under its inherent powers under S.D. Const. Art. III, § 1 as interpreted by this Court in State ex rel. Wagner v. Summers [33 S.D. 40], 144 N.W. 730 (S.D.1913), and Wyatt v. Kundert, 375 N.W.2d 186 (S.D.1985), propose a measure to be voted upon by the people of the State of South Dakota which would have the effect of increasing the various state sales, use and excise tax rates by one-half cent?
For the reasons set forth below, the answer to both questions is no.
In 1978, the people approved a constitutional amendment strictly limiting the method by which certain tax rates can be increased in South Dakota. The amendment (S.D. Const. art. XI, § 13) finds its origin in House Joint Resolution 501, introduced during the 1977 legislative session. This resolution proposed and submitted to the electors, at the next general election, an amendment to Article XI of the South Dakota Constitution specifically relating to taxation. Despite some amendments, the original resolution did not differ in any significant degree from the current language of art. XI, § 13 insofar as its delineation of the two methods by which the rate of taxation may be increased. The 1977 resolution was approved at the general election conducted on November 7, 1978. The vote was 116,647 for and 103,621 against. As a result, what is now S.D. Const. art. XI, § 13 came into being.
S.D. Const. art XI, § 13 permits only two methods by which the rate of taxation on personal or corporate income or on sales or services can be increased:
The rate of taxation imposed by the state of South Dakota on personal or corporate income or on sales or services, or the allowable levies or the percentage basis for determining valuation as fixed by law for purposes of taxation on real or personal property, shall not be increased unless by consent of the people by exercise of their right of initiative or by two-thirds vote of all the members elect of each branch of the Legislature.
S.D. Const. art. XI, § 13.
In the absence of ambiguity, the language in the constitution must be applied as it reads. Levasseur v. Wheeldon, 79 S.D. 442, 112 N.W.2d 894 (1962). Here, the language utilized in S.D. Const. art. XI, § 13 is clear, certain and unambiguous and our obligation is to apply its plain meaning. To increase the rate of income, sales or service taxes a) the people must exercise their right of initiative, or b) each branch of the legislature must pass the increase by a two-thirds vote. While the letter accompanying the request for this opinion suggests, as an alternative interpretation, that the legislature's referral of House Bill 1163 to a public vote fulfills the initiative requirements of S.D. Const. art. XI, § 13, we disagree. The constitutional provision itself distinguishes between the method by which the legislature may increase certain tax rates and the people's ability to increase tax rates by "exercise of their right of initiative." S.D. Const. art. XI, § 13 (emphasis added). Moreover, under settled law an "[i]nitiative is the constitutional reservation of power in the people to propose bills and laws and to enact or reject them at the polls independent of the legislative assembly." Byre v. City of Chamberlain, 362 N.W.2d 69, 79 (S.D.1985) (emphasis added). The legislature's referral of a tax rate increase for a public vote simply cannot constitute an initiative of the rate increase "independent of the legislative assembly." Thus, in this case, the people did not initiate House Bill 1163. In addition, House Bill *371 1163 passed each branch of the legislature by merely a majority vote, not a two-thirds vote. Consequently, House Bill 1163 does not meet the dictates of S.D. Const. art XI, § 13.
The legislature has the inherent authority to refer its own acts. Wyatt v. Kundert, 375 N.W.2d 186 (S.D.1985). However, art. XI, § 13 of the South Dakota Constitution, which specifies the two exclusive methods by which the rate of taxation can be increased, is a strict limitation on the legislature's inherent authority to refer its acts increasing the rate of taxation. Based on this strict limitation, it is our opinion that those portions of House Bill 1163 which would result in a tax rate increase if approved by a vote of the electorate would be unconstitutional.
Respectfully submitted this 17th day of March, 1995.
/s/Robert A. Miller
CHIEF JUSTICE ROBERT A. MILLER
/s/Richard W. Sabers
JUSTICE RICHARD W. SABERS
/s/Robert A. Amundson
JUSTICE ROBERT A. AMUNDSON
/s/John K. Konenkamp
JUSTICE JOHN K. KONENKAMP
ATTACHMENT
AN ACT
ENTITLED, An Act to provide for a special election to provide a sales tax increase as an alternative to the medical services provider tax for property tax relief.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. There shall be a special election held in this state on July 11, 1995. Any political subdivision of this state may combine any special election of such subdivision with the election required by this section. The state shall reimburse each county for any costs incurred as a result of this section.
Section 2. Notwithstanding the provisions of § 12-13-9, the ballot explanation shall state: "A yes vote is a vote to fund property tax relief through a sales tax increase and a no vote is a vote to fund property tax relief through a medical services provider tax. If the ballot measure is approved, a one-half cent sales tax increase will go into effect on September 1, 1995, and the medical services provider tax previously enacted by the Legislature will not go into effect. If the ballot measure is not approved, the medical services provider tax previously enacted by the Legislature will go into effect on August 1, 1995.
Section 3. That House Bill No. 1350 as previously enacted by the Seventieth Legislature be amended as follows:
Section 21. The provisions of this Act apply only to gross receipts from services performed after August 1, 1995.
Section 4. At the special election required by section 1 of this Act, the following bill shall be the question:
"FOR AN ACT ENTITLED, An Act to increase the retail sales and services tax, use tax, and amusement device excise tax and to repeal the medical services provider tax.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 10-45-2 be amended to read as follows:
10-45-2. There is hereby imposed a tax upon the privilege of engaging in business as a retailer, a tax of four and one-half percent upon the gross receipts of all sales of tangible personal property consisting of goods, wares, or merchandise, except as taxed by § 10-45-3 and except as otherwise provided in this chapter, sold at retail in the State of South Dakota to consumers or users.
Section 2. That § 10-45-5 be amended to read as follows:
10-45-5. There is imposed a tax at the rate of three percent upon the gross receipts of any person from engaging in the business *372 of leasing farm machinery or irrigation equipment used for agricultural purposes and four and one-half percent upon the gross receipts of any person from engaging or continuing in any of the following businesses or services in this state: abstracters; accountants; architects; barbers; beauty shops; bill collection services; blacksmith shops; car washing; dry cleaning; dyeing; exterminators; garage and service stations; garment alteration; cleaning and pressing; janitorial services and supplies; specialty cleaners; laundry; linen and towel supply; membership or entrance fees for the use of a facility or for the right to purchase tangible personal property or services; photography; photo developing and enlarging; tire recapping; welding and all repair services; cable television; and rentals of tangible personal property except leases of tangible personal property between one telephone company and another telephone company, motor vehicles as defined by § 32-5-1 leased under a single contract for more than twenty-eight days and mobile homes provided, however, that the specific enumeration of businesses and professions made in this section does not, in any way, limit the scope and effect of § 10-45-4.
Section 3. That § 10-45-6 be amended to read as follows:
10-45-6. There is hereby imposed a tax of four and one-half percent upon the gross receipts from sales, furnishing, or service of gas, electricity, and water, including the gross receipts from such sales by any municipal corporation furnishing gas, and electricity, to the public in its proprietary capacity, except as otherwise provided in this chapter, when sold at retail in the State of South Dakota to consumers or users.
Section 4. That § 10-45-6.1 be amended to read as follows:
10-45-6.1. There is hereby imposed on amounts paid for local telephone services, toll telephone services and teletypewriter services, a tax of four and one-half percent of the amount so paid. The taxes imposed by this section shall be paid by the person paying for the services. If a bill is rendered the taxpayer for local telephone service or toll telephone service, the amount on which the tax with respect to such services shall be based shall be the sum of all charges for such services included in the bill; except that if a person who renders the bill groups individual items for purposes of rendering the bill and computing the tax, then the amount on which the tax for each such group shall be based shall be the sum of all items within that group, and the tax on the remaining items not included in any such group shall be based on the charge for each item separately. If the tax imposed by this section with respect to toll telephone service is paid by inserting coins in coin operated telephones, the tax shall be computed to the nearest multiple of five cents, except that, where the tax is midway between multiples of five cents, the next higher multiple shall apply. The tax so paid shall be remitted at the same time as the sales tax imposed by this chapter.
Section 5. That § 10-45-8 be amended to read as follows:
10-45-8. There is imposed a tax of four and one-half percent upon the gross receipts from all sales of tickets or admissions to places of amusement and athletic events, except as otherwise provided in this chapter.
Section 6. That § 10-46-2.1 be amended to read as follows:
10-46-2.1. For the privilege of using services in South Dakota, except those types of services exempted by § 10-46-17.3, there is imposed on the person using the service an excise tax equal to four and one-half percent of the value of the services at the time they are rendered. However, this tax may not be imposed on any service rendered by a related corporation as defined in subdivision 10-43-1(11) for use by a financial institution as defined in subdivision 10-43-1(4) or on any service rendered by a financial institution as defined in subdivision 10-43-1(4) for use by a related corporation as defined in subdivision 10-43-1(11). For the purposes of this section, the term related corporation includes a corporation which together with the financial institution is part of a controlled group of corporations as defined in 26 U.S.C. § 1563 as in effect on January 1, 1989, except that the eighty percent ownership requirements *373 set forth in 26 U.S.C. § 1563(a)(2)(A) for a brother-sister controlled group are reduced to fifty-one percent. For the purpose of this chapter, services rendered by an employee for the use of his employer are not taxable.
Section 7. That § 10-46-2.2 be amended to read as follows:
10-46-2.2. An excise tax is imposed upon the privilege of the use of rented tangible personal property in this state at the rate of four and one-half percent of the rental payments upon the property.
Section 8. That § 10-58-1 be amended to read as follows:
10-58-1. There is imposed upon owners and operators a special amusement excise tax of four and one-half percent of the gross receipts from the operation of any mechanical or electronic amusement device.
Section 9. That House Bill No. 1350 as previously enacted by the Seventieth Legislature be repealed on July 31, 1995.
Section 10. The effective date of this ballot measure is August 1, 1995." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596127/ | 399 So.2d 790 (1981)
GUARANTY BANK & TRUST COMPANY OF ALEXANDRIA, Louisiana, Plaintiff-Appellant,
v.
Billy W. DANIELS, Defendant-Appellee.
No. 8245.
Court of Appeal of Louisiana, Third Circuit.
May 27, 1981.
Provosty, Sadler & deLaunay, LeDoux R. Provosty, Jr., Alexandria, for plaintiff-appellant.
Voelker, Ragland, Brackin & Crigler, Charles R. Brackin, Lake Providence, for intervenor-appellee.
Gold, Little, Simon, Weems & Bruser, Donald Sharp, Alexandria, for defendant-appellee.
Before SWIFT, STOKER and DOUCET, JJ.
DOUCET, Judge.
Plaintiff, Guaranty Bank & Trust Company of Alexandria, Louisiana, brought this suit to recover money due on six promissory notes executed by defendant, Billy W. Daniels. The notes were secured by a pledge of a soybean crop produced by defendant on land that he leased from James Domengeaux, Bob F. Wright and G. L. Dozier, d/b/a Meade Plantation.
Plaintiff obtained a writ of sequestration, pursuant to which it seized approximately 18,000 bushels of soybeans that were stored in the Alexandria Mill & Grain Elevator, Inc. in the names of the landowners. The landowners intervened, claiming ownership of the soybeans free of any crop lien in favor of plaintiff. Prior to trial, the soybeans *791 were sold pursuant to a joint motion by all of the parties, and the proceeds were retained by the Sheriff of Rapides Parish and deposited in an interest bearing bank account.
Following a trial on the merits, a default judgment was rendered in favor of plaintiff and against defendant. Judgment was also rendered in favor of the intervenors, recognizing their ownership of the soybeans that were seized, dissolving the writ of sequestration, and ordering the Sheriff of Rapides Parish to surrender to them the funds derived from the sale of the soybeans together with the accumulated interest. From that judgment, plaintiff appeals.
The only issue on appeal is whether the trial court erred in finding that the soybeans were owned by the intervenors.
The parties agree that the resolution of this issue hinges on the interpretation to be given to the following provision of the lease entered into by defendant and the intervenors:
"LESSEE agrees to pay LESSOR a total rental of Twenty-five (25%) of all the crop or $150,000.00 whichever is more."
The intervenors contend that under this provision, defendant was required to deliver 25% of the crop to them, and that in the event that 25% of the crop was not valued at $150,000.00, defendant was obligated to make up the difference. They further argue that under the above provision and LSA-R.S. 9:3204[1], they were at all pertinent times the owners of the soybeans that were seized by plaintiff[2].
Plaintiff, on the other hand, contends that under the above provision of the lease, defendant was required to pay the intervenors $150,000.00 or 25% of the proceeds from the sale of the crop, whichever amount was greater. It argues that LSA-R.S. 9:3204 is inapplicable because defendant's obligation in either case was to pay a sum of money, and not to deliver a portion of the crop.
We find that the lease, when read in its entirety, clearly supports the construction urged by the intervenors. In a later paragraph, the lease provides:
"LESSOR and LESSEE specifically agree that LESSEE shall not in any way encumber, mortgage, or place a crop lien on the Twenty-five (25%) percent of the crop due LESSOR. Further, LESSOR shall be entitled to sell his Twenty-five (25%) percent at any time LESSOR desires after the crop has been delivered to the elevator, should LESSEE desire to wait (delay) on the sale in expectation of higher commodity prices. Should LESSOR elect to sell its 25% percent of the crop, then LESSOR and LESSEE (elevator) shall pay LESSOR at that time without waiting until the sale of LESSEE'S portion of the crop."
In view of the language, we find plaintiff's position untenable. We conclude, as did the trial judge, that the intervenors owned the soybeans that were seized by plaintiff.
We note that plaintiff argues alternatively that even if the intervenors owned the soybeans, it acquired a superior right to them by virtue of the fact that its crop pledge was recorded, while the lease was not. This argument overlooks the fact that the intervenors do not have to rely on the lease in order to establish their ownership of the soybeans insofar as third persons are concerned. If the lease were deemed to be ineffective, the intervenors would be considered the owners of the entire crop under the general rules of accession. LSA-C.C. Articles 483 and 485. Furthermore, plaintiff *792 could not by recording the pledge acquire any greater rights than defendant could lawfully convey to it. Defendant could not lawfully pledge the intervenor's portion of the crop without their consent. LSA-C.C. Arts. 3145 and 3146. Since defendant clearly did not have their consent, the pledge could only affect the part of the crop that defendant owned.
For these reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against plaintiff.
AFFIRMED.
NOTES
[1] LSA-R.S. 9:3204 provides:
"In a lease of land for part of the crop, that part which the lessor is to receive is considered at all times the property of the lessor.
"The lessee or any person acting with his consent who sells or disposes of the part of the crop belonging to the lessor shall be fined not more than one thousand dollars, or imprisoned for not more than one year, or both."
[2] Although it was not specifically mentioned in his written reasons, the trial judge apparently found that the beans that were seized constituted 25% of the total crop. That finding, which is supported by testimony in the record, has not been challenged on appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592594/ | 922 F.Supp. 48 (1996)
Carol J. PION, Plaintiff,
v.
LIBERTY DAIRY COMPANY, a division of Dean Foods Company, Defendant.
No. 1:93-cv-429.
United States District Court, W.D. Michigan, Southern Division.
April 3, 1996.
*49 *50 Stephen R. Drew, Drew, Cooper & Anding, Grand Rapids, MI, for plaintiff.
Charles S. Mishkind, Meg Hackett Carrier, Miller, Canfield, Paddock & Stone, Grand Rapids, MI, for defendant.
ORDER ON DEFENDANT'S BILL OF COSTS AND ON PLAINTIFF'S AMENDED MOTION TO DISALLOW DEFENDANT'S BILL OF COSTS
MILES, Senior District Judge.
This matter is before the court on defendant Liberty Dairy Company's bill of costs and on plaintiff Carol Pion's amended motion to disallow the claimed costs.[1] For the foregoing reasons, the court hereby denies plaintiff's amended motion to disallow costs, and taxes costs in favor of the defendant in the amount of $8,032.07.
ANALYSIS
Fed.R.Civ.P. 54(d) provides in pertinent part that "costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs[.]" This rule "creates a presumption in favor of awarding costs, but allows denial of costs at the discretion of the trial court." White & White, Inc. v. American Hosp. Supply Corp., 786 F.2d 728, 730 (6th Cir.1986). Under Rule 54(d), the "norm of action" is that "prevailing parties are entitled to their costs as of course." Id. at 731. Where an unsuccessful party in the litigation seeks to be excused from the burden of paying costs, it is incumbent upon her to show circumstances sufficient to overcome the presumption favoring an award of costs to the prevailing party. Id. at 732.
*51 Plaintiff argues that it would be "inequitable" to require to her to pay costs in this litigation. First, she argues, defendant's claimed costs are "outrageously large." However, although the court may deny unnecessary or unreasonable costs, it may not deny all costs simply because the total amount sought by the prevailing party exceeds what is deemed necessary or reasonable. See id. at 732 ("Although the court may deny unnecessary costs, unnecessary costs are not a reason for denying all costs").
Plaintiff further argues that the case was "difficult and close," a circumstance recognized as providing a basis for denying costs. Id. at 730. As stated in White,
The closeness of a case is judged not by whether one party clearly prevails over another, but by the refinement of perception required to recognize, sift through and organize relevant evidence, and by the difficulty of discerning the law of the case.
786 F.2d at 732-33. Applying this definition, the court finds that although the litigation involved zealous, professional advocacy on both sides, the case itself was not a close one, but rather involved a relatively straightforward claim of sex discrimination. The nature of the case simply does not warrant a denial of costs.
Plaintiff further argues that an award of costs in this case will have a chilling effect on civil rights plaintiffs. However, she has identified no particular chilling effect apart from her own conclusory assertion. "The prevailing party in a civil rights action ... is in the same position as any other prevailing party with respect to costs available pursuant to 28 U.S.C. § 1920." Goostree v. State of Tennessee, 796 F.2d 854, 864 (6th Cir.1986), cert. denied, 480 U.S. 918, 107 S.Ct. 1374, 94 L.Ed.2d 689 (1987). Notably, the Sixth Circuit has recognized that allowing imposition of costs against unsuccessful civil rights plaintiffs even indigent plaintiffs does not have any perceived chilling effect on the filing of such actions. Weaver v. Toombs, 948 F.2d 1004, 1008 (6th Cir. 1991). The court therefore rejects, as a basis for denial of costs, plaintiff's argument regarding an unidentified chilling effect on civil rights plaintiffs.[2]
Finally, plaintiff argues that requiring her to pay costs to the defendant would not be fair because her own income and assets are "limited" while the defendant allegedly has a "multi-state parent corporation ... apparently footing the bill for costs" and, according to plaintiff, has a greater ability to absorb the costs of the litigation. This argument presents an interesting issue for the court's consideration.
White & White holds that in determining whether to award or deny costs, it is error for the court to consider the prevailing party's ability to bear its own expenses without hardship. 786 F.2d at 731. White & White does not indicate whether the unsuccessful party's ability to pay costs is also, correspondingly, an inappropriate consideration, at least where indigency is not claimed. Sixth Circuit authority does indicate that the losing party's ability to pay is an appropriate consideration where that party claims indigency. Sales v. Marshall, 873 F.2d 115, 120 (6th Cir.1989). However, even indigency does not prevent the taxation of costs against a party, id., and the burden is upon the losing party to show that she is unable, as a practical matter and as a matter of equity, to pay the defendant's costs. Weaver, 948 F.2d at 1013-14.
Plaintiff has not made such a showing in this case. Although the defendant's claimed costs are substantial, a large portion of them is being disallowed for various reasons to be addressed below. Moreover, plaintiff's financial affidavit, as cursory as it is, indicates that she operates a child care business which produced receipts in 1995 of *52 $12,481.79;[3] that she receives additional support from her husband; that she and her husband jointly own their own home; that she and her husband jointly own two income-producing rental properties worth an unspecified value, which generated income in 1995 of $6,900; and that she and her husband jointly own an income-producing oil and gas lease which generated income in 1995 of $1,450. Plaintiff has not to date filed an application for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and her affidavit affords no basis for a finding of indigency even if she had sought leave to so proceed. The court finds that plaintiff is able to pay costs, and that her claimed limited income and assets do not provide a basis for denial of costs.[4]
Having found that no basis exists for denying costs to the defendant, the court must now determine the amount of costs to award. Title 28 U.S.C. § 1920 lists the items which courts may tax as costs:
A judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
Upon allowance, costs are deemed included in the judgment or decree. Id.
Defendant has claimed costs totalling $36,106.32, broken down as follows: $7,856.33 for copying; $563.65 for records subpoenas and copying; $655.44 in witness fees; $7,905.65 in court reporter fees;[5] and $19,125.25 in expert fees for four different experts. Plaintiff has objected to most of these costs, as discussed below.
Plaintiff first objects that defendant's request for expert fees totalling $19,125.25 is insupportable under 28 U.S.C. § 1920 because the statutory witness fee specified in 28 U.S.C. § 1821 is $40 per day. Plaintiff is correct. In Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 439, 107 S.Ct. 2494, 2496, 96 L.Ed.2d 385 (1987), the Court definitively held that "when a prevailing party seeks reimbursement for fees paid to its own expert witnesses, a federal court is bound by the limit of § 1821(b), absent contract or explicit statutory authority to the contrary."
*53 Plaintiff further argues that because she herself noticed the depositions of three of the defendant's experts, Robert Scott, Michael Smith, and William Kooistra, and because she "was billed or will be billed" by these experts for the time spent in depositions, defendant is not entitled to claim the $40 per day fee for those witnesses. Plaintiff, however, does not claim to have tendered fees to these witnesses. Plaintiff seemingly acknowledges her responsibility for the fees to be paid these witnesses, yet she appears to object to reimbursing the defendant for any portion of what it paid to these witnesses for their appearance. The court finds that the witness fees for Scott, Smith, and Kooistra are properly recoverable under the circumstances, and that defendant shall therefore recover $120 in costs for these witnesses. Defendant shall also recover $80 in witness fees for the two-day deposition of Dr. Don Van Ostenberg, for total expert witness fees of $200.
Defendant has also requested $563.65 in record subpoena costs, including fees paid to a private legal copying service for preparation of subpoenas, witness fees, and related records copying fees. Plaintiff has not, in her amended motion, specifically objected to these costs. However, the court finds that fees for private process servers are not taxable under § 1920. Crues v. KFC Corp., 768 F.2d 230, 234 (8th Cir.1985); cf. Alflex Corp. v. Underwriters Laboratories, Inc., 914 F.2d 175, 178 (9th Cir.1990) (holding that such costs are taxable), cert. denied, 502 U.S. 812, 112 S.Ct. 61, 116 L.Ed.2d 36 (1991). Moreover, the necessity for the claimed witness fees included within the $563.65 figure has not been adequately documented, nor have the copying costs included within that figure. Accordingly, the court denies the $563.65 amount claimed.
Defendant has also claimed $655.44 in "witness fees." Plaintiff has objected to two discrete portions of this total: (1) defendant's claim of $159.72 to obtain records of Mercy Hospital; and (2) defendant's claim of $51.72 to obtain records from Dr. Garber. Plaintiff argues that these amounts do not in fact represent witness fees. Plaintiff is correct. These claimed costs suffer from the same deficiencies as defendant's claim for record subpoena costs discussed above. Defendant's claim for $20 in "witness fees" to obtain records from Dr. Miliken to which plaintiff has not objected likewise suffers from the same deficiencies. Accordingly, the court finds that these three amounts are not recoverable. The court finds that defendant is entitled to the remainder of the claimed witness fees, and will allow lay witness fees totalling $424.
Defendant has claimed $ $7,856.33 in copying costs. Plaintiff objects to all of this amount, principally on the basis that defendant has not provided sufficient itemization for this rather large expenditure. Defendant appears to be seeking to recover all of its copying costs incurred in the case. However, the court concludes that the defendant may only recover those costs incurred for copies of documents prepared for the court's consideration or for the opposing party. Defendant's submissions, with two very limited exceptions identified below, do not identify the number, substance, or purpose of the copies made in a manner sufficient to demonstrate that the expenses were reasonable or necessary. The court is aware that the case file is large consisting of six volumes to date and that a substantial portion of the documents contained therein was generated by the defendant. However, the court will not endeavor to calculate the number of pages or documents for which costs are available; this task should have been performed by the defendant. The court will therefore disallow the bulk of the claimed copying costs as insufficiently documented.
The two documented items for which the court will allow recovery include (1) a $33 expense for copying of a video, and (2) a $407.04 expense for copying of trial exhibits. The defendant presented a video at trial, and bench books of exhibits are required by the court. The court finds these expenses to be reasonable and and necessary, and will allow a total of $440.04 for copying.
Defendant has claimed $7,905.65 in court reporter fees. As indicated in note 5 above, defendant's documentation accompanying this claimed amount substantiates only *54 $7,120.03 in expenses. The court therefore disallows $765.62 as inadequately documented. Plaintiff objects to only certain portions of the documented deposition expenses, as follows: (1) $798.10 for the depositions of plaintiff's husband Dennis Pion, Diane Cool, and Barbara Stowe, and (2) $448.30 for the depositions of Mike Ramsey, Larry Ransom, and Lane Laughlin. Plaintiff argues that these persons did not witness any discriminatory acts, were not called in the trial, or were not "key persons" in the case.
Subsections (2) and (4) of § 1920 have been interpreted as authorizing the taxation as costs of the expenses of taking, transcribing, and reproducing depositions. Sales, 873 F.2d at 120. Ordinarily, the prevailing party is entitled to recover the costs of depositions "reasonably necessary for the litigation." Id. "Necessity is determined as of the time of taking, and the fact that a deposition is not actually used at trial is not controlling." Id. Plaintiff identified her husband, Diane Cool, Barbara Stowe, and Mike Ramsey as witnesses in the proposed joint final pretrial order. Plaintiff's husband and Misses Cool and Stowe were identified as damages witnesses and, because the bifurcated trial did not proceed to the second phase, they were not called to testify. The court is familiar with the case and finds that their depositions, as well as the depositions of witnesses Larry Ransom and Lane Laughlin,[6] were reasonably necessary at the time they were taken. Accordingly, the court finds that the claimed costs for these depositions are taxable. The court further finds that the claimed costs for the remaining depositions to which plaintiff has not objected plaintiff's own deposition, and those of David Allen, Ernie Crabb, Mart Lindsey, Jeffrey Smith, Dr. Marvin DeVries, Dr. Don Van Ostenberg, and Roy Welton are taxable. The court will therefore award deposition costs of $6,968.03.
Plaintiff's objection to the claimed $152 cost for a summary judgment hearing transcript hearing has more merit. Defendant no doubt found convenience in having the transcript, but the court finds that it was not necessary at this stage of the proceedings. The court therefore disallows this claimed expense at this time. However, this ruling should not be construed as prohibiting defendant from seeking the recovery of this cost pursuant to Fed.R.App.P. 39 in the event of an appeal.
CONCLUSION
The court taxes the following costs in favor of the defendant and against the plaintiff:
Witness fees $ 624.00
Copying 440.04
Depositions 6,968.03
_________
Total $8,032.07
So ordered this 27th day of March, 1996.
NOTES
[1] Plaintiff has indicated that she intends for her amended motion to disallow costs, and accompanying brief, to supersede her earlier motion to disallow costs. Accordingly, the court has not considered the contents of the earlier motion and brief.
Although plaintiff has requested oral argument on her motion, the court has determined that oral argument would not materially aid it in the resolution of the issues which she raises in her amended motion.
[2] Plaintiff appears to argue that she was encouraged to go forward by what she deems a "favorable" arbitration award, followed by no comparable offer of settlement from the defendant. However, a favorable arbitration award obviously presents no guarantee of success at trial, and parties must still realistically assess the merits and risks of proceeding. In sum, the issuance of an arbitration award favorable to an ultimately unsuccessful litigant does not in itself support the denial of costs to the prevailing party.
[3] As of the time of her financial affidavit, plaintiff had not yet bothered to calculate her 1995 expenses for the business. The court's recollection, based on discussions of evidentiary motions filed before trial, is that plaintiff operates the business out of her home.
[4] The court feels constrained to note that even where a losing party is proceeding as an indigent under 28 U.S.C. § 1915, this court's general practice is to award costs and establish a payment plan which takes into account the losing party's ability to pay. The court generally finds such a course of action to be warranted in all but the most extreme cases of financial hardship. However, because plaintiff has neither claimed nor shown that she is indigent, the court finds that no payment plan is justified.
Defendant has suggested that if plaintiff is unable to pay costs, her counsel should be required to pay them because, defendant further suggests, plaintiff may have been "ill-advised" regarding settlement and strategy. Plaintiff has responded, characterizing these suggestions as a "personal attack" on her counsel. The court declines to become involved in this sort of squabbling. It suffices to say that defendant is entitled to costs, payable by plaintiff herself. As for plaintiff's counsel, defendant has not invoked Fed.R.Civ.P. 11's procedures.
[5] Although defendant claims to have incurred $7,905.65 in court reporter costs, no itemized listing of these costs has been provided. (Defendant's "Brief in Response to Plaintiff's Motion to Disallow Costs" states that a "list of depositions for which reimbursement is requested" is attached to that brief. Id. at p. 4. However, no such list is in fact attached to the brief.) Although the defendant has submitted supporting documentation consisting largely of court reporter invoices, those invoices total only $7,120.03, not the $7,905.65 claimed.
[6] In the proposed joint final pretrial order, defendant identified Lane Laughlin as a witness. Defendant contends, and plaintiff has not disputed, that it was plaintiff who noticed this deposition. Plaintiff also has not disputed that she noticed the deposition of Larry Ransom. In the proposed joint final pretrial order, both parties identified Mr. Ransom's deposition as one which might be used at trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592595/ | 19 So.3d 879 (2008)
Angela Webster RUSSELL
v.
David Wade RUSSELL.
2050655.
Court of Civil Appeals of Alabama.
February 1, 2008.
*880 Robert J. Russell, Jr., of Parnell & Crum, P.A., Montgomery, for appellant.
Jeffrey J. Courtney of Pinkston & Courtney, LLP, Wetumpka, for appellee.
On Application for Rehearing.
BRYAN, Judge.
The opinion of September 14, 2007, is withdrawn, and the following is substituted therefor.
Angela Webster Russell ("the mother") appeals a judgment transferring primary physical custody of the parties' 10-year-old son ("the child") from her to David Wade Russell ("the father").[1] We reverse and remand.
Facts
Because the action was tried before the trial judge without a jury and the trial judge heard evidence ore tenus, "we must view `"the evidence in the light most favorable to the prevailing part[y]."'" Diggs v. Diggs, 910 So.2d 1274, 1275 (Ala. Civ.App.2005) (quoting Architectura, Inc. v. Miller, 769 So.2d 330, 332 (Ala.Civ.App. 2000), quoting in turn Driver v. Hice, 618 So.2d 129, 131 (Ala.Civ.App.1993)). Viewed in that manner, the evidence established the following facts.
The father, who was a police officer from July 1995 until February 2002, has been working as a salesman at Ben Atkinson *881 Chevrolet in Tallassee since January 2003. The mother, who is a registered nurse, works for Baptist Medical Center East ("Baptist East") in Montgomery.
The Elmore Circuit Court divorced the parties in 1999 and awarded the mother primary physical custody of the child. The parties then lived apart from one another for several years.
In approximately 2001, the mother became addicted to Lortab and began taking a minimum of six tablets of Lortab per day. She also sometimes took Oxycontin, methadone, morphine, and Demerol.
In March 2002, the parties attempted a reconciliation; the father moved into the mother's house in Prattville, and the parties lived together until December 2002. While they were living together, the father discovered that the mother was addicted to drugs and advised her to seek treatment for her addiction. In December 2002, the father moved from the mother's house to his father's house. Despite his knowledge of the mother's drug addiction, the father did not seek a change in custody when he moved out of the mother's house.
Shortly before May 2, 2003, the mother informed her employer that she was addicted to drugs and needed treatment. On May 2, 2003, the mother began an in-patient drug-rehabilitation program at Bradford Health Services ("Bradford") in Warrior. The mother gave the father her power of attorney while she was in rehabilitation. The father moved into the mother's house in Prattville and took care of the child while the mother was a patient at Bradford.
During her stay at Bradford, the mother violated the facility's rules twice, once when she used a substance containing ephedrine and a second time when she did not come forward and tell the staff that her roommate was sneaking a male patient into their room. As discipline for using the substance containing ephedrine, the mother was not allowed to go home for one weekend. As discipline for failing to come forward and tell the staff about her roommate's violating the rules, two weeks were added to the mother's stay at Bradford. A psychologist at Bradford opined that the mother has a highly addictive personality.
The mother was discharged from Bradford in July 2003; however, she was required to continue out-patient treatment, and Bradford advised her to focus on her recovery for the next year. She agreed that, while she was fulfilling the requirements of her out-patient treatment, the child could live with the father and attend school where the father was living. The father moved with the child to Tallassee, and, when school began in the fall of 2003, the child began attending school in Tallassee.
On July 14, 2003, the mother signed an agreement with the Alabama Nursing Board pursuant to the Board's Voluntary Disciplinary Alternative Program. In the agreement, the mother agreed, among other things, not to take prescribed medication if her prescription was more than four months old. Later in July 2003, the mother returned to work as a nurse at Baptist East, although she had to be assigned to a different job because she was prohibited from access to narcotics for six months. Because the new position required her to work three 12-hour shifts each week and those shifts did not end until 7:30 at night, she agreed that the child could continue living with the father.
In October 2003, the father and the child again moved into the mother's house and lived with the mother; however, the father moved out of the mother's house in February 2004 and began living in Wetumpka. Because the mother's work schedule had not changed, she agreed that the child *882 could live with the father in Wetumpka. Despite the move to the mother's house in Prattville in October 2003 and the subsequent move to Wetumpka in February 2004, the child went to school in Tallassee the entire 2003-2004 school year. During the spring of 2004, the child visited the mother one weeknight every two weeks and every other weekend. During June and July 2004, the child spent approximately as much time visiting the mother as he did living with the father.
In mid-July 2004, Baptist East agreed to let the mother work a schedule that would allow her to be the child's primary caregiver. The mother told the father that the child could resume living primarily with her and that she wanted to enroll the child in school in Prattville. The father told the mother that he would not allow the child to resume living primarily with her, that he would not allow her to enroll the child in school in Prattville, and that he would go to court to obtain primary physical custody of the child. On July 21, 2004, the mother went to the father's apartment and insisted that the father give her the child. The father refused to give her the child, and an argument ensued. Someone called the Wetumpka police, who arrested both the father and the mother. Ultimately, the Wetumpka Municipal Court acquitted both the father and the mother of the charges against them arising from the incident on July 21.
After the police released the mother on July 21, she showed the police the written divorce judgment granting her primary physical custody of the child, and the police accompanied her back to the father's apartment to ensure that the father let her have the child. The mother took custody of the child and enrolled him in school in Prattville.
The father filed this action, seeking primary custody, on August 4, 2004. On September 1, 2004, before the mother had been served with process, the trial court, without affording the mother notice and an opportunity to be heard, issued an ex parte order granting the father pendente lite custody.[2] That same day, the father picked up the child at his school in Prattville without informing the mother and enrolled the child in school in Tallassee.
The father has not lived in Tallassee since he moved from there to the mother's house in Prattville in October 2003. He has lived in Wetumpka ever since he moved out of the mother's house in February 2004, although he works in Tallassee. The father misrepresented to the school in Tallassee that he lived in Tallassee in order to enroll the child in that school in the fall of 2004. Despite suffering from attention deficit/hyperactivity disorder, the child has done well in school in Tallassee.
On the night of December 25, 2004, while the child was visiting her, the mother took a Darvocet for a migraine headache. Although a physician had prescribed the Darvocet, the prescription was more than four months old when the mother took the Darvocet on December 25, 2004. Consequently, although the mother had a valid prescription that had not expired, her taking the Darvocet constituted a violation of the alternative-discipline agreement she had entered into with the Alabama Nursing Board on July 14, 2003. As a result, she entered into another alternative-discipline agreement with the Alabama Nursing Board on February 1, 2005. The mother is no longer prohibited from access to narcotics, and her employer has not observed any indication that she has *883 abused drugs since she returned to work in the summer of 2003.
The mother testified that the father had abused alcohol. In addition, the child's maternal grandmother testified that, on several occasions when the father had come to her house to pick up the child, she had observed signs that the father had consumed too much alcohol to be driving. The father denied ever having abused alcohol; however, the trial judge found that the father had had a substance-abuse problem for an unspecified period between the 1999 divorce and the trial of the present action.
Procedural History
After learning that the trial court had issued an ex parte order granting the father pendente lite custody on September 1, 2004, the mother moved the trial court to reconsider that order on the ground that it violated the mother's due-process rights. After the trial court reaffirmed its September 1 order on September 8, 2004, the mother petitioned this court for a writ of mandamus.[3]
On April 29, 2005, this court issued a writ of mandamus ordering the trial judge to vacate his September 1 and September 8, 2004, orders granting the father pendente lite custody and to hold an evidentiary hearing on the father's motion seeking pendente lite custody. Because it was then close to the end of the school year, the parties agreed that the child could stay with the father and attend school in Tallassee until the end of that school year. Accordingly, the trial court entered an order on May 4, 2005, ordering that the child should remain with the father and attend school in Tallassee until the end of that school year and that, thereafter, the mother would have primary physical custody of the child until the trial, which was scheduled for May 26, 2005.
At the end of the 2004-2005 school year, the mother took primary physical custody of the child. The trial began on May 26, but it was recessed and was scheduled to resume on October 6, 2005. Sometime between May 26 and July 18, 2005, the mother told the father that she intended to enroll the child in school in Prattville, where she was living. Consequently, the father, on July 18, 2005, moved the trial court for a temporary restraining order ("TRO") prohibiting the mother from removing the child from the school rolls in Tallassee and enrolling him in school in Prattville. On July 26, 2005, the trial court, without a hearing, granted the TRO; however, because the mother had already removed the child from the school rolls in Tallassee and enrolled him in school in Prattville before the trial court had issued the TRO on July 26, the trial court, again without a hearing, amended the TRO on August 2, 2005, to order the mother to remove the child from the school rolls in Prattville and to enroll him in school in Tallassee.
The day before the trial was scheduled to resume on October 6, 2005, the trial court ordered that the trial be continued until February 22, 2006. The trial resumed on February 22 and concluded on February 23.
Following the conclusion of the trial, the trial court entered a judgment transferring primary physical custody to the father. In pertinent part, the judgment stated:
"[The court] finds as follows:
"1. That the parties have maintained a relationship[,] with the parties living together and apart on several occasions *884 since their Final [Divorce] Decree on November 29, 1999.
"2. That during the period [between] the parties' Final [Divorce] Decree and the filing of this Petition, both the mother and the father have had periods when substance abuse has been involved, but one parent to a lesser extent than the other.
"3. That during the period of time when the mother sought treatment, the father, David Wade Russell, maintained the child either in his home or in the home of the mother.
"4. That since the period the parties' child has resided with the father, the child has done well in school and the mother has maintained a relationship with her child.
"....
"6. That it is to the child's best interest and the benefits to the parties' child... outweigh any detrimental effect for his primary residence to be changed from the mother, Angela Marie Russell, and placed with the father, David Wade Russell, subject to the reasonable visitation schedule as set out herein. The fact that the parties' child has resided with the father for a prolonged period is not considered in favor of or against any party.
"7. That the mother, Angela Marie Russell shall have each alternate weekend from Friday to Sunday, and every other week during the school summer vacation, with the provision that the child shall be with the father on the week immediately preceding school starting. Additionally, the mother shall have the seven days immediately preceding December 24 and including that day until 6:00 p.m. Additionally Mother shall have Mother's Day and the father shall have Father's Day."
The mother timely appealed and moved the trial court to stay the judgment pending appeal. The trial court granted the stay.
Analysis
On appeal, the mother argues that the trial court erred in transferring primary custody to the father because, she says, the father's evidence did not meet the evidentiary burden for changing custody established by Ex parte McLendon, 455 So.2d 863 (Ala.1984).
"[T]he McLendon test for a change of custody after custody is awarded in a divorce judgment is that the noncustodial parent seeking a change in custody must demonstrate (1) that he is fit to be the custodial parent; (2) that material changes that affect the child's welfare have occurred since the original award of custody; and (3) that the positive good brought about by the change in custody will more than offset the disruptive effect of uprooting the child.
"Subsequent cases have made the burden of the noncustodial parent even heavier.... Sexton v. Lambert, 611 So.2d 385 (Ala.Civ.App.1992), noted that the McLendon burden is `a very heavy burden.' 611 So.2d at 387. Klapal v. Brannon, 610 So.2d 1167 (Ala.Civ.App. 1992), also described the McLendon burden as a `heavy burden' and added that the evidence in support of a modification of custody `must be so substantial as to disclose an obvious and overwhelming necessity for a change.' 610 So.2d at 1169. See also Whitfield v. Whitfield, 570 So.2d 700, 702 (Ala.Civ.App.1990); and Braswell v. Braswell, 460 So.2d 1339, 1341 (Ala.Civ.App.1984).
"....
"... [T]his Court notes once again that the McLendon burden is `a very heavy burden.' Sexton v. Lambert, 611 So.2d at 387. We also note that the evidence *885 in support of a modification of custody must be substantial and must demonstrate an overwhelming necessity for a change, as required by Klapal v. Brannon, 610 So.2d at 1169."
Ex parte Martin, 961 So.2d 83, 87-88 (Ala. 2006) (emphasis added).
After carefully reviewing the evidence, we conclude that the evidence did not "demonstrate an overwhelming necessity for a change."[4]Martin, 961 So.2d at 88. Although the evidence demonstrated that an overwhelming necessity for a change in custody had existed at one time, i.e., when the mother was addicted to drugs and undergoing treatment for that addiction, it did not demonstrate that an overwhelming need for a change existed as of the date the trial ended because, by then, the mother had abstained from abusing drugs for approximately two and one-half years. See B.S.L. v. S.E., 875 So.2d 1215, 1224 (Ala.Civ.App.2003) (reversing a change in custody based on the mother's history of drug and alcohol abuse when the mother had voluntarily sought treatment and had abstained from abusing drugs and alcohol for almost two years as of the date of trial). The father argues that the mother's taking a Darvocet on December 25, 2004, constituted a relapse into drug abuse; however, although the Nursing Board had prohibited the mother from taking prescribed medication more than four months after the date of the prescription, her prescription for the Darvocet was nonetheless valid. Thus, her taking the Darvocet did not constitute a relapse into drug abuse despite its constituting a violation of her alternative-disciplinary agreement with the Nursing Board. Moreover, the Nursing Board did not deem the violation of her agreement to be serious enough to prevent her from working as a nurse and to prohibit her from access to narcotics.
The father also argues that the mother was guilty of domestic violence that created a presumption in favor of changing custody pursuant to § 30-3-130 et seq., Ala.Code 1975; however, we find no merit in the father's argument that the mother was guilty of domestic violence.
In concluding that the evidence met the standard for a change in custody, the trial court erroneously applied the law to the facts. A trial court's application of the law to the facts is not entitled to a presumption of correctness. See, e.g., Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala. 2005) ("`[T]he ore tenus rule does not extend to cloak with a presumption of correctness a trial judge's conclusions of law or the incorrect application of law to the facts.' [Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005)]."). Therefore, because the evidence did not establish an overwhelming necessity for a change in custody, we reverse the trial court's judgment and remand the action to the trial court for further proceedings consistent with this opinion.
OPINION OF SEPTEMBER 14, 2007, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING OVERRULED; MOTION TO STRIKE *886 APPLICATION FOR REHEARING DENIED; REVERSED AND REMANDED.
THOMPSON, P.J., and THOMAS and MOORE, JJ., concur.
PITTMAN, J., concurs in the result, without writing.
NOTES
[1] This is the second time this postdivorce custody proceeding has been before us. In Ex parte Russell, 911 So.2d 719 (Ala.Civ.App. 2005), we issued a writ of mandamus ordering the trial judge to vacate two orders awarding the father pendente lite custody because those orders violated the mother's due-process rights.
[2] See note 1. Ex parte Russell, 911 So.2d 719 (Ala.Civ.App.2005), addressed the September 1, 2004, order and a supplemental order entered on September 8, 2004.
[3] See notes 1 and 2. For more detail regarding the September 1 and September 8 orders, see Ex parte Russell, 911 So.2d 719 (Ala.Civ. App.2005).
[4] The author of this opinion has previously stated that he believes that the overwhelming-necessity-for-a-change standard was not contemplated by the Supreme Court when it decided McLendon, see Bledsoe v. Cleghorn, 993 So.2d 456, 462 (Ala.Civ.App.2007) (Bryan, J., concurring specially); however, the Supreme Court made it clear in Martin that that standard must be met, and this court is bound by the Supreme Court's decision in Martin. See § 12-3-16, Ala.Code 1975 ("The decisions of the Supreme Court shall govern the holdings and decisions of the courts of appeals ...."), and Ex parte Chatmon, 968 So.2d 999 (Ala. Civ.App.2007). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1302610/ | 201 Va. 474 (1960)
WILLIAM H. VICK
v.
COMMONWEALTH OF VIRGINIA.
Record No. 5023.
Supreme Court of Virginia.
January 18, 1960.
James N. Garrett (Allen J. Gordon, on brief), for the plaintiff in error.
Present, All the Justices.
1. On August 29, 1956, defendant was by separate orders sentenced to one year in the penitentiary on each of seven convictions of grand larceny. Each order recited that the sentence was "hereby" suspended and that defendant was placed on probation for a period of one year. Under these orders the probation period was held to have expired in each case on August 29, 1957. Thereafter the court had no power, upon defendant's conviction of petty larceny in 1958, to revoke his probation and commit him to the penitentiary.
2. The contention of the Commonwealth that under Code 1950, section 19-269, the sentences ran consecutively and accordingly defendant was placed on probation for successive one-year periods was without merit. The statute applies only to service of sentences and has no effect upon probation.
Error to judgment orders of the Circuit Court of Norfolk county. Hon. E. L. Oast, judge presiding. The opinion states the case.
D. Gardiner Tyler, Assistant Attorney General (A. S. Harrison, Jr., Attorney General, on brief), for the Commonwealth.
I'ANSON
I'ANSON, J., delivered the opinion of the court.
The question in this case is whether the trial court had jurisdiction to revoke six orders of probation and commit the defendant, *475 William H. Vick, to the State penitentiary for a period of four years.
The record before us shows as follows:
On July 3, 1956, the defendant pleaded guilty to seven separate indictments of grand larceny. The court, after hearing the evidence, found him guilty as charged in each indictment, delayed the imposition of punishment in each case, and referred the matter to the court's probation officer for investigation and a presentence report.
On August 29, 1956, separate orders were entered sentencing the defendant to one year in the State penitentiary on each of the seven convictions, two of which sentences were ordered to run concurrently. Each order concluded with the following language:
"It appearing to the Court that it is compatible with the public interest that the said one (1) year in the Penitentiary herein imposed on the said W. H. Vick be, and the same is hereby suspended and doth place the said W. H. Vick on probation during his good behavior for one (1) year upon the condition that he keep the peace and dignity and not violate any of the laws of the Commonwealth of Virginia, or any other State or the United States for a period of one (1) year and report to the Probation Officer of this Court from time to time as required by law."
On April 23, 1958, the defendant was convicted of a third offense of petit larceny, which was committed on or about February 25, 1958.
On September 26, 1958, an order was served on the defendant to show cause why his probation should not be revoked. The defendant filed a motion in writing to quash and dismiss the show cause order. By orders entered on November 26, 1958, the defendant's motion was overruled, his probation was revoked, and he was committed to one year in the penitentiary on each of the seven separate sentences of August 29, 1956, two of which were ordered to run concurrently. Thereafter, on December 9, 1958, the first order entered on November 26, 1958, was vacated by the court, since the violation of the conditions of probation occurred "more than one year after the defendant was sentenced and after the first year of the period of probation had elapsed," but all other orders entered against the defendant on November 26, 1958, remained in full force and effect.
The defendant contends before us, as he did in the court below, that the trial court did not have the power to revoke his probation on November 26, 1958, and commit him to the penitentiary because his probation period was for one year and had expired on August 29, 1957. *476
The Commonwealth contends on the other hand that by virtue of | 19-269, [1] Code of 1950, the "sentences and the attributes thereof, probation and suspension, run consecutively," and that the defendant was placed on probation for five successive one-year periods, since two of the seven sentences were ordered to run concurrently.
The authority vested in the trial court to suspend execution of sentence and place the defendant on probation is found in | 53-272, Code of 1950, 1958 Replacement Volume, and its pertinent part reads as follows:
"| 53-272. * * * After a plea, a verdict or a judgment of guilty in any court having jurisdiction to hear and determine the offense, with which the prisoner at the bar is charged, if there are circumstances in mitigation of the offense, or if it appears compatible with the public interest * * * the court may suspend the execution of sentence, in whole or in part, * * * and may also place the defendant on probation under the supervision of a probation officer, during good behavior, for such time and under such conditions of probation as the court shall determine. * * *"
Section 53-275, Code of 1950, 1958 Replacement Volume, deals with the power of the court to revoke a suspension of sentence and probation, and its pertinent part reads as follows:
"| 53-275. * * * The court may, for any cause deemed by it sufficient, revoke the suspension of sentence and any probation, if the defendant be on probation, and cause the defendant to be arrested and brought before the court at any time within the probation period * * *." (Italics supplied.)
The language used in the concluding paragraphs of all the August 29, 1956, orders clearly shows that the sentences were "hereby" suspended for one year, and at the same time the court placed the defendant "on probation during his good behavior for one (1) year [only, on all the sentences] upon the condition that he keep the peace and dignity and not violate any of the laws of the Commonwealth of Virginia * * * for a period of one (1) year and report to the Probation Officer * * * from time to time as required by law." The orders speak as of the day they were entered, and the defendant's probation ran for one year from that date. Had the court intended to make the probation period longer than one year it could have done *477 so by placing in its orders longer periods of probation, not to exceed ten years, the maximum period for which the defendant might originally have been sentenced to imprisonment. It is manifest from the orders of August 29, 1956, that the probation period expired on August 29, 1957, in each case.
There is no merit in the contention of the Commonwealth that by virtue of | 19-269 the "sentences and attributes thereof, probation and suspension, run consecutively," and that the defendant was placed on probation for five successive one-year periods.
Section 19-269 applies only to the serving of sentences to confinement in prison. An order granting probation is not a sentence to confinement. Indeed, it has exactly the opposite effect. A probation order stays, relieves, or prevents a person from confinement in prison.
The language of the orders cannot be construed to mean that after the expiration of the one-year probation period there were other probation periods fixed to run consecutively for two, three and four years thereafter.
When a court in its order prescribes the period of suspension and supervised probation it may, under | 53-275, revoke the suspension and probation only within the probation period. Dyke Commonwealth, 193 Va. 478, 483, 69 S.E.2d 483, 486.
Since the defendant's probation period of one year expired on August 29, 1957, he was not on probation when he was served with the order of September 26, 1958, to show cause why his probation should not be revoked for violating its terms and conditions. The violation of the terms and conditions of probation occurred, and the show cause order was served, many months after his probation had expired. The trial court did not have the power to invoke its jurisdiction to revoke the orders of August 29, 1956, and the motion to quash and dismiss the show cause order should have been sustained.
For the reasons given, the judgment orders of the trial court, revoking the defendant's probation and committing him to the penitentiary, are reversed and the case remanded.
Reversed and remanded.
NOTES
[1] "| 19-269. * * * When any person is convicted of two or more offenses, and sentenced to confinement, such sentences shall not run concurrently, unless expressly ordered by the court." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590726/ | 972 So.2d 1225 (2007)
STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES, OFFICE OF FAMILY SUPPORT In the Interest of T.M.A., Minor Child of Angela Allums, Plaintiff-Appellant
v.
Roger PICKINS, Defendant-Appellee.
No. 42,721-CA.
Court of Appeal of Louisiana, Second Circuit.
December 5, 2007.
Melissa A. Capella, for Appellant.
Roger Pickins, In Proper Person.
Before WILLIAMS, GASKINS and CARAWAY, JJ.
GASKINS, J.
The Louisiana Department of Social Services (DSS) filed a rule to show cause why the defendant, Roger Pickins, should not be held in contempt for failure to pay child support for his minor child, Q.Q.A. The trial court held that the default judgment finding the defendant to be the father of Q.Q.A. and ordering him to pay child support, was null. Accordingly, the trial court denied the motion by the DSS to hold the defendant in contempt for failure to pay child support. The DSS appealed. For the following reasons, we affirm the trial court judgment and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
In February 1997, the DSS filed a petition against the defendant for determination *1226 of paternity and to establish child support. The petition claimed that Angela Allums had a relationship with the defendant and it was suspected that the defendant was the father of T.M.A., born September 22, 1994. In October 1999, an amending and supplemental petition was filed urging that the defendant was also the father of Angela Allums' other child, Q.Q.A., born January 16, 1998. On December 23, 1999, a default judgment was entered against the defendant.[1] In March 2000, a joint motion and order was entered for paternity testing of the mother, the children, and the defendant. The results of the paternity test showed that the defendant was not the father of T.M.A., but that there was a 99.97 percent probability that he was the father of Q.Q.A.
On November 28, 2000, the DSS filed a motion and order of dismissal setting forth that it was appearing on behalf of the minor children T.M.A. and Q.Q.A. The DSS pled as follows:
That Plaintiff no longer desires to pursue this matter and that mover desires to dismiss this cause without prejudice because the defendant, ROGER PIC KINS, has been excluded through paternity blood testing as the natural father of the minor child, [T.M.A.]
WHEREFORE, PETITIONER MOVES that the above-entitled cause be dismissed without prejudice. [Emphasis original.]
On December 6, 2000, the district court hearing officer signed an order of dismissal ordering that the "above-entitled cause be and is hereby dismissed without prejudice." The defendant was mailed notice of the dismissal.
The DSS then realized that it erred in dismissing the entire matter. Rather, it should have dismissed the case only as to T.M.A. On December 18, 2000, the DSS filed an amended motion and order for dismissal stating:
That on November 28, 2000 the State filed a motion and order for dismissal based on the results of DNA testing. The order was signed on December 6, 2000 dismissing the action. However, the dismissal pertained only to the minor child, [T.M.A.] The defendant was not excluded as the father of the minor child, [Q.Q.A.]
That the dismissal be amended to the extent that it applies only to the minor child, [T.M.A.]
The hearing officer signed the amended motion and order for dismissal, specifying that the action for paternity and support for the minor child, Q.Q.A., remained open. The amended motion and order for dismissal was not served on the defendant.
The DSS proceeded to confirm a default judgment against the defendant. The DSS established the defendant's obligation to support Q.Q.A. The hearing officer found that the defendant was the father of Q.Q.A. and recommended to the trial court that he pay $244.63 per month in child support effective February 2001. On February 8, 2001, the trial court signed a judgment adopting the findings of fact and recommendations of the hearing officer.
In October 2006, the DSS filed a rule to show cause why the defendant should not be held in contempt of court for failure to pay child support and to set the amount of the arrearage. The DSS contended that the defendant was in arrears for child support and administrative costs in the amount of $18,405.17.
*1227 The defendant was represented by counsel at the rule to show cause hearing. He argued that the DSS never had a valid judgment for support. According to the defendant, the error in the original order of dismissal could not be corrected with an amended order for dismissal. Therefore, the defendant contends that the entire matter was dismissed and there was no valid order of support against the defendant for Q.Q.A.
The trial court ruled in favor of the defendant. The court reasoned that the order dismissing the entire suit was a substantive ruling which could not be corrected by the amending dismissal and recognized that the defendant was not served with the amended order of dismissal.[2] The court noted that the DSS was required to refile the suit on behalf of Q.Q.A. in order to collect (child support for her. Therefore, the trial court found that the confirmation of default judgment ordering the defendant to pay child support was not a valid judgment and could not serve as the basis for a contempt judgment. The trial court dismissed the rule for contempt, without prejudice.
The DSS filed a motion for new trial claiming that the trial court's decision was contrary to the law and evidence. The trial court denied the motion and the DSS appealed.
VALIDITY OF DISMISSALS
On appeal, the DSS argues that the original dismissal and the amended dismissal were without effect because they were signed only by the hearing officer and not by the trial court judge. The DSS cites La. R.S. 46:236.5 which states that the hearing officer shall act as the finder of fact and shall make written recommendations to the court. The DSS contends that hearing officers do not have authority to sign or issue judgments or make final determinations in proceedings. They can only make recommendations to the district court judge, who then has the authority to sign an order or judgment. The DSS notes that the hearing officer never made a recommendation to the court for dismissal and no valid order of dismissal was ever entered in this case by the trial court. Therefore, the DSS urges that the dismissals were not valid. Because the dismissals were without effect, the DSS urges that the original petition against the defendant for paternity and child support remained viable and served as the valid basis for the confirmation of default and for the rule for contempt.
La. R.S. 46:236.5 governs the authority of hearing officers to act in paternity and support matters. The statute specifies that the hearing officer shall make written recommendations to the trial court setting forth the pleadings, findings of fact, findings of law, and a proposed judgment. If the parties object to the written recommendation, the objections will be heard by the judge of the district court to whom the case is assigned. If no written objection is filed within the applicable time limit, the order becomes the final judgment of the court, is signed by the judge, and becomes an appealable final judgment.
This statute is implemented in the First Judicial District Court through the local court rules. Neither the statute nor the local rules give the hearing officer the authority to sign any judgment including a dismissal. The hearing officer is given *1228 authority simply to hear a matter, make findings of fact, and then submit written recommendations to the trial court. Actual judgments are to be signed by the trial court. Therefore, the hearing officer in this matter did not have the authority to dismiss the original action or to sign the amended dismissal which sought to resurrect the pleading by the DSS to establish the defendant's paternity of Q.Q.A. and to set child support.
However, as will be discussed below, we find that the deficiencies in service of process render void the preliminary default and confirmation of default. Accordingly, for reasons other than those found by the trial court, the initial judgment obtained through a flawed procedure for confirmation of default is set aside.
SERVICE OF PROCESS
At the contempt hearing, the defendant was present and was represented by court-appointed counsel.[3] In arguing that the default judgment was null, defense counsel pointed out that the defendant was not served with notice of the amended motion and order of dismissal which purported to resurrect the proceedings against the defendant for paternity of and child support for Q.Q.A. Our examination of the record reveals numerous flaws in service of process which render the confirmation of default null.
La. C.C.P. art. 1201 provides, in pertinent part:
A. Citation and service thereof are essential in all civil actions except summary and executory proceedings, divorce actions under Civil Code Article 102, and proceedings under the Children's Code. Without them all proceedings are absolutely null.
La. C.C.P. art. 1312 specifies that, except in limited, specified instances, every pleading subsequent to the original petition shall be served on the adverse party by mail, delivery, or facsimile.
La. C.C.P. art. 1701 provides, in relevant part:
A. If a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him. The judgment may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes.
La. C.C.P. art. 1702 specifies, in pertinent part:
A. A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default. When a judgment of default has been entered against a party that is in default after having made an appearance of record in the case, notice of the date of the entry of the judgment of default must be sent by certified mail by the party obtaining the judgment of default to counsel of record for the party in default, or if there is no counsel of record, to the party in default, at least seven days, exclusive of holidays, before confirmation of the judgment of default.
La. C.C.P. art. 2002 provides, in relevant part:
*1229 A. A final judgment shall be annulled if it is rendered:
. . . .
(2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.
. . . .
B. Except as otherwise provided in Article 2003, an action to annul a judgment on the grounds listed in this Article may be brought at any time.
In the present case, at the contempt hearing, the trial court stated that the defendant was personally served with the original petition and amended petition on November 17, 1999. However, in the record, there is no showing that the defendant received citation and service of these documents. A default judgment was entered against the defendant on December 23, 1999. Without service of process, the default was invalid.
Thereafter, the defendant joined in a motion and order for blood testing. If this was an appearance of record, the defendant would be entitled to notice before confirmation of default under La. C.C.P. art. 1702. On March 29, 2000, he was served with the results of the blood tests showing that he was the father of Q.Q.A., but not T.M.A. On December 6, 2000, the hearing officer signed the purported dismissal of the entire matter and the defendant was served with the notice of the dismissal. The defendant was not served with the amended motion and order of dismissal or the setting of the hearing for confirmation of default in 2001. At the time of the hearing in which the hearing officer determined that the defendant was the father of Q.Q.A., and recommended that he pay child support, the defendant had no notice that any proceedings in this matter were still ongoing.
An attempted default judgment can be reversed as a nullity on direct appeal where the ground for the nullity is apparent on the face of the record. See Rando v. Rando, 31,366 (La.App2d Cir.12/9/98), 722 So.2d 1165. Where there is no proof of service of citation, the default judgment is an absolute nullity under La. C.C.P. art. 2002(A)(2). Summit Construction, Inc. v. Robinson Contracting and Equipment Rental, Inc., 40,029 (La.App.2d Cir.8/17/05), 909 So.2d 684; Mitchell v. Bass, 2001-2217 (La.App. 1st Cir.11/8/02), 835 So.2d 778. Even if the original pleading in this case had been served on the defendant, under the facts presented here, where the defendant was served with what purported to be a complete dismissal of the proceedings and then was not served with any notice of the filing of the purported amended motion and order for dismissal, the confirmation of default was irrevocably tainted. This is similar to the situation in Meshell v. Russell, 589 So.2d 86 (La.App. 2d Cir.1991), in which a motion to transfer a proceeding to another parish was not served on the defendant. This court found that, due to that failure, the subsequent default judgment was tainted and required reversal.
Based upon the numerous procedural flaws in this case, we affirm the finding of the trial court that the default judgment of February 8, 2001, was null and could not serve as the basis for the rule for contempt brought by the DSS.[4] We disagree, however, with the trial court's reasons, and find *1230 that the original and amended petitions remain viable and subject to further proceedings in the trial court.
CONCLUSION
For the reasons stated above, we affirm the decision of the trial court, dismissing the contempt proceeding filed by the DSS against the defendant, Roger Pickins.
AFFIRMED; REMANDED FOR FURTHER PROCEEDINGS.
NOTES
[1] As will be discussed below, the default was confirmed at a later date.
[2] We make no finding as to whether this amended motion could have been considered as a motion for new trial since it was filed outside the time limit for such a motion.
[3] The defendant is unrepresented on appeal and has not filed a brief.
[4] In the alternative, the DSS argues that it clearly intended to dismiss only those claims regarding the defendant's obligation to support T.M.A. The DSS urges that the pleading should be read and construed to dismiss the action only as to T.M.A. The DSS argues that this court is required to look through the caption, style, and form of the motion for dismissal and to do substantial justice. Because we find that the entire proceeding was fatally flawed, we do not reach this argument. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590683/ | 686 N.W.2d 476 (2004)
Marlys HANSEN and Tom Hansen, Appellants,
v.
CENTRAL IOWA HOSPITAL CORPORATION, d/b/a Iowa Methodist Medical Center, Appellee.
No. 03-0626.
Supreme Court of Iowa.
September 1, 2004.
Rehearing Denied September 21, 2004.
*477 Jerry Crawford and Jim Quilty, Des Moines, for appellants.
Thomas A. Finley, Connie Diekema, and Tamara K. Hackmann of Finley, Alt, Smith, Scharnberg, Craig, Hilmes & Gaffney, P.C., Des Moines, for appellee.
LAVORATO, Chief Justice.
In this medical negligence case, Marlys Hansen sued Central Iowa Hospital Corporation, d/b/a Iowa Methodist Medical Center (IMMC), for injuries and damages she allegedly received in a fall while a patient at the hospital. Her husband, Tom Hansen, joined in the suit, claiming loss of consortium. The district court disallowed testimony from Marlys's treating physician because the Hansens did not designate him as an expert pursuant to Iowa Code section 668.11 (2003). A jury found IMMC negligent but denied any damages because it also found that such negligence was not a proximate cause of the fall and the Hansens' damages. The district court thereafter denied the Hansens' motion for new trial. The Hansens appealed, contending the district court abused its discretion in excluding the physician's testimony and in denying their motion for new trial.
We transferred the case to the court of appeals, and that court affirmed. We granted the Hansens' application for further review and now vacate the court of appeals decision and reverse the district court judgment. We remand the case for a new trial.
I. Background Facts and Proceedings.
On June 1, 1999, Marlys was hospitalized at IMMC because of back pain, a condition of long duration. Because Marlys was unstable on her feet and had a history of falls due to her back condition, IMMC placed her on "fall precautions." "Fall precautions" meant that while Marlys was in the hospital, she should not get up without assistance, her bed side rails should be up, and her call light should be within reach. However, during the night *478 of June 5, hospital staff placed a commode next to Marlys's bed and told her to use it for her restroom needs throughout the night.
During the night, Marlys tried to go from her bed to the commode. While attempting to get to the commode, Marlys fell because the bed rolled. The wheels on the bed were not locked. When she tried to get up, she fell a second time.
On June 9 Marlys was discharged from the hospital. Once at home, she felt pain that was different from any pain she had previously experienced. The pain did not subside. She reported increased pain to her physical therapist. Her pain became so intolerable that she quit her job.
After the 1999 hospitalization, Marlys fell on other occasions. Some of those falls required her to seek medical treatment.
Dr. Kenneth Pollack, an anesthesiologist specializing in chronic pain problems, surgically implanted a morphine pump into Marlys's back. Even with the morphine pump, Marlys has continued to have pain.
On June 1, 2001, Marlys sued IMMC and Dr. Daniel McGuire, alleging medical negligence resulting in the falls from which Marlys sustained injuries. Marlys's husband, Tom, joined in the suit for loss of consortium. A scheduling order dated October 8 established December 24 as the deadline for plaintiffs to designate expert witnesses.
On December 21 the Hansens filed a designation of experts, naming Jane Fleming, R.N. as an expert who would "be called to testify regarding standard of care, breach and causation." They reserved the right to call additional witnesses. The Hansens also identified an accountant who would be called to testify regarding economic damages.
On December 26 the Hansens moved to extend the time to designate medical experts. On January 31, 2002, the Hansens dismissed Dr. McGuire from the suit without prejudice. On February 1 the Hansens withdrew their motion to extend the time to designate medical experts, citing the dismissal of Dr. McGuire from the case.
On April 19 IMMC filed its designation of expert witnesses. IMMC designated all of Marlys's treating health care providers as potential witnesses concerning causation and their diagnosis and treatment of her.
On November 26 the Hansens moved for leave to substitute Sandra R. Willems-Stewart, R.N., in lieu of Jane Fleming, R.N. The district court granted the motion.
On January 14, 2003, the Hansens filed what they termed a compliance with Iowa Rule of Civil Procedure 1.508 (discovery of experts). In this document they stated:
COMES NOW the Plaintiffs, Marlys Hansen and Tom Hansen, and for compliance with Iowa Rule of Civil Procedure 1.508 state[] to the Court as follows:
1. Dr. Kenneth Pollack has treated Plaintiff Marlys Hansen with regard to chronic pain management. Based on a review of the records, and his November 25, 2002 deposition, it is anticipated that Dr. Pollack may be called to testify regarding the plaintiff's medical condition, as well as causation and damage issues.
2. Based on a review of the records and her January 13, 2003 deposition, Sandra Willems-Stewart, R.N. may be called to testify regarding standards of nursing care.
On January 21 IMMC moved in limine to prevent the Hansens from using physicians as expert witnesses who were not properly designated as such. IMMC asserted *479 that the Hansens were attempting to use a treating doctor to give opinions on causation. On the same day, IMMC moved to strike Dr. Pollack as an expert witness on the grounds that Dr. Pollack was not designated as an expert witness who would provide causation testimony as required by Iowa Code section 668.11. In support of its motion to strike, IMMC cited Cox v. Jones, 470 N.W.2d 23 (Iowa 1991).
On February 3 the Hansens filed a resistance to IMMC's motion in limine and reply in opposition to its motion to strike. They argued they were not required to designate Dr. Pollack as an expert pursuant to section 668.11 because he was a treating physician. They cited Carson v. Webb, 486 N.W.2d 278 (Iowa 1992), in support of their position.
On February 10, just before the jury trial was to start, the district court sustained IMMC's motion to strike Dr. Pollack's testimony on causation. It did so because the Hansens had failed to designate Dr. Pollack as an expert pursuant to section 668.11. Before the court's ruling, the Hansens argued that this court in Carson v. Webb had indicated that when a treating physician has formed an opinion in the course of the physician's treatment, the physician need not be designated as an expert as required by Iowa Code section 668.11. During the trial, the Hansens made an offer of proof of Dr. Pollack's testimony on causation, which the district court denied because the Hansens had failed to designate him as an expert pursuant to section 668.11.
Sandra Willems-Stewart, R.N., the Hansens' expert, testified that IMMC breached nursing standards of care. She testified that "[m]aking sure that the wheels on a bed are in the locked position would be one of an expected standard of care for a patient who is at risk for falls."
On February 14 the jury returned a verdict, finding IMMC negligent. However, the jury also found that IMMC's negligence was not a proximate cause of any damage to the Hansens.
The district court denied the Hansens' motion for new trial in which they contended that, among other things, the district court erred in excluding Dr. Pollack's testimony on causation. In denying the motion, the court reaffirmed its earlier decision to exclude Dr. Pollack's testimony, because the Hansens had failed to designate him as an expert pursuant to section 668.11. The court also noted that Dr. Pollack's testimony was insufficient on causation because he did not state his opinion in terms of "a medical degree of certainty."
The Hansens appealed; we transferred the case to the court of appeals, which affirmed.
II. Issues.
On further review, we consider two issues. First, did the district court abuse its discretion when it excluded the testimony of a treating physician on the question of causation? Second, if so, did such denial deprive the Hansens of a fair trial thereby entitling them to a new trial?
III. Scope of Review.
To the extent that we are required to interpret Iowa Code section 668.11, our review is for correction of errors at law. In re Det. of Cubbage, 671 N.W.2d 442, 444 (Iowa 2003) (review of a district court's construction and interpretation of a statute is for correction of errors at law). On the question of whether the district court properly exercised its discretion in excluding Dr. Pollack's testimony, our review is for abuse of discretion. Bell v. Cmty. Ambulance Serv. Agency, 579 N.W.2d 330, 338 *480 (Iowa 1998) (review of exclusion of expert testimony is for abuse of discretion).
Our review of rulings on motions for new trial depends on the grounds for new trial asserted in the motion and ruled upon by the district court. Ladeburg v. Ray, 508 N.W.2d 694, 696 (Iowa 1993). If the motion and the ruling are based on a discretionary ground, we review the ruling for abuse of discretion. Id. If the motion and ruling are based on a legal issue, our review is for correction of errors at law. Id. at 696-97. Here, the motion and ruling were based on a discretionary ground. See Iowa R. Civ. P. 1.1004(1). Our review is therefore for abuse of discretion.
IV. Exclusion of the Expert Testimony.
As mentioned, the district court excluded Dr. Pollack's testimony on causation because the Hansens failed to designate him as an expert witness in accordance with Iowa Code section 668.11. In its ruling on the Hansens' motion for new trial, the court in addition found the doctor's opinion on causation to be "insufficient to be admissible" because the opinion was not "expressed to a medical degree of certainty."
A. Iowa Code section 668.11. This provision provides:
1. A party in a professional liability case brought against a licensed professional pursuant to this chapter who intends to call an expert witness of their own selection, shall certify to the court and all other parties the expert's name, qualifications and the purpose for calling the expert within the following time period:
a. The plaintiff within one hundred eighty days of the defendant's answer unless the court for good cause not ex parte extends the time of disclosure.
b. The defendant within ninety days of plaintiff's certification.
2. If a party fails to disclose an expert pursuant to subsection 1 or does not make the expert available for discovery, the expert shall be prohibited from testifying in the action unless leave for the expert's testimony is given by the court for good cause shown.
3. This section does not apply to court appointed experts or to rebuttal experts called with the approval of the court.
Iowa Code § 668.11.
It is uncontroverted that the Hansens did not designate Dr. Pollack as their expert on causation within one hundred eighty days of IMMC's answer and offered no good cause to extend the time. The Hansens contend they were not required to do this because Dr. Pollack formulated all of his opinions about causation during his treatment of Marlys and not in anticipation of litigation. As such, the Hansens argue, Dr. Pollack's testimony on causation clearly falls within this court's interpretation of section 668.11 as stated in Carson v. Webb, 486 N.W.2d 278 (Iowa 1992).
Not surprising, IMMC contends otherwise. To support its position, IMMC relies heavily on this court's decision in Cox v. Jones, 470 N.W.2d 23 (Iowa 1991). In Cox, a medical malpractice case, the district court excluded the testimony of a treating physician on the standard of care because of the plaintiffs' failure to designate the physician as an expert within the time frame of section 668.11. 470 N.W.2d at 25. In affirming the decision, we held that a treating physician must be designated as an expert pursuant to section 668.11 if the physician is to give opinions on reasonable standards of care and causation. Id.
A year later in Carson v. Webb, we dispelled any notion that a treating physician's *481 opinions on causation would automatically mean that the treating physician would have to be designated under section 668.11. 486 N.W.2d at 280-81. In that case, the district court excluded opinion evidence from treating physicians that could not be the subject of lay testimony because the plaintiff had failed to designate those physicians as expert witnesses as provided in Iowa Rule of Civil Procedure 125(c) (now 1.508) (requiring disclosure of expert witness no less than thirty days before trial; noncompliance with this provision permits district court in its discretion to exclude or limit the testimony of such witness). Id. at 280.
The plaintiffs contended, and we agreed, that the district court's ruling was overly restrictive. Id. In reaching this conclusion, we relied on Day v. McIlrath, 469 N.W.2d 676 (Iowa 1991) (per curiam).
In Day, a personal injury action filed on behalf of a minor, the defendant propounded an interrogatory to the plaintiffs, asking them to identify all expert witnesses to be called at trial and to state each expert's subject matter of testimony, qualifications, opinions, and mental impressions. 469 N.W.2d at 677. The plaintiffs objected to this interrogatory insofar as it applied to the minor plaintiff's treating physicians. Id. In support of their objection, the plaintiffs asserted that the testimony of a treating physician is not discoverable under rule 125 because the treating physician's mental impressions and opinions were not "`acquired or developed in anticipation of litigation or for trial.'" Id. The district court disagreed and directed the plaintiffs to answer the interrogatories with regard to treating physicians, as well as other experts. Id. We granted the plaintiffs' application for interlocutory appeal challenging the district court order. Id. We reversed, first noting that rule 125 provides as follows:
"[D]iscovery of facts known, mental impressions, and opinions held by an expert whom the other party expects to call as a witness at trial, otherwise discoverable under the provisions of R.C.P. 122"a" and acquired or developed in anticipation of litigation for trial may be obtained [in a specified manner].
....
Nothing in this rule shall be construed to preclude a witness from testifying as to (1) knowledge of the facts obtained by the witness prior to being retained as an expert or (2) mental impressions or opinions formed by the witness which are based on such knowledge."
Id. (quoting Iowa R. Civ. P. 125) (alterations in original).
We then interpreted this language as follows:
The question raised here is whether the factual knowledge, mental impressions and opinions of a treating physician were "acquired or developed in anticipation of litigation or for trial," thereby requiring rule 125 disclosure with regard to a treating physician. We answer this question in the negative. A treating physician ordinarily learns facts in a case, and forms mental impressions or opinions, substantially before he or she is retained as an expert witness, and often before the parties themselves anticipate litigation. We believe a treating physician ordinarily focuses, while treating a patient, on purely medical questions rather than on the sorts of partially legal questions (such as causation or percentage of disability) which may become paramount in the context of a lawsuit.
Id. Relying on this language from Day, we said in Carson,
Applying our observation in Day to the present facts, we believe that the *482 district court erred in concluding that plaintiff's failure to disclose her treating physicians in interrogatory answers required exclusion of all opinion evidence that could not be the subject of lay testimony. Rather, the paramount criterion is whether this evidence, irrespective of whether technically expert opinion testimony, relates to facts and opinions arrived at by a physician in treating a patient or whether it represents expert opinion testimony formulated for purposes of issues in pending or anticipated litigation.
486 N.W.2d at 280-81.
We then took the opportunity in Carson to point out that our view of rule 125 as explained in the above quote was not inconsistent with our interpretation of section 668.11 in Cox. Id. at 281. In support of this observation, we noted that the expert opinion testimony excluded in Cox concerned reasonable standards of medical care and causation. Id. Reasonable standards of medical care under the facts in Cox were not, we stressed, a matter for which the physician was required to formulate an opinion in treating a patient. Id. But more important, we also stressed that the element of causation was not even involved in Cox. Id. So what we said in Cox on causation was dictum.
Finally, in Carson, we had this to say about our discussion of "causation" in Cox and in Day:
We do not believe, however, that the language concerning expert opinion of "causation" in Cox (with respect to section 668.11) or in Day (with respect to rule 125) was meant in either case to establish that all expert opinions of treating physicians as to causation are matters for which disclosure is required under the statute or rule. Some conclusions concerning causation relate directly to the treatment of a patient and are thus outside the scope of section 668.11 or rule 125.
Id. n. 3. Lest there be any question that this language is merely dictum as to cases arising under section 668.11, we adopt this reasoning for section 668.11 cases and more specifically this case.
Carson makes clear that disclosure under section 668.11 may be required when a treating physician gives an opinion about reasonable standards of medical care. This is because the physician ordinarily is not required to formulate such an opinion in order to treat the patient. To that extent, Cox is correct in stating that an opposing party should therefore be able to expect that a treating physician's testimony will not include opinions on reasonable standards of care. Cox, 470 N.W.2d at 25. That was the rationale in Cox for holding that physicians who give such opinions should be within the ambit of section 668.11. Id.
However, as Carson points out, that is not the case with respect to causation because some conclusions concerning causation relate directly to the treatment of a patient and for that reason are outside the scope of section 668.11. 486 N.W.2d at 281 n. 3. Therefore,
the paramount criterion is whether this evidence, irrespective of whether technically expert opinion testimony, relates to facts and opinions arrived at by a physician in treating a patient or whether it represents expert opinion testimony formulated for purposes of issues in pending or anticipated litigation.
Id. at 281. This "paramount criterion" was more fully explored in the context of rule 125 in Morris-Rosdail v. Schechinger, 576 N.W.2d 609 (Iowa Ct.App.1998).
In Morris-Rosdail, a personal injury action, the district court granted a defense motion to exclude testimony from two *483 treating doctors regarding the plaintiff's need for future surgery and permanent impairment. 576 N.W.2d at 610. The district court granted the motion because the plaintiff had failed to disclose the doctors' opinions in response to the defendant's interrogatory. Id. at 611. The court of appeals first noted that rule 125 distinguishes between facts and opinions of experts derived prior to being retained as experts and those acquired or developed in anticipation of litigation or for trial. Id. at 611-12. The court also noted that the rule does not preclude an expert from testifying to facts and opinions derived prior to being retained as an expert and for this reason treating physicians are generally not subject to rule 125. Id. at 612. The court then recognized, citing Carson, that "the threshold question [is] whether the facts and opinions were formulated by a physician in treating a patient or whether they were formulated by a physician for purposes of the issues in pending or anticipated litigation." Id. The court aptly noted that
[a]lthough the disclosure requirements of rule 125 are generally limited to physicians retained for purposes of litigation and exclude treating physicians, the application of the rule does not necessarily depend on the label or role of the physician. Instead, it hinges on the reason and time frame in which the underlying facts and opinions were acquired by the physician. Thus, even treating physicians may come within the parameters of rule 125 when they begin to assume a role in the litigation analogous to that of a retained expert. This generally occurs when a treating physician begins to focus less on the medical questions associated in treating the patient and more on the legal questions which surface in the context of a lawsuit.
Id. (citation omitted).
The court of appeals reversed the district court decision excluding the physicians' testimony because the record showed both experts were treating physicians and there was no evidence that their opinion testimony was subsequently acquired or developed in anticipation of trial. Id. In short, "[t]here was a lack of substantial evidence to support a finding the excluded opinions were within the scope of rule 125." Id.
According to Dr. Pollack's deposition testimony, he first treated Marlys in 1995 for lower extremity pain after back surgery by another physician. Eventually, he ordered a surgical procedure in which a vascular surgeon removed the sympathetic nerve chain in the low back. This procedure was partially successful in relieving her pain. Thereafter in November 1998, he performed a procedure to destroy nerve fibers carrying pain messages from the joints in the low back. Later, he implanted a device in her back to interfere with the pain messages.
Dr. Pollack recalled that Marlys told him about her June 1999 fall at IMMC and that she thereafter had significant increases in pain and discomfort which limited her ability to function. Her pain level was severe enough that she would consider just about anything that might help. To address this pain, Dr. Pollack tried several procedures to alleviate it, including increasing her dosages of pain medications. The medications were not sufficient to address her pain, so in September 1999 Dr. Pollack installed a pump in her back to deliver morphine to treat the pain.
All of the foregoing deposition testimony is in the record. The following portion of Dr. Pollack's deposition testimony was the subject of an offer of proof by the Hansens, which the district court refused to admit into evidence:
*484 Q. Based on the history of a fall in June of 1999 as Marlys Hansen reported it to you and as she reported to you the significant increase in pain and discomfort thereafter, do you form any conclusions as one of her treaters as to whether that increase in pain and discomfort was causally correlated with the fall she reported to you?
....
A. The time sequence suggests that there was some correlation between the events that occurred and her subsequent increased pain.
Q. Why is the timing significant?
....
A. When people have had previous lumbar spine surgery, they often have a lot of scar tissue which can cause nerve irritation or nerve entrapment. I frequently see people who have been doing very well for some number of months or years after they have had back surgery and then a specific event occurs like a fall or an automobile accident which rapidly causes onset of increased leg pain or new leg pain.
So the timing becomes very important if you're trying to establish a cause and effect relationship. Had the pain increased three months or six months or a year after a fall, it would be very hard for me to draw a conclusion that there is potentially a cause and effect relationship.
But if it were a matter of hours or days or even a week or two, it becomes much more likely that there was a cause and effect relationship.
Q. And based on the history then as Marlys reported it to you of a fall and pain of a significantly increased level shortly thereafter, does that make it more likely than not that there's some causal connection between the fall and the increase in pain?
A. I think again that the history suggests a probability that there is some causal relationship between the incident she described and the pain increase, and I partially base that on the fact that there's documentation of a significant increase of pain within a fairly short time after that fall.
Now, I would like it to be clear that she did not talk to me about her increased symptoms as it relates to the fall at that time. It was not until much later.
From the foregoing deposition testimony, it is clear that Dr. Pollack was Marlys's treating physician long before the fall at IMMC and after the fall. It is also clear from the offer of proof that he formed his causation opinion as a treater. Moreover, there is no record evidence that Dr. Pollack's causation opinion was formulated as a retained expert for purposes of issues in pending or anticipated litigation.
Dr. Pollack treated Marlys for the increased pain following the fall in question with various procedures and increased medication. Therefore, his causation opinion directly related to his treatment. Because Dr. Pollack was treating Marlys for this increased pain, it is only reasonable that the jury should hear what the doctor thought was the cause of that increased pain.
For all these reasons, we agree with Marlys that Dr. Pollack's causation opinion was not within the ambit of section 668.11. The district court therefore abused its discretion in not admitting the offer of proof on that ground.
That brings us to the related issue.
B. Medical testimony insufficient on causation. As mentioned, the district court in its ruling on the motion for new trial gave an additional reason for excluding *485 Dr. Pollack's opinion testimony on causation: the testimony was "insufficient to be admissible" because the opinion was not "expressed to a medical degree of certainty." We disagree.
The rule is that expert testimony indicating probability or likelihood of a causal connection is sufficient to generate a question on causation. Winter v. Honeggers' & Co., 215 N.W.2d 316, 323 (Iowa 1974). Buzzwords like "reasonable degree of medical certainty" are therefore not necessary to generate a jury question on causation. In the offer of proof on causation, Dr. Pollack's deposition testimony was as follows:
[T]he history suggests a probability that there is some causal relationship between the incident she described and the pain increase, and I partially base that on the fact that there's documentation of a significant increase of pain within a fairly short time after the fall.
This was sufficient to generate a jury question on causation.
V. New Trial.
The Hansens' motion for new trial was based in part on the exclusion of Dr. Pollack's deposition testimony on causation. The relevant rule provision states:
On motion, the aggrieved party may have an adverse verdict, decision, or report or some portion thereof vacated and a new trial granted if any of the following causes materially affected movant's substantial rights:
1.1004(1) ... any order of the court... or abuse of discretion which prevented the movant from having a fair trial.
Iowa R. Civ. P. 1.1004(1).
Clearly, the exclusion of Dr. Pollack's testimony on causation materially affected the Hansens' rights in light of the fact that his was the only medical testimony on this issue and the jury found IMMC negligent but its negligence was not a proximate cause of the Hansens' damages. The district court's exclusion of this testimony was an abuse of discretion, which denied the Hansens a fair trial. The district court therefore abused its discretion in denying them a new trial.
VI. Disposition.
Because we conclude the district court abused its discretion in excluding Dr. Pollack's deposition testimony on causation and in denying the Hansens' motion for a new trial, we reverse and remand the case for a new trial.
We have carefully considered all of the issues raised. Those we have not addressed either lack merit or were not properly preserved.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.
All justices concur except LARSON and TERNUS, JJ., who take no part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591110/ | 275 Wis. 2d 832 (2004)
2004 WI App 155
686 N.W.2d 712
STATE of Wisconsin, Plaintiff-Respondent,[]
v.
Christopher ANSON, Defendant-Appellant.
No. 03-1444-CR.
Court of Appeals of Wisconsin.
Submitted on briefs April 22, 2004.
Decided July 21, 2004.
On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven J. Watson of Steven J. Watson Law Office, Lyndonville, Vermont.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Christopher G. Wren, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
Before Anderson, P.J., Brown and Snyder, JJ.
*836 ¶ 1. SNYDER, J.
Christopher Anson appeals from *837 a judgment of conviction and an order affirming his conviction for second-degree sexual assault of a child in violation of WIS. STAT. § 948.02(2) (2001-02).[1] This is the second time that Anson's case is before us. In State v. Anson, 2002 WI App 270, 258 Wis. 2d 433, 654 N.W.2d 48, we discussed the legality of statements that the State obtained from Anson and introduced at trial. Id., ¶ 21. We held that the State violated Anson's Sixth Amendment right to counsel when it undertook its interrogation, and accordingly, the trial court erred when it failed to suppress Anson's statements. Id. We remanded the matter for an evidentiary hearing to determine whether a link existed between the State's introduction of inadmissible statements and Anson's decision to testify at trial. Id., ¶ 29. Anson argues that the trial court failed to follow our directions on remand and that the State failed to prove that its use of the inadmissible statements did not impel Anson to take the stand. We agree and conclude that Anson is entitled to a new trial.
FACTS
¶ 2. We have set forth the historical facts of this case in our previous opinion. Id., ¶¶ 2-7. Those relevant to this appeal are repeated here, with additional facts provided as necessary. On July 26, 2000, the State issued an arrest warrant for Anson and charged him with three counts of sexual contact with a child under the age of sixteen in violation of WIS. STAT. § 948.02(2).
¶ 3. In early August, an officer from the Fontana police department contacted the Orange County California sheriff and asked for assistance in obtaining a *838 statement from Anson. On August 7, the Orange county investigator received a fax that contained an eight-page narrative, a copy of the criminal complaint against Anson, and a Xerox of a photograph of Anson and the victim. The next day, the investigator and his partner went to Anson's workplace, both to get a statement from him regarding an alleged sexual assault that had occurred in Wisconsin and ultimately to arrest him. Anson agreed to speak with the investigators.
¶ 4. During the interview, one of the investigators asked Anson why the victim would make up such a story and Anson stated that the victim had some grounds for the allegation. Anson then admitted to the investigators that the victim, while on the couch, took his hand and placed it over her clothes on her vagina and that he left his hand there for a period of time. Anson also told the investigators that from his point of view no other incidents occurred. He also stated that he had lied to his wife about the incident, telling her that the victim had taken his hand and put it on her breast rather than on her vagina. After the interview, the investigators placed Anson under arrest.
¶ 5. Prior to trial, Anson moved to suppress the statement he gave to the California investigators. The trial court denied the motion. Anson filed an interlocutory appeal of the denial, which was rejected. At trial, Anson's statement was introduced through the testimony of one of the California investigators.
¶ 6. Anson subsequently took the stand and testified that the victim had taken his hand and placed it over her clothes on her vagina. He disputed the California investigator's characterization that he had left his hand there for more than a couple of seconds. Anson also testified about lying to his wife about the incident, explaining that he had tried to minimize the event to *839 avoid upsetting her. Anson denied the allegations related to two other incidents reported by the victim.
¶ 7. A jury convicted Anson on count three of the information, second-degree sexual assault of a child in violation of WIS. STAT. § 948.02(2), which represented the incident on the couch. The jury found Anson not guilty on counts one and two of the information.
¶ 8. Anson appealed the conviction. We concluded that the statement Anson made to the California investigators violated his Sixth Amendment right to counsel and should have been suppressed. Anson, 258 Wis. 2d 433, ¶ 21. In addition, we concluded that if, by testifying, Anson waived his right against self-incrimination, any error created by the illegally obtained statement would be harmless. Id., ¶ 26. We determined that a waiver analysis under Harrison v. United States, 392 U.S. 219 (1968), and State v. Middleton, 135 Wis. 2d 297, 302, 399 N.W.2d 917 (Ct. App. 1986), was required, and we remanded the matter to the trial court with these instructions:
We direct the trial court on remand to hear evidence and make findings of historical fact concerning whether Anson testified in order to overcome the impact of the incriminating statements he made to the investigators. The State bears the burden of showing that its use of the unlawfully obtained statements did not induce Anson's testimony. Further, even if the trial court finds that Anson would have testified anyway, Harrison dictates that for the State to meet its burden of proving that Anson's testimony was obtained by means sufficiently distinguishable from the underlying constitutional violation, it must dispel the natural inference that Anson would not have repeated the inculpatory statements when he took the stand. If the trial court finds that a link in fact exists between the State's constitutional violation and Anson's subsequent *840 decision to take the stand and repeat the inculpatory statements, Anson has not waived his right against self-incrimination and is entitled to a new trial.
Anson, 258 Wis. 2d 433, ¶ 29 (citations omitted).
¶ 9. On remand the State argued that Anson's testimony presented information outside the scope of the California statement and therefore the inducement for testifying was distinguishable from the inadmissible statement. The State also asserted that the prosecution witnesses were so credible that Anson had no choice but to take the stand to rebut their testimony. The court ruled that Anson would have testified even if the inadmissible statement had been suppressed, and that there were independent, distinguishable reasons for his decision to take the stand. Anson appeals.
DISCUSSION
¶ 10. The ultimate issue here is whether Anson waived his constitutional protection against self-incrimination when he testified at trial. To make that determination, Harrison requires a two-part analysis. First, the court must determine whether the trial testimony was impelled by the prosecution's wrongful use of the illegally obtained confession. Harrison, 392 U.S. at 224. If not, the court must then decide whether the incriminating statements would have been repeated in the trial testimony had the illegally obtained confession been suppressed. Id. at 225-26. In other words, Anson's decision to testify and the content of his testimony are to be scrutinized.
¶ 11. On remand the court found that the State's use of Anson's illegally obtained statement did not *841 impel him to testify at trial. The issue before us is whether this finding is in error. We apply a two-step standard of review to issues of constitutional fact. We will not set aside a trial court's finding of historical fact unless it is clearly erroneous. WIS. STAT. § 805.17(2). Our review of a constitutional fact on the grounds of established historical fact, however, is de novo. State v. Turner, 136 Wis. 2d 333, 344, 401 N.W.2d 827 (1987).
¶ 12. The State argues that at the evidentiary hearing the court properly applied a "totality of the circumstances" framework for its ruling. We agree with the State that similar postconviction hearings provide an opportunity to look at the entire record when assessing whether error occurred. See, e.g., State v. Johnson, 153 Wis. 2d 121, 130, 449 N.W.2d 845 (1990) (where the court applied a "totality of the circumstances" analysis at a Machner[2] hearing on ineffective assistance of counsel); see also State v. Bangert, 131 Wis. 2d 246, 275, 389 N.W.2d 12 (1986) (The State may examine the defendant or the defendant's counsel to shed light on the defendant's understanding or knowledge necessary to enter a plea, and may also use the entire record to demonstrate that the defendant knew that constitutional rights would be waived.). We do not agree, however, that the evidentiary hearing court can stray from the record and consider intangible or speculative information from the trial. We hold that at an evidentiary hearing under Harrison/Middleton, the State may examine the defendant or defendant's counsel regarding the defendant's reason for testifying, and may use the entire record to meet its burden of showing *842 that its use of an unlawfully obtained statement did not induce the defendant's trial testimony.
¶ 13. We now turn to the evidentiary hearing. Under Harrison, when a defendant takes the stand in order to overcome the impact of an illegally obtained statement, his or her testimony is tainted by the same illegality that rendered the statement inadmissible. Middleton, 135 Wis. 2d at 302. The State must prove that Anson's testimony was obtained "by means sufficiently distinguishable" from the underlying illegality "to be purged of the primary taint." See Harrison, 392 U.S. at 226 (citing Wong Sun v. United States, 371 U.S. 471, 488 (1963)).
¶ 14. The State called one witness: Jeffrey Recknagel, its primary investigating officer. Recknagel testified that Anson did not have any criminal history and that Anson was calm and articulate on the taped California interview. He further testified as to the appearance and demeanor of several State's witnesses during the trial.[3] The State argued that
[t]he issue is: did [Anson] testify only because this statement was put into evidence, or because of other factors; such as, all of these other witnesses who, if they didn't come across at all credible, it's obvious he wouldn't have bothered or cared to testify to rebut their testimony; however, if they came across as clean cut, articulate, and credible people, that would add to the *843 state's argument that he would have had more reason to testify to rebut their testimony.
¶ 15. The State also referenced trial transcripts to demonstrate that Anson announced during his opening statement that he would testify. Furthermore, the State argues, Anson testified about matters outside the scope of the California statement, including his family history and his relationship with the victim. Finally, the State argued that because Anson's testimony was the same as his California statement, he did not testify to rebut any of its contents.
¶ 16. Anson called one witness, his trial attorney Larry Steen, whose undisputed testimony was that Anson's trial testimony was induced by the admission of Anson's illegally obtained confession. See Harrison, 392 U.S. at 224 (The question is "whether the petitioner's trial testimony was in fact impelled by the prosecution's wrongful use of his illegally obtained confessions."). Steen testified that he knew of the California interview and that he moved for suppression of the statement; however, the court ruled that the statement was admissible. Steen then explained the advice he had given his client about testifying at trial:
My recommendation to [Anson] was that he was going to have to testify at the jury trial because of the fact that the statement was going to be entered in as evidence . . . . On the day of his testimony, I was approached by . . . [Anson's] stepfather, who told me that [Anson] did not want to testify . . . . I then found [Anson] either in the courtroom or the hall. I don't remember. I asked [Anson] what was wrong. He said he did not want to testify. I told him he absolutely had to because of the damaging effect of that statement . . . . He told me he would follow [my] advice.
On cross-examination, Steen responded as follows:
*844 Q . . . What sort of factors did you take into consideration in your discussions with the defendant in deciding whether or not he would take the stand?
A The statement was the sole reason. The statement was the key piece of evidence, except for what [the victim] said happened. That was the only evidence the state had.
¶ 17. Anson points out that by the time he made his opening statement, his motion to suppress had been denied and his attempt at an interlocutory appeal on that decision had been unsuccessful. Anson further observes that the State's opening comments broadcast to the jury that it would use the California statement against him. During its opening statement, the State told the jury that Anson admitted the victim might have some grounds for her allegation. The State also told the jury that it would hear Anson's admission that when the victim took his hand and put it on her vagina, he froze for three minutes. Finally, the State told the jury that Anson had lied to his wife about the incident. Steen testified that the defense felt "the case turned on the statement given in California."
¶ 18. At the conclusion of the evidentiary hearing, the court ruled that there was an "independent distinguished basis" for Anson's testimony other than the California statement. The court relied on the following findings of historical fact:[4] (1) In the taped statement, Anson admitted to one incident of touching but explained it by the concept of consent; (2) In addition to Anson's statement, the State offered the testimony of *845 the victim and other witnesses; (3) Anson had no criminal record; (4) Anson's trial testimony was substantially the same as the California statement; and (5) Steen told Anson he had to take the stand.
¶ 19. The record reveals that the court also considered facts not in evidence at trial or the hearing. The court referenced its observations of family distress in the courtroom during the trial, as well as trial witness credibility to make its findings. These were not appropriate considerations. By straying into intangible aspects of the trial, the evidentiary hearing court violated Anson's Sixth Amendment right to confront witnesses against him. Specifically, the court based its ruling in part on the following observation:
Quite honestly, [Anson testified] also perhaps to have some kind of compatibility with what he had told his wife before. That might not have been known to the state, but that might have been something he had to face the family to get up there and take the stand. And I saw the whole family scenario here as a trial Judge. So I know there was a tremendous division, and reason for [Anson] to take the stand and deny or explain it.
In effect, the court speculated on the family's influence without providing Anson with an opportunity to confront the family members on the issue. Based on its findings, the court stated that Anson "really had no other reason not to testify" because he had no criminal record to hide and he did not substantially change the story he told the investigators. The court concluded, "I'm making my determination that it's not linked in the sense that is set forth in the Harris(sic) case, which I believe was adopted . . . and that's it."
*846 ¶ 20. We will find an erroneous exercise of discretion when the record shows that the lower court failed to exercise its discretion, the facts fail to support the court's decision, or we find that the court applied the wrong legal standard. State v. Black, 2001 WI 31, ¶ 9, 242 Wis. 2d 126, 624 N.W.2d 363. Here, we have several concerns regarding the exercise of discretion.
¶ 21. First, the court mischaracterized the inquiry. The State's burden was to prove that its use of illegal evidence did not induce Anson to testify. Anson, 258 Wis. 2d 433, ¶ 29. The court's determination that Anson "really had no other reason not to testify" reflects the wrong legal standard. The Harrison Court acknowledged that there may be many reasons for a person to take the stand. Harrison, 392 U.S. at 224 ("It is, of course, difficult to unravel the many considerations that might have led the petitioner to take the witness stand . . . . But, having illegally placed his confessions before the jury, the Government can hardly demand a demonstration by the petitioner that he would not have testified as he did if his inadmissible confessions had not been used."); see also United States v. Pelullo, 173 F.3d 131, 136 (3rd Cir. 1999) ("The Harrison Court recognized the importance of examining that causal link to determine whether the government's use of a defendant's illegal confession at trial induced the defendant to take the stand to testify and, in doing so, make a number of admissions that might not have come out but for that testimony. While acknowledging that a number of factors inevitably play a part in a defendant's decision to testify, the Court concluded that the government had failed to prove that the defendant's testimony was obtained by means sufficiently distinguishable *847 from the underlying constitutional violation."). Had Anson's inadmissible statement been properly suppressed, he had a compelling and constitutionally sound reason not to testify: the Fifth Amendment protection against self-incrimination. More importantly, he would have had the opportunity to weigh that protection against the benefits of testifying to refute legally introduced evidence.
¶ 22. Second, the court did not explicitly identify the historical facts underpinning its decision. We were left to infer from the evidentiary hearing record which facts may have influenced the court's ruling. We are particularly concerned that the court resorted to facts not in evidence to reach its conclusion. Specifically, the court's characterization, and apparent consideration, of the family's courtroom interactions during trial deprived Anson of his Sixth Amendment right to confront witnesses against him. Here, the court speculated on Anson's motive for testifying without any facts to support the inferences drawn and without an opportunity for Anson to cross-examine those whose behavior apparently influenced the court.
¶ 23. Finally, the court did not address the second part of the Harrison test: whether Anson would have repeated the incriminating statements on the stand had the California statement been properly suppressed. See Harrison, 392 U.S. at 225. Even if Anson would have chosen to testify, it is unlikely that he would have said that the victim "may have some grounds for the allegation," or referenced a three-minute time frame for the touching episode, or admitted lying to his wife about the incident. The State has not, therefore, defeated the "natural inference" that "no testimonial admission so *848 damaging would have been made if the prosecutor had not already spread the petitioner's confessions before the jury." Id. at 225-26.
¶ 24. Interestingly, the only direct evidence of Anson's inducement to testify came from Steen's testimony at the hearing. The State did not call Anson to refute Steen's testimony, nor did it undertake to call Steen's credibility into question. We acknowledge that the trial court has no obligation to believe everything a witness says, and when the record reveals inconsistencies within a witness's testimony or between one witness and another, the court as fact finder determines the weight and credibility accorded to the testimony. State v. Daniels, 117 Wis. 2d 9, 17, 343 N.W.2d 411 (Ct. App. 1983). Here, however, the court was not presented with any inconsistencies from which to choose. The State failed to present any testimony or other evidence to rebut Steen's statements, nor did the State undertake to challenge Steen's credibility. The court simply decided, "I just can't put that much weight on that as a link."
¶ 25. Clearly, having had his own inculpatory statements submitted to the jury, Anson was "powerfully impelled to explain them: after all, no one else was in a position to do so." See Pool v. State, 780 S.W.2d 350, 351 (Ark. App. 1989) ("The Harrison Court placed a great emphasis on the powerful inducement to testify which arises when a defendant's confession is introduced into evidence."). Our independent review of the record allows us to draw only one reasonable inference: that the State's use of the illegally obtained California statement at trial impelled Anson to take the stand and testify in rebuttal. We may decide which *849 inferences may be reasonably drawn from the facts. Middleton, 135 Wis. 2d at 321. Determining the reasonableness of an inference is a "recognized appellate function." Id. If only one reasonable inference is available, the drawing of that inference is a question of law. Pfeifer v. World Serv. Life Ins. Co., 121 Wis. 2d 567, 571, 360 N.W.2d 65 (Ct. App. 1984). The competing inference, that Anson was not impelled by the State's illegal use of his statement, is unreasonable in light of the facts.
¶ 26. At the close of the hearing, the court reinstated Anson's conviction, ruling that the error was harmless. Because we disagree with the court's conclusion that Anson waived his right against self-incrimination, our previous harmless error analysis applies. We resolved this issue, pending the resolution of the waiver issue, as follows:
We cannot conclude that the error was harmless beyond a reasonable doubt . . . . [W]e note that the only count on which the jury convicted Anson is the count involving the incident about which he had made the incriminating statements. In the two other counts, where the sole evidence consisted of testimony, the jury found Anson not guilty. Based on our reading of the record, we cannot conclude that a rational jury would have found Anson guilty absent his statements.
Anson, 258 Wis. 2d 433, ¶ 31. For this reason, we hold that the State's original violation of Anson's constitutional right to counsel is not harmless.
CONCLUSION
¶ 27. We conclude that at an evidentiary hearing under Harrison/Middleton, the State may examine the defendant or defendant's counsel regarding the defendant's *850 reason for testifying, and may use the entire record to meet its burden of showing that its use of an unlawfully obtained statement did not induce the defendant's trial testimony. We further conclude that the State did not meet its burden to prove that "its use of the unlawfully obtained statements did not induce Anson's testimony." Anson, 258 Wis. 2d 433, ¶ 29. Also, at the evidentiary hearing the court failed to complete the second step of the Harrison analysis which requires the court to determine whether the State has dispelled the natural inference that even if the defendant takes the stand, he or she will not repeat the inculpatory statements. Anson, 258 Wis. 2d 433, ¶ 29. Finally, we conclude that Anson did not waive his Fifth Amendment protection against self-incrimination when he testified because he took the stand to overcome the impact of his illegally obtained and used confessions. See Harrison, 392 U.S. at 223 (If a defendant takes the stand "in order to overcome the impact of confessions illegally obtained and hence improperly introduced, then his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible."); see also Middleton, 135 Wis. 2d at 317 ("If [the defendant's] testimony was, in fact, impelled by the prosecution's use at the trial of his illegally obtained confessions, then his testimony is as tainted as his confessions."). Anson's conviction on count three is therefore reversed and he is entitled to a new trial.
By the Court.Judgment and order reversed and cause remanded with directions.
NOTES
[] Petition to review granted 12-15-04.
[1] All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
[2] State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
[3] For example, Recknagel testified that one witness against Anson was "[v]ery calm, collect, fully adult . . . very proper [and] well-dressed." Anson objected to Recknagel's testimony, arguing that Recknagel was not competent to testify on witness credibility. The court did not explicitly rule on the objection, but allowed the testimony to continue.
[4] Although not explicitly identified as findings of fact, the court incorporated these statements into its oral ruling at the evidentiary hearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590694/ | 686 N.W.2d 878 (2004)
Raymond D. IRWIN, Appellant,
v.
Kevin GOODNO, Commissioner of Human Services, Respondent.
No. A04-751.
Court of Appeals of Minnesota.
September 28, 2004.
*879 Lisbeth J. Nudell, Minneapolis, MN, for appellant.
Mike Hatch, Attorney General, Barbara E. Berg, Assistant Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Theresa F. Couri, Assistant County Attorney, Minneapolis, MN; and Robert M.A. Johnson, Anoka County Attorney, Paul C. Clabo, Assistant County Attorney, Anoka, MN, for respondent.
Considered and decided by TOUSSAINT, Chief Judge; HALBROOKS, Judge; and ANDERSON, Judge.
OPINION
TOUSSAINT, Chief Judge.
Appellant Raymond D. Irwin, who is indeterminately committed as mentally ill and dangerous and as a psychopathic personality, appeals from a decision by the judicial appeal panel. The appeal panel dismissed for lack of subject-matter jurisdiction his petition for rehearing and reconsideration of the order of the Commissioner of Human Services denying his petition for discharge from his commitment as mentally ill and dangerous. Because the appeal panel had subject-matter jurisdiction to address Irwin's petition, we reverse and remand for a hearing and decision on the merits.
FACTS
Raymond Irwin has a long and extensive history of sexual misconduct, other criminal behavior, and mental illness. In his most recent convictions, he was sentenced to 30 months for burglary and 152 months for criminal sexual conduct that occurred in 1984. State v. Irwin, 379 N.W.2d 110, 112-13 (Minn.App.1985), review denied (Minn. Jan. 23, 1986). In 1993, shortly before his scheduled release date, the county filed a petition for his commitment as a psychopathic personality (PP), and then filed an amended petition also seeking his commitment as mentally ill and dangerous (MI&D). After an initial and a review hearing, he was committed as PP *880 and MI&D for an indeterminate period, and this court affirmed. In re Irwin, 529 N.W.2d 366, 376 (Minn.App.1995), review denied (Minn. May 16, 1995).
In 2002, Irwin petitioned the Commissioner of Human Services for discharge from his MI&D commitment, but did not seek relief from his PP commitment. After a hearing, the special review board issued findings and recommended denying the petition, and the commissioner did so. When Irwin petitioned the judicial appeal panel for rehearing and reconsideration of the commissioner's decision, the commissioner moved to dismiss the petition for lack of subject-matter jurisdiction. The appeal panel granted the motion, and this appeal followed.
ISSUE
Did the judicial appeal panel err in dismissing appellant's petition for lack of subject-matter jurisdiction?
ANALYSIS
Whether a court has subject-matter jurisdiction is a question of law reviewed de novo. In re Thulin, 660 N.W.2d 140, 143 (Minn.App.2003). Questions of statutory interpretation are also reviewed de novo. In re Senty-Haugen, 583 N.W.2d 266, 268 (Minn.1998).
Subject-matter jurisdiction is defined as "not only authority to hear and determine a particular class of actions, but authority to hear and determine the particular questions the court assumes to decide." Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 432 (Minn.App. 1995) (quotations omitted), review denied (Minn. May 31, 1995). "Minnesota courts have consistently recognized that statutory requirements limiting a court's jurisdiction are threshold requirements that must be complied with before a court can exercise jurisdiction." State v. Rojas, 569 N.W.2d 418, 420 (Minn.App.1997) (holding that district court may not accept guilty plea without resolving disputed jurisdictional facts as to juvenile's age). "Because subject-matter jurisdiction goes to the authority of the court to hear a particular class of actions, lack of subject-matter jurisdiction may be raised at any time." Cochrane, 529 N.W.2d at 432 (citing Minn. R. Civ. P. 12.08(c)). Subject-matter jurisdiction may not be conferred by consent of the parties. No Power Line, Inc. v. Minn. Envtl. Quality Council, 262 N.W.2d 312, 321 (Minn. 1977). If the court lacks jurisdiction of the subject matter, the court shall dismiss the action. Minn. R. Civ. P. 12.08(c).
District courts are courts of general jurisdiction and have the power to hear all types of civil cases, with a few exceptions, and appellate jurisdiction as prescribed by law. Minn. Const. art. VI, § 3; see 1 Douglas D. McFarland & William J. Keppel, Minnesota Civil Practice § 711 (3d ed.1990). Other courts are courts of limited jurisdiction. 1 McFarland, supra, § 711. For example, conciliation courts may only hear cases involving controversies that do not exceed a set amount. Id.; Minn.Stat. ch. 491A (2002).
Minnesota law provides the statutory framework setting out the subject matter jurisdiction of the judicial appeal panel. A patient committed as mentally ill and dangerous (MI&D) for an indeterminate period "shall be transferred, provisionally discharged or discharged, only as provided in [Minn.Stat. § 253B.18]." Minn.Stat. § 253B.18, subd. 3 (2002). To obtain a discharge from the commitment, the patient must first petition the Commissioner of Human Services. Id., subd. 5(a) (2002). A hearing is held before a special review board, which then makes a recommendation to the commissioner. Id., subd. 5(c) (2002). The commissioner may not discharge the patient unless, after a favorable *881 recommendation by the special review board, there is a determination "that the patient is capable of making an acceptable adjustment to open society, is no longer dangerous to the public, and is no longer in need of inpatient treatment and supervision." Id., subd. 15 (2002).
In determining whether a discharge shall be recommended, the special review board and commissioner shall consider whether specific conditions exist to provide a reasonable degree of protection to the public and to assist the patient in adjusting to the community. If the desired conditions do not exist, the discharge shall not be granted.
Id. If the commissioner denies the petition, the patient may then petition the judicial appeal panel for rehearing and reconsideration of the decision. Minn.Stat. § 253B.19, subds. 1, 2 (2002).
When the commissioner denied Irwin's petition for discharge of his MI&D commitment, he petitioned the judicial appeal panel for rehearing and reconsideration. The appeal panel then had subject-matter jurisdiction to consider this general class of action.
The next question, then, is whether the appeal panel had "authority to hear and determine the particular questions the court assumes to decide." Cochrane, 529 N.W.2d at 432 (quotations omitted). The appeal panel ruled that because Irwin was seeking alteration of his commitment status from MI&D and PP to only PP, it lacked jurisdiction to grant him the relief he sought.
Irwin argues that the appeal panel erred because he is seeking a determination on his petition for discharge from his MI&D commitment, which he contends the appeal panel had authority to hear. On the face of his petition, Irwin is seeking discharge and he took the statutorily mandated steps to do so under Minn.Stat. §§ 253B.18, 253B.19. He asserts that he is prepared to come forward with evidence of the factors in Minn.Stat. § 253B.18, subd. 15, necessary to support his argument that his MI&D commitment should be discharged.
The commissioner, however, argues that Irwin's petition does not represent the factors for discharge and that he is really seeking "alteration" of his commitment status, and that the appeal panel does not have jurisdiction over such a question. He analogizes the issue to cases in which persons committed as MI&D sought to have their status "altered" to MI. See In re K.B.C., 308 N.W.2d 495, 498 (Minn.1981) (addressing earlier version of commitment statute); see also Lidberg v. Steffen, 514 N.W.2d 779, 782-83 (Minn.1994) (addressing current version of statute). The commissioner also cites the fact that when first enacted, Minn.Stat. § 253B.18, subd. 3, authorized the alteration of the commitment status of one committed as MI&D, but the next year the legislature deleted the alteration provision. 1983 Minn. Laws ch. 251, § 20.
In Lidberg, the patient was committed as MI&D. 514 N.W.2d at 781. Later, the commissioner changed the patient's commitment status to MI, with the proviso that if he sought discharge, he would have to meet the MI&D procedures for discharge. Id. When the patient later sought discharge, he challenged the application of the MI&D procedures. The supreme court rejected his arguments, ruling, in relevant part, that because he was initially committed as MI&D, requiring him to utilize the MI&D procedures did "not offend his right to equal protection because the procedures are rationally related to the state's legitimate public safety interest." Id. at 784. The commissioner contends that just as those who are committed as MI&D cannot alter their commitment status *882 to only "MI," so, too, Irwin's status cannot be altered from MI&D and PP to PP only.
In addressing the commissioner's argument, we first look at the relationship between an MI and MI&D commitment. One who is committed as only MI is one who has a substantial psychiatric disorder and "poses a substantial likelihood of physical harm to self or others as demonstrated by" a failure to obtain necessities or a recent attempt or threat to physically harm self or others. Minn.Stat. § 253B.02, subd. 13(a) (2002). One committed as MI&D is one who is not only mentally ill, but who as a result "presents a clear danger to the safety of others" as shown by the fact that the person "has engaged in an overt act causing or attempting to cause serious physical harm to another" and there is a substantial likelihood the person will do so in the future. Minn.Stat. § 253B.02, subd. 17 (2002). Thus, both commitments require mental illness, but MI&D requires a showing of a higher degree of dangerousness than MI. In re Kottke, 433 N.W.2d 881, 884 (Minn. 1988).
In contrast, commitment as a psychopathic personality is not a variation of an MI&D commitment, but instead requires a showing of distinct factors. Irwin was committed as a PP, upon a showing of (a) a habitual course of misconduct in sexual matters; (b) with an utter lack of power to control sexual impulses; and (c) as a result, inflicting injury on the objects of "uncontrolled and uncontrollable desire." See Irwin, 529 N.W.2d at 374 (citation omitted). Minn.Stat. § 526.09 (1992).[1] Consequently, this is not a situation in which Irwin is attempting to "alter" an MI&D commitment. Because the question here is not whether Irwin can "alter" his commitment, but whether he can meet the standards for discharge under Minn.Stat. § 253B.18, subd. 15, he is entitled to an evidentiary hearing and decision on his petition for discharge.
DECISION
The appeal panel decision is reversed and the matter is remanded for an evidentiary hearing and decision on Irwin's petition for discharge.
Reversed and remanded.
NOTES
[1] Since Irwin's commitment, the legislature has recodified the PP law and renamed the commitment "sexual psychopathic personality." 1994 Minn. Laws 1st Spec. Sess. ch. 1, art. 1, §§ 2, 4, 6. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590744/ | 972 So. 2d 189 (2008)
F.J.
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES.
No. 3D07-1465.
District Court of Appeal of Florida, Third District.
December 26, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591016/ | 42 S.W.3d 397 (2001)
344 Ark. 317
Judy Ann BEARDEN
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES.
No. 01-31.
Supreme Court of Arkansas.
March 29, 2001.
*398 Robert L. Herzfeld, Jr., Benton, for appellant.
Kathy L. Hall, Little Rock, for appellee.
ANNABELLE CLINTON IMBER, Justice.
Judy Ann Bearden appeals the order of the Saline County Chancery Court terminating her parental rights with respect to her two oldest children. This appeal is before us on petition for review of the opinion issued by the Arkansas Court of Appeals in Bearden v. Arkansas Dep't of Human Servs., 72 Ark.App. 184, 35 S.W.3d 360 (2000), reversing the chancery court's order. We have jurisdiction pursuant to Ark.Sup.Ct.R. 2-4(c). Upon a petition for review, we consider a case as though it had been originally filed in this court. Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000) (citing Maxey v. Tyson Foods, Inc., 341 Ark. 306, 18 S.W.3d 328 (2000); Woodall v. Hunnicutt Construction, 340 Ark. 377, 12 S.W.3d 630 (2000); White v. Georgia-Pacific Corporation, 339 Ark. 474, 6 S.W.3d 98 (1999); Burlington Indus. v. Pickett, 336 Ark. 515, 988 S.W.2d 3 (1999)). We hold that the chancellor's decision to terminate Ms. *399 Bearden's parental rights must be affirmed.
Ms. Bearden is the natural mother of three children, Devin Bearden,[1] born August 23, 1993, Peppermint Koolaid Lacira Welsh,[2] born November 12, 1997, and Jaresha Ashley Dawn Welsh,[3] born August 8, 1999. On November 25, 1997, the Arkansas Department of Human Services ("DHS") filed a petition for emergency custody in the Saline County Chancery Court seeking emergency custody of newborn Peppermint, who was born five weeks premature and weighed only five pounds. Because of her small size, she had to be fed frequently and bundled to maintain her body temperature.
Ms. Bearden was discharged the day after she gave birth to Peppermint and did not contact the hospital again regarding her baby until the following day, November 14, 1997, when she expected the baby to be discharged. She contacted the hospital again at approximately 11:00 p.m. on November 15. When she did visit the hospital, personnel became concerned about Ms. Bearden's ability to care for the baby because, despite being given specific instructions to keep Peppermint warm, she kept unwrapping her. Ms. Bearden reported to hospital personnel that she had no place to go when she left the hospital with the baby, so she went to her mother's home even though she had recently been asked to leave that home. At the hearings, Ms. Bearden claimed to have a baby bed, diapers, and the ability to provide formula for the baby. However, DHS workers saw no evidence of these items, other than the diapers and formula sent home with the baby from the hospital. DHS workers also expressed concerns about Ms. Bearden's living conditions. Her mother's home was crowded, with no additional room for the baby. Ms. Bearden was ineligible for public housing. She had no income and was not receiving government benefits, such as Medicaid or Food Stamps. The workers were also concerned that, if Ms. Bearden was able to obtain employment, she would leave the baby in the care of her mother who suffered from memory loss. Finally, with regard to Peppermint's welfare, DHS workers testified that Ms. Bearden had received prenatal care only twice during her pregnancy, admitted to using cocaine during her pregnancy, and tested positive for both cocaine and marijuana following the birth of the baby.
A few weeks after taking Peppermint into custody, DHS also petitioned for emergency custody of Ms. Bearden's older child, Devin. DHS asserted that emergency custody was necessary because, on November 29, 1997, police were called to Ms. Bearden's home by concerned neighbors whose children informed them that Devin was sitting on the steps of his house smoking marijuana. According to the officer on the scene, Devin was running down the middle of the road when he arrived. Witnesses informed the officer that they had seen Devin smoking earlier. Devin admitted *400 that he had been smoking, that he stole his cigarette from the table where his grandfather rolls his cigarettes, and that he lit the cigarette himself by turning on the gas stove. When asked if he knew what a joint was, Devin responded "tobacco," and when asked what he had been smoking, he responded "tobacco." He promised that he would not smoke anymore. The officer found marijuana mixed with tobacco and rolling papers on a table in Ms. Bearden's living room. When testimony of Devin's smoking activities was elicited at trial, Ms. Bearden spontaneously exclaimed: "He's been doing that since he's been in diapers and I whopped his butt for it and it didn't do no good."
Devin had been left in the care of Ms. Bearden's mother on the afternoon that he was taken into custody. Ms. Bearden's mother, upon questioning, became confused and talked repeatedly about spaghetti. The officer on the scene observed Devin's interaction with his grandmother while waiting for DHS to respond to his call. Devin's grandmother tried to catch him in the yard, but he ran away from her, threw sticks and rocks at her, and kicked her to break loose whenever she managed to get hold of him. After observing this, the officer took Devin into custody. Upon returning to the house after taking Devin to the police department, the officer, accompanied by a DHS investigator, encountered Ms. Bearden's father and uncle arriving home in an extremely intoxicated state.
Both children were adjudicated dependent-neglected on March 13, 1998, and counsel was appointed to represent Ms. Bearden. In various orders filed by the trial court during the dependency-neglect proceedings, Ms. Bearden was instructed to seek inpatient treatment for her drug problem, undergo a psychiatric evaluation, submit to random drug screens, and to enter into and participate in the Women and Children in Sobriety Center. On August 6, 1998, the trial court entered an order finding that Ms. Bearden had not complied with the orders of the court by failing to complete a substance-abuse program, testing positive for cocaine at least once since the previous court hearing, failing to attend Alcoholics Anonymous regularly, and failing to complete a psychological evaluation. Ms. Bearden was again ordered to complete a psychiatric evaluation, attend Alcoholics Anonymous regularly and obtain a sponsor, complete parenting classes, and attend counseling. Ms. Bearden was held in contempt on November 13, 1999, for her failure again to abide by the court's orders to attend Alcoholics Anonymous regularly and obtain a sponsor, to complete parenting classes, and to submit to random drug screens. Ultimately, on December 17, 1998, DHS filed a petition to terminate Ms. Bearden's parental rights with regard to both Devin and Peppermint. Although Ms. Bearden's counsel successfully obtained a continuance in the termination proceedings because Ms. Bearden was finally obtaining drug treatment, had applied for social security benefits, and had obtained employment, subsequent hearings revealed that she had resumed her drug abuse, tested positive for cocaine, had been denied social security benefits, and did not maintain her employment.
In support of termination, DHS offered evidence that Ms. Bearden had failed to (1) maintain a stable residence and was ineligible for public housing for three years; (2) obtain stable employment; and (3) complete drug-treatment or parenting classes. In addition, Ms. Bearden continued to use cocaine and repeatedly missed visitations or arrived late to visit her children. Although DHS successfully gained her entry to the Arkansas Cares treatment facility and agreed to an extended term of *401 visitation so that Devin and Peppermint could live with her at the facility, Ms. Bearden was soon asked by Arkansas Cares to leave the facility. The children were again placed in foster care. Ms. Bearden entered other treatment facilities as well, but was never able to remain drug free. Every time she left a drug treatment facility she tested positive for cocaine. By the time the termination hearing occurred, Ms. Bearden's probation had been revoked and she was incarcerated because of her continued drug abuse, association with convicted felons, and inability to maintain a stable address. Ms. Bearden's probation officer testified that "[e]very time I talked to Judy, it was a new address. It was never the same, and also the continuous use of cocaine."
DHS also presented evidence that Ms. Bearden did not interact appropriately with her children during visitation. Rather than playing with the children and reading them stories, Ms. Bearden would sit on the sofa and talk about herself. When Devin approached her with toys and books, she would acknowledge him, but would not play with him or read the book. On one occasion, Ms. Bearden became irritated with the children after only thirty minutes and informed the worker that she was tired of the children already. She then sat on the sofa and talked to the worker for the remainder of the hour-long visitation.
In an order entered on October 16, 1999, the Saline County Chancery Court terminated the parental rights of Ms. Bearden with respect to her two oldest children, Devin and Peppermint. The trial court determined, as a basis for termination, that DHS had proven by clear and convincing evidence that Ms. Bearden "demonstrated repeatedly an inability or unwillingness to correct the problems that necessitated the removal of the children from her custody, specifically, maintaining a drug-free lifestyle, a stable home, and establishing stable employment." The trial court found that it would be futile and detrimental to the children's best interests, safety, and welfare to remain in the care and custody of Ms. Bearden, and consequently ordered that Ms. Bearden's parental rights be terminated. It is from this order that appeal is taken.
I. Waiver of Counsel
For her first point on appeal, Ms. Bearden argues that the trial court deprived her of her right to waive the assistance of counsel at the termination hearing. In support of this argument, Ms. Bearden asserts that the constitutional right to the assistance of counsel at parental-termination hearings must necessarily carry with it the inverse right to waive that assistance if desired.
Whether due process requires the appointment of counsel in a particular parental-termination proceeding is a matter for the trial court to determine, subject to appellate review. Lassiter v. Department of Soc. Servs., 452 U.S. 18, 32, 101 S. Ct. 2153, 2162, 68 L. Ed. 2d 640 (1981). Although it may be wise public policy for the States to adopt higher standards of protection for parents in dependency-neglect and termination proceedings, the threshold requirement for state courts in determining whether to appoint counsel to indigent parents in termination proceedings is fundamental fairness. Id., 452 U.S. at 33-34, 101 S.Ct. at 2163. Consequently, according to the Supreme Court, there is no absolute due process right to counsel in all parental-termination proceedings. Id. Rather, it is an issue that must be addressed on a case-by-case basis. Id. The State of Arkansas has chosen to allow the appointment of counsel for indigent parents in all parental-termination proceedings. ACA 9-27-316(h) (Supp.1999). *402 However, this is a State-conferred statutory right. The due process right to counsel arises only if the circumstances of each particular case indicate that fundamental fairness requires the appointment of counsel. Lassiter v. Department of Soc. Servs., supra.
In the instant case, the trial court did not make a due process determination when appointing counsel to represent Ms. Bearden. However, assuming without deciding, that due process required the trial court to appoint counsel to represent Ms. Bearden in this matter, her waiver of that due process right must also satisfy constitutional standards. "It is ... well established that an accused has a constitutional right to represent himself and make a voluntary, knowing, and intelligent waiver of his constitutional right to the assistance of counsel in his defense. But every reasonable presumption must be indulged against the waiver of fundamental constitutional rights." Akins v. State, 330 Ark. 228, 237-38, 955 S.W.2d 483 (1997) (quoting Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996).)
A waiver of the fundamental right to the assistance of counsel is valid only when:
(1) the request to waive the right to counsel is unequivocal and timely asserted;
(2) there has been a knowing and intelligent waiver of the right to counsel; and
(3) the defendant has not engaged in conduct that would prevent the fair and orderly exposition of the issues.
Collins v. State, 338 Ark. 1, 6, 991 S.W.2d 541 (1999); see also Mayo v. State, 336 Ark. 275, 984 S.W.2d 801 (1999).
In the instant case, the following colloquy occurred at the outset of the termination hearing:
THE COURT: Okay. I think it's ready for trial. I appointed Mr. Herzfeld to represent you, Ms. Bearden.
MS. BEARDEN: Yeah, I know that.
THE COURT: And he's talked to you, I know at leastwell, he's talked to you several times. Has he explained to you what the purpose of this hearing is?
MS. BEARDEN: Yes, he did.
THE COURT: He indicated to me just moments ago that he thought you weren't interested in him representing you, is that true?
MS. BEARDEN: Yes, it is, but I really don't know what to do, to be honest with you. I've never heard anything or seen anything like this in my life.
THE COURT: I know. That's why I appointed Mr. Herzfeld to represent you. I mean, I certainly won't force him to if you are going to insist that he not.
MS. BEARDEN: Uh, I think I would rather represent myself.
THE COURT: Okay. You just got through telling me you didn't have any idea what was going on here and you've never been involved in anything like this in your life.
MS. BEARDEN: I said I've never seen or heard of a case like this before where
THE COURT: Why wouldn't you want Mr. Herzfeld to represent you?
MS. BEARDEN: Because I
THE COURT: He's a licensed attorney who does know what's going on.
MS. BEARDEN: He does, I know. I do, too. I know what's going on, too, sir.
THE COURT: Well, you don't want him to represent you?
MS. BEARDEN: (No oral response.)
*403 THE COURT: I'm going to order that he represent you anyway.
MS. BEARDEN: Okay.
THE COURT: Unless you have some alternative. Do you have another attorney?
MS. BEARDEN: No.
Ms. Bearden was far from unequivocal in her request to waive counsel. When asked by the court if it was true that she wanted to waive counsel, Ms. Bearden responded that she "really [did not] know what to do." She later stated that she thought she wanted to represent herself, but when again asked if she did not want counsel to represent her, she gave no response. Because of the equivocal nature of Ms. Bearden's request, the trial court did not err in refusing to allow her to proceed pro se. See Collins v. State, supra.
Ms. Bearden argues alternatively that the trial court was not authorized pursuant to Arkansas Code Annotated section 9-27-316 to force counsel upon her. The State argues, conversely, that the statute does not authorize the parent to waive the assistance of counsel once counsel has been appointed.
(1) In all proceedings to remove custody from a parent or guardian or to terminate parental rights, the parent or guardian shall be advised, in the dependency-neglect petition or the ex parte emergency order and the first appearance before the court, of the right to be represented by counsel at all stages of the proceedings and the right to appointed counsel if indigent.
(2) Upon request by a parent or guardian and a determination by the court of indigence, the court shall appoint counsel for the parent or guardian in all proceedings to remove custody or terminate parental rights of a juvenile.
Ark.Code Ann. § 9-27-316(h) (Supp.1999).
Although the court of appeals held that indigent parents have the right to waive counsel pursuant to section 9-27-316(h), that determination was premature. Bearden v. Arkansas Dep't of Human Servs., 72 Ark.App. at 187-88, 35 S.W.3d at 362. Ms. Bearden argued that she had a due process right to the appointment of counsel and, therefore, necessarily had the right to waive that counsel. Assuming, without deciding, that Ms. Bearden did have a due process right to counsel, her request to waive counsel was not unequivocal. It would, therefore, have been error for the trial court to accept that waiver, regardless of the provisions contained in the statute, because her request did not satisfy constitutional standards for the waiver of counsel.
II. Sufficiency of the Evidence
"Where the return of a juvenile to the family home is contrary to the juvenile's health, safety, or welfare, and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time, as viewed from the juvenile's perspective," DHS may move to terminate the parental rights of a child for whom the agency is attempting to clear permanent placement. Ark.Code Ann. § 9-27-341(a) (Supp.1999).
We have held that when the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. J.T. v. Arkansas Dep't of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Wade v. Arkansas Dep't. of Human Servs., 337 Ark. 353, 990 S.W.2d *404 509 (1999). Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Id. The facts warranting termination of parental rights must be proven by clear and convincing evidence. In reviewing the trial court's evaluation of the evidence, we will not reverse unless the court's finding of clear and convincing evidence is clearly erroneous. Baker v. Arkansas Dep't. of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (2000). Clear and convincing evidence is that degree of proof which will produce in the factfinder a firm conviction regarding the allegation sought to be established. Id. In resolving the clearly erroneous question, we must give due regard to the opportunity of the chancery court to judge the credibility of witnesses. Additionally, we have noted that in matters involving the welfare of young children, we will give great weight to the trial judge's personal observations. Id.
Ullom v. Arkansas Dep't of Human Servs., 340 Ark. 615, 621, 12 S.W.3d 204 (2000).
An order forever terminating parental rights must be based upon clear and convincing evidence that the termination is in the best interests of the child, taking into consideration the likelihood that the child will be adopted and the potential harm caused by continuing contact with the parent. Ark.Code Ann. § 9-27-341(b)(3)(A). In addition to determining the best interests of the child, the court must find clear and convincing evidence that circumstances exist that, according to the statute, justify terminating parental rights. Ark. Code Ann. § 9-27-341(b)(3)(B). One such set of circumstances that may support the termination of parental rights is that the child "has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent." Ark.Code Ann. § 9-27-341(b)(3)(B)(i)(a). It is not necessary that the twelve-month period out of the home be consecutive. Ark.Code Ann. § 9-27-341(b)(3)(B)(i)(b).
There is no dispute that Devin and Peppermint were adjudicated dependent-neglected on March 13, 1998, that they continued out of the home for more than twelve months, and that the conditions causing their removal from the home had not been remedied at the time of termination. Ms. Bearden argues on appeal, however, that the trial court erred because (1) there was insufficient evidence presented at the termination hearing to support the initial removal of the children from her home; (2) there was insufficient evidence that DHS made a meaningful effort to rehabilitate Ms. Bearden's home and correct the conditions that caused the removal; and (3) there was insufficient evidence that reunification was not in the best interests of the children.
In support of her argument that the State should have presented sufficient evidence at the termination hearing to support the initial decision to remove the children from her custody, Ms. Bearden argues that the state is required to present its entire case against the parent in the final termination hearing. However, the case of Briscoe v. State, 323 Ark. 4, 912 S.W.2d 425 (1996), upon which Ms. Bearden relies, does not stand for this proposition. Briscoe only states that it was harmless error for a trial court to conduct hearings in violation of the parent's right to counsel because the parent was represented by counsel at the final termination hearing, and all of the evidence that had been presented at the *405 hearings without counsel was again introduced and was subject to cross-examination by counsel at the final hearing. This holding is peculiar to the facts of the Briscoe case and does not stand for the proposition that, in all termination hearings, the evidence presented at all prior hearings in the case must be reintroduced at the final hearing. To the contrary, the proceedings and orders pertaining to a termination-of-parental-rights case are a continuation of the dependency-neglect case and the evidence adduced at the dependency-neglect proceedings may be considered by the court during termination proceedings. Wade v. Arkansas Dep't of Human Servs., 337 Ark. 353, 361, 990 S.W.2d 509 (1999). A review of the evidence set out above clearly demonstrates grounds for adjudicating the children dependent-neglected and removing them from the care of their mother. In any event, section 9-27-341(b)(3)(B)(i)(a) does not require a second dependency-neglect adjudication at the final hearing. It simply requires DHS to prove that the children have been adjudicated dependent-neglected.
Ms. Bearden next argues that there was insufficient evidence that DHS took meaningful efforts to rehabilitate her home and correct the conditions that caused removal. We disagree. According to testimony, DHS workers provided Ms. Bearden with transportation, referrals to psychiatric treatment, drug abuse treatment, and parenting classes. They transported her children to visit her when she was in treatment or in jail, and contacted HUD regarding her eligibility for public housing. Unfortunately, Ms. Bearden failed to take advantage of any of the forms of assistance she was offered. Despite DHS's attempts to provide drug treatment for Ms. Bearden, which they repeatedly stated was the primary objective in advancing the case plan, Ms. Bearden withdrew herself from all treatment programs, failed to attend Alcoholics Anonymous or Narcotics Anonymous programs with any consistency, and repeatedly tested positive for cocaine use. DHS even made it possible for Ms. Bearden to enter a residential program with her children, but she failed to conform to the standards of the center and was asked to leave the program, resulting in DHS again placing the children in foster care. Ms. Bearden's argument that DHS failed to prove that it made a meaningful effort to assist her in reunification is without merit.
Finally, Ms. Bearden argues that there was insufficient evidence that reunification was not in the best interests of the children. Again, we disagree. Evidence was presented that the foster family with whom the children were living wanted to adopt them. The children had been out of their mother's care for nearly two full years, and for Peppermint the separation began at birth. Ms. Bearden was incarcerated for drug abuse at the time of termination and would not be released on parole until she was able to obtain stable housing, a feat she had been unable to accomplish in the two years pending termination of her parental rights. She had been unable to maintain steady employment when not incarcerated, continued to test positive for drugs, and refused to obtain treatment. Finally, case workers testified that they were concerned about the potential harm to the children that could occur by having to live in continued uncertainty. The children existed in a constant state of anticipation, waiting for visitations with their mother from week to week for which Ms. Bearden frequently did not appear or at which she did not interact with the children. According to the caseworkers, Devin and Peppermint were in need of permanency after two years of uncertainty. This is the objective of the termination *406 procedure, and cannot be lightly discounted. Ark.Code Ann. § 9-27-341(a).
For these reasons, we hold that the trial court did not err in finding clear and convincing evidence to support the termination of Ms. Bearden's parental rights with regard to Devin and Peppermint.
Affirmed.
NOTES
[1] The parental rights of Devin's father, Gabriel Coll, were terminated by default simultaneously with the termination of Ms. Bearden's rights. The termination of Mr. Coll's parental rights is not before us in this appeal.
[2] Although DNA testing was conducted on two putative fathers during the course of this action, the trial court was ultimately unable to determine the paternity of Peppermint. The trial court ordered that the parental rights of any putative or unnamed father of Peppermint be terminated. That order is not appealed.
[3] DHS took custody of Jaresha on August 9, 1999, the day following her birth. She was subsequently adjudicated dependent-neglected, but that order is not part of the present appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591015/ | 686 N.W.2d 339 (2004)
David VAN GUILDER, an incompetent person, by Lee Van Guilder, his conservator, Appellant (A03-911), Respondent (A03-1408),
v.
NATIONAL FREIGHT, INC., et al., Respondents (A03-911), Appellants (A03-1408),
New Prime, Inc., et al., Respondents,
Success Leasing, Inc., Defendant.
Nos. A03-911, A03-1408.
Court of Appeals of Minnesota.
September 14, 2004.
*341 Charles A. Bird, Jeremy R. Stevens, Bird & Jacobsen, Rochester, MN, for appellant/respondent David Van Guilder.
Eric J. Magnuson, Diane B. Bratvold, Richard C. Scattergood, Rider Bennett, LLP, Minneapolis, MN and Jennifer K. Huelskoetter, Bowman and Brooke, LLP, Minneapolis, MN, for respondents/appellants National Freight, Inc., et al.
Mark A. Gwin, Andrea E. Reisbord, Cousineau, McGuire & Anderson, Minneapolis, MN, for respondents New Prime, Inc., et al.
Considered and decided by WRIGHT, Presiding Judge; RANDALL, Judge; and KALITOWSKI, Judge.
*342 OPINION
WRIGHT, Judge.
In these consolidated appeals, David Van Guilder's conservator asserts that he is entitled to judgment notwithstanding the verdict (JNOV) because the jury's award of past medical expenses is inadequate and the jury's determination that he was causally negligent is not supported by the record. National Freight challenges the district court's denial of its motion to reallocate the uncollectible portion of New Prime's equitable share of the judgment under Minn.Stat. § 604.02, subd. 2 (2002). As to Van Guilder's appeal, we reverse the denial of JNOV as to damages and affirm the denial as to fault. As to National Freight's appeal, we affirm the district court's reallocation decision.
FACTS
On December 3, 1999, at approximately 5:30 a.m., in foggy conditions, a multiple-vehicle collision occurred on northbound Interstate 35, south of Owatonna. Shortly before the accident, Steven Whitehead, who was driving a tractor-trailer truck owned by National Freight (collectively National Freight), pulled onto the right shoulder of the northbound interstate to check his on-board computer for directions and to relieve himself. After doing so, he drove along the shoulder to get up to speed and then merged onto the right lane of the highway.
Charles Williams was driving New Prime's tractor-trailer truck (collectively New Prime) northbound on Interstate 35. The New Prime truck struck the National Freight truck from behind. Although the National Freight truck was able to pull ahead and stop on the right shoulder, the New Prime truck jackknifed and completely blocked the northbound lanes of the freeway. A thick, slippery fluid accumulated on the road from the accident, and debris was scattered across the road.
John Kluver was driving a third tractor-trailer truck, also traveling northbound. As he approached the area, traveling at about 55 to 60 miles per hour, Kluver saw Van Guilder's car pass Kluver on the left and then "impact" the jackknifed truck. Kluver braked, and although his truck was sliding, he was able to pull over onto the right shoulder. Kluver next saw a second passenger vehicle (the Hamburg vehicle) and then a third passenger vehicle slide by. The Hamburg vehicle struck Van Guilder's driver's-side door. Van Guilder was seriously injured.
Van Guilder's conservator sued National Freight and its driver, Whitehead, and New Prime[1] and its driver, Williams. At trial, Van Guilder presented evidence that he suffered catastrophic injuries and incurred $293,908.21 in medical bills, plus additional expenses for home-care services. The jury determined that Whitehead, Williams, and Van Guilder were negligent in the operation of their respective vehicles, and that their negligence was a direct cause of the accident. The jury assessed the drivers' negligence as follows: National Freight truck driver Whitehead, 37.75 percent; New Prime truck driver Williams, 40 percent; and Van Guilder, 22.25 percent. Among other damages, the jury awarded $100,000 for past medical expenses. The district court denied post-trial motions and denied National Freight's motion for reallocation based on the insolvency of New Prime's insurer. These consolidated appeals followed.
*343 ISSUES
I. Was Van Guilder entitled to JNOV regarding past medical expenses on the ground that the parties stipulated to them and past medical expenses were uncontroverted at trial?
II. Was Van Guilder entitled to JNOV on the jury's findings that he was partially negligent and that his negligence was a direct cause of the accident?
III. Under the Minnesota Insurance Guaranty Association Act, must National Freight, as a joint tortfeasor with a solvent insurer, exhaust its insurance coverage under Minn.Stat. § 60C.13, subd. 1 (2002), before the uncollectible portion is reallocated under Minn.Stat. § 604.02, subd. 2 (2002)?
ANALYSIS
I.
We "will sustain a jury verdict if it is possible to do so on any reasonable theory of the evidence." Hughes v. Sinclair Mktg., Inc., 389 N.W.2d 194, 198 (Minn. 1986). Viewing the evidence in the light most favorable to the verdict, Lesmeister v. Dilly, 330 N.W.2d 95, 100 (Minn.1983), we "will set aside a jury verdict only if [it is] manifestly contrary to the evidence." Hughes, 389 N.W.2d at 198.
Evidence was presented as to two types of "medical expenses." First, there were past "medical bills" in the amount of $293,908.21 for services such as an ambulance, hospital bills, and other medical expenses. Second, there were expenses for past "home health-care services." The jury awarded $100,000 for past medical expenses, and Van Guilder moved for JNOV. In this motion, Van Guilder sought $293,908.21 for his past medical bills, which he asserts is the amount to which the parties stipulated, in addition to the $100,000 awarded by the jury, which he contends only represents past expenses for home health-care services.
The district court ruled that the parties had stipulated only to the foundation for the past medical bills, not that these medical bills were reasonable and necessary. In determining that there was sufficient evidence to support the jury's verdict of $100,000 for past medical expenses, the district court observed that the billing statements for the stipulated medical bills contained some notations as to insurance coverage and payments and that the evidence for the value of past home health-care services was not conclusive. Based on these findings, the district court denied the motion for JNOV.
Van Guilder first argues that the district court erred as a matter of law in ruling that "there was no specific stipulation by [respondents] that the medical expenses were reasonable and necessary." "In the interest of expediting the trial of lawsuits and reducing their costs, litigants are encouraged to stipulate to facts which are not in serious dispute." Southdale Ctr., Inc. v. Lewis, 260 Minn. 430, 434, 110 N.W.2d 857, 860 (1961). When parties stipulate to the facts, the parties and the courts are bound by the stipulation until it is abandoned. Gethsemane Lutheran Church v. Zacho, 253 Minn. 469, 479-80, 92 N.W.2d 905, 913 (1958). Whether the parties arrived at a stipulation is a question of fact, which we review for clear error. See Anderson v. Anderson, 303 Minn. 26, 31, 225 N.W.2d 837, 840 (1975). A dispute may arise as to whether a party stipulated only to foundation or whether the stipulation encompassed the causal connection, reasonableness, and necessity of the facts at issue. See Flanagan v. Lindberg, 404 N.W.2d 799, 800 (Minn.1987). When the parties stipulate only to foundation, a jury's award of damages that are less than *344 the stipulated amount is not inadequate as a matter of law. Id.
Although the parties may have initially stipulated at a pretrial hearing to the necessity, reasonableness, and causal connection of the medical bills in the amount of $293,908.21, they did not refer to this stipulation in later discussions with the district court. The bills for this amount were introduced into evidence with reference to a stipulation but without reference to its terms, and a witness briefly testified as to the necessity and reasonableness of the medical expenses. The district court was neither asked to instruct the jury as to this stipulation nor to insert this sum in the verdict form that was given to the jury. New Prime's counsel referred to the stipulation in closing arguments, but National Freight's counsel did not. After referring to the past medical expenses in the amount of $293,908.21, Van Guilder's counsel stated, "We've done the arithmetic for you." Van Guilder's counsel then asked the jury to add an unspecified amount for home health-care services. Van Guilder's counsel, however, did not expressly refer to a stipulation. On this record, we cannot conclude that the district court clearly erred in finding that there was no stipulation that extended to the necessity and reasonableness of the claimed medical expenses.
Van Guilder argues in the alternative that, even without a stipulation to the amount of past medical expenses, he was entitled to JNOV because the amount was uncontroverted at trial. In denying the motion, the district court concluded that the medical opinions were not "so positive as to exclude doubt," and that it was the jury's duty to consider and weigh the evidence. The district court observed that the billing statements contained notations to insurance coverage and payments, which Van Guilder could have, but did not, delete. Accordingly, the district court held that Van Guilder failed to establish that the verdict was not justified by the evidence.
The amount of damages is a question of fact for the jury, which is entitled to wide deference as long as the amount found is "within the range of reasonable awards." Pulkrabek v. Johnson, 418 N.W.2d 514, 516 (Minn.App.1988), review denied (Minn. May 4, 1988). A jury is not bound to accept medical testimony. Krueger v. Knutson, 261 Minn. 144, 159, 111 N.W.2d 526, 536 (1961). Nonetheless, on this record, we cannot find that there was any disputed evidence as to the amount, reasonableness, or necessity of Van Guilder's past medical expenses. The handful of notations regarding insurance does not provide support for a rational decision to award only $100,000 and to ignore $193,908.21 in medical bills. In the absence of evidence controverting either the amount, reasonableness, or necessity, there was no dispute as to the damages for past medical expenses. Viewing the evidence in the light most favorable to the verdict, we hold that the verdict was manifestly contrary to the undisputed evidence. Accordingly, we reverse the district court's denial of JNOV for Van Guilder in the amount of $293,908.21 for past medical expenses.
II.
Van Guilder next challenges the jury's determination that his negligence was a direct cause of the accident. The jury found the driver of the National Freight vehicle 37.75 percent negligent; the driver of the New Prime truck 40 percent negligent; and Van Guilder 22.25 percent negligent. The jury also found each driver's negligence to be a direct cause of the accident. The district court denied Van Guilder's motion for JNOV, *345 ruling that, when the facts were viewed in the light most favorable to the verdict, there was sufficient evidence to support the jury's findings.
Negligence generally presents a fact question for the jury. Block v. Target Stores, Inc., 458 N.W.2d 705, 712 (Minn.App.1990), review denied (Minn. Sept. 28, 1990). We review the record to determine whether the jury verdict can be sustained on any reasonable theory of the evidence. Hughes, 389 N.W.2d at 198. In doing so, we view the evidence in the light most favorable to the prevailing party. Lesmeister, 330 N.W.2d at 100. "The testimony of a single witness may suffice as the basis for a verdict." Canada by Landy v. McCarthy, 567 N.W.2d 496, 504 (Minn. 1997).
Van Guilder challenges respondents' reliance on the testimony of a single eyewitness, truck driver Kluver, to establish Van Guilder's negligence. He contends that Kluver's testimony is not reliable because Kluver merely speculated that Van Guilder was in the car that passed him, Kluver incorrectly described the color of the vehicle that passed him, and Kluver incorrectly identified the Hamburg vehicle as the one that first struck the New Prime truck.
Kluver testified that Van Guilder passed him while Kluver was traveling 55 to 60 miles per hour. In addition, Kluver testified that he saw Van Guilder's car hit the New Prime truck. From this evidence, the jury reasonably could have believed that Van Guilder's speed was both too fast for the foggy conditions and unreasonable. Further, the jury could have drawn the reasonable inference that, if Kluver was able to avoid the collision and bring his 55,000-pound tractor double trailer to a complete stop, despite sliding, then Van Guilder would have been able to do the same had he not been negligent. Challenges to the appropriate weight and credibility afforded Kluver's testimony were the jury's to resolve. When viewed in the light most favorable to the verdict, the record supports the jury's finding that Van Guilder drove negligently.
Next, Van Guilder contends that National Freight and New Prime failed to prove that his negligence was a direct cause of the accident. He suggests that his injuries were caused not by his collision with the jackknifed New Prime truck, but by the collision of the Hamburg vehicle with his car. Rather than arguing to the jury that the driver of the Hamburg vehicle was negligent, Van Guilder raised this claim for the first time at the JNOV hearing. Van Guilder also argues that it was the burden of National Freight and New Prime to prove which of these impacts was the source of his injuries.
"[I]n a multiple-impact situation, the burden of proving that the harm can be separated falls on [the party] who contend[s] that it can be apportioned." Mathews v. Mills, 288 Minn. 16, 22, 178 N.W.2d 841, 845 (1970). Whether a party's negligence was a proximate cause of plaintiff's injuries "is a question of fact for the jury." McCarthy, 567 N.W.2d at 506.
The jury was properly instructed that there can be more than one direct cause of an accident or harm and that this occurs if the effects of the negligence or fault of two or more persons occurred at about the same time and caused the accident or injury. 4 Minnesota Practice, CIVJIG 27.15 (1999). The question of proximate cause is a question for the jury, and our review of the record establishes that the jury's determination that Van Guilder's negligence was one of the causes of the accident is supported by the evidence.
*346 III.
The final issue is one of first impression concerning the construction and application of Minn.Stat. § 60C.13, subd. 1 (2002), the exhaustion-of-other-coverage provision of the Minnesota Insurance Guaranty Association (MIGA) Act, and its interplay with the joint-tortfeasor reallocation statute, Minn.Stat. § 604.02, subd. 2 (2002).
The jury awarded total damages of $2,350,000 and assessed fault as follows: Steve Whitehead (National Freight), 37.75 percent; Charles Williams (New Prime), 40 percent; and David Van Guilder, 22.25 percent. After reducing the verdict by Van Guilder's percentage of fault, the district court ordered judgment against defendants jointly and severally in the amount of $1,827,125. Based on the jury's allocation of fault, National Freight's equitable share of the judgment was $887,125, while New Prime's equitable share was $940,000.
At the time of the accident, New Prime was fully insured by Reliance Insurance Company. Reliance has since become insolvent, and MIGA has assumed Reliance's obligations in accordance with the MIGA Act, Minn.Stat. §§ 60C.01-.22. National Freight was fully insured by a solvent insurance company, and its insurance limits far exceed the total amount of the judgment. There is no assertion that Van Guilder had any applicable insurance.
National Freight moved for an order declaring MIGA responsible for $300,000 of the judgment, the maximum amount allowable under Minn.Stat. § 60C.09, subd. 3 (2002), based on the insolvency of New Prime's insurer. National Freight's motion also sought reallocation between National Freight and Van Guilder of the remaining uncollectible portion of New Prime's equitable share ($940,000-$300,000=$640,000), pursuant to Minn.Stat. § 604.02, subd. 2. The district court ruled that, pursuant to section 60C.13, subdivision 2, National Freight must exhaust its insurance before MIGA is required to provide coverage. Because National Freight's insurance coverage far exceeded its liability, the district court ruled that MIGA is not responsible for any payment and that National Freight must pay any amount that New Prime is unable to pay due to the insolvency of New Prime's insurer.
Statutory construction presents a question of law, which we review de novo. Hibbing Educ. Ass'n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985). Words and phrases are construed "according to their common and approved usage." Minn.Stat. § 645.08(1) (2002). When ambiguous, the intent of the legislature may be ascertained by considering factors such as the occasion, necessity, and objectives of the law. Minn.Stat. § 645.16 (2002). If two provisions conflict and are irreconcilable, the special provision shall be construed as an exception and shall prevail over the general provision. Minn. Stat. § 645.26, subd. 1 (2002).
We first consider the MIGA Act, Minn. Stat. §§ 60C.01-.22. Many states in the early 1970s addressed the increasing problems caused by insolvent insurance companies by enacting insurance guaranty association acts. Paul G. Roberts, Insurance Company Insolvencies and Insurance Guaranty Funds: A Look at the Nonduplication of Recovery Clause, 74 Iowa L.Rev. 927, 933-34 (1989). These acts often were based on a model act prepared by the National Association of Insurance Commissioners. See Post-Assessment Prop. & Liab. Ins. Guar. Assoc. Model Act, reprinted in 3 NAIC Model Laws, Regulations & Guidelines 540-41 (1997); Roberts, supra, at 933-34 & n. 73. In 1971, Minnesota enacted the MIGA Act, creating MIGA, an organization of all insurers *347 authorized to transact insurance business within the state. 1971 Minn. Laws ch. 145, §§ 1-20.
A stated purpose of the MIGA Act is to protect Minnesota insureds and claimants against financial loss because of the liquidation of an insurer:
The purposes of this chapter are to provide a mechanism for the payment of covered claims under certain insurance policies and surety bonds, to the extent provided in this chapter, minimize excessive delay in payment and to avoid financial loss to claimants or policy holders because of the liquidation of an insurer, and to provide an association to assess the cost of the protection among the insurers.
Minn.Stat. § 60C.02, subd. 2 (2002) (emphasis added). "Thus, MIGA was created to ensure that third-party claimants ... are compensated for covered claims and that policyholders ... do not suffer financial loss due to the insolvency of their insurer." Unique Sys. Dev., Inc. v. Star Agency, 500 N.W.2d 144, 147 (Minn.App. 1993), review denied (Minn. July 15, 1993). The chapter is to be "liberally construed" to effect these purposes. Minn.Stat. § 60C.02, subd. 3 (2002).
MIGA is funded by assessments levied on the member insurers in proportion to each insurer's net direct written premiums, the cost of which is passed on directly to policyholders. Minn.Stat. §§ 60C.06, subd. 1, .18, subd. 1 (2002). From this fund, "covered claims" are paid by MIGA. Minn.Stat. § 60C.05, subd. 1(a) (2002). A covered claim is "any unpaid claim ... which arises out of and is within the coverage of an insurance policy issued by a member insurer if the insurer becomes insolvent." Minn.Stat. § 60C.09, subd. 1(a)(1) (2000). MIGA pays a maximum of $300,000 per covered claim. Id., subd. 3 (2000).
Because New Prime's insurer would have provided coverage for New Prime's $940,000 judgment, and because the insurer is now insolvent, it is a "covered claim." Id., subd. 1(a)(1). The party insured by the insolvent insurer is not liable for any portion of a claim that constitutes the difference between the $300,000 MIGA liability cap and the liability limit of the insolvent insurer's policy. Minn. Mining & Mfg. Co. v. H & W Motor Express Co., 507 N.W.2d 622, 624 (Minn.App.1993), review denied (Minn. Dec. 22, 1993). Here, because New Prime was fully insured for the extent of its liability ($940,000), New Prime is not responsible for paying that judgment, even though New Prime's insurer became insolvent.
At issue is the MIGA Act's exhaustion-of-other-coverage provision, which provides:
Any person having a claim under another policy whether or not the policy is a policy of a member insurer, which claim arises out of the same facts which give rise to the covered claim, shall first be required to exhaust the person's right under the other policy. Any amount payable on a covered claim under this chapter shall be reduced by the amount of any recovery under such insurance policy. For purposes of this subdivision, another insurance policy does not include a workers' compensation policy.
Minn.Stat. § 60C.13, subd. 1 (emphasis added). National Freight first argues that the exhaustion provision does not apply to it as a matter of law. It contends that the statutory language providing that "[a]ny person having a claim under another policy... shall first be required to exhaust the person's right under the other policy," Minn.Stat. § 60C.13, subd. 1 (emphasis added), contemplates only first-person coverage because a "person" has no direct *348 "right" to proceed against another person's insurer in Minnesota. See Cincinnati Ins. Co. v. Franck, 621 N.W.2d 270, 274 (Minn. App.2001) (stating "Minnesota does not have a direct-action statute that allows an injured plaintiff to proceed directly against an insurer"). Instead, the injured party must first obtain a judgment from the insured. Morris v. Am. Family Mut. Ins. Co., 386 N.W.2d 233, 237 (Minn.1986). Consequently, National Freight argues that, because it is not a first-party insurer, the exhaustion requirement does not apply to it.
National Freight cites a Maryland case, which it asserts has discussed this interpretation favorably under a similar statutory framework. Ins. Comm'r of Md. v. Prop. & Cas. Ins. Guar. Corp., 313 Md. 518, 546 A.2d 458, 460, 465 (1988). The provision at issue stated: "Any person having a covered claim against an insurer... shall be required to exhaust first his right under such policy." Md.Code Ann., Ins. § 512(a) (1986). The Maryland Supreme Court commented favorably on the insurance commissioner's argument that this right was "that of a first party claimant against a solvent insurer and not a third party claim against a tort-feasor insured under a policy of liability insurance." Ins. Comm'r, 546 A.2d at 463; see also Sands v. Pa. Ins. Guar. Assoc., 283 Pa.Super. 217, 423 A.2d 1224, 1226-27 (1980), cited favorably in Ins. Comm'r, 546 A.2d at 463-64.
Minnesota's exhaustion provision once had language similar to that of the Maryland statute. The earlier exhaustion provision stated:
Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insurer in liquidation which is also a covered claim, is required to exhaust first any right under the other policy. Any amount payable on a covered claim... shall be reduced by the amount of any recovery under such insurance policy.
Minn.Stat. § 60C.13, subd. 1 (1990) (emphasis added). We addressed this earlier provision when we analyzed the policy of the insured of an insolvent insurer and held that the insured could choose whether to pursue underinsured or uninsured coverage. Wondra v. Am. Family Ins. Group, 432 N.W.2d 455, 459 (Minn.App. 1988), review denied (Minn. Jan. 25, 1989), overruled on other grounds, Garrick v. Northland Ins. Co., 469 N.W.2d 709 (Minn. 1991). We further determined that, if the insured pursued the underinsured coverage, it was not deductible from the MIGA obligation "because it is in excess of the tortfeasor's coverage and is not, therefore, a `covered claim' under section 60C.13." Id. In 1991, the legislature amended section 60C.13, subdivision 1, eliminating the "also a covered claim" language. 1991 Minn. Laws ch. 325, art. 6, § 8. The statute now provides instead:
Any person having a claim under another policy whether or not the policy is a policy of a member insurer, which claim arises out of the same facts which give rise to the covered claim, shall be first required to exhaust the person's right under the other policy.
Minn.Stat. § 60C.13, subd. 1 (2002).
New Prime argues that, before 1991, the analysis of section 60C.13, subdivision 1, focused on whether the claim against the insurer was also a "covered claim." But the focus after the 1991 amendment is on whether the "claim arises out of the same set of facts which give rise to the covered claim." Id. We agree. Consequently, as National Freight acknowledges in its reply brief, the opinions from other jurisdictions are factually distinguishable and not particularly helpful.
*349 The plain language of the MIGA Act does not limit the exhaustion requirement to only first-person coverage. Rather, it broadly applies to "[a]ny person having a claim under another policy ... which claim arises out of the same facts which give rise to the covered claim." Id. An interpretation of the exhaustion provision that adopts the limitation urged by National Freight would thwart the MIGA Act's express purpose of protecting both "claimants" and "policy holders" against financial loss because of the insolvency of an insurer.[2] The legislature was capable of explicitly limiting the exhaustion requirement to first-party insurers had it chosen to do so. In the context of the definition of covered claims, the legislature has specified various types of claims that are not covered.[3] Minn.Stat. § 60C.09, subd. 2. In the absence of express legislative intent, we decline to impose limits under the MIGA Act that are contrary to its stated purpose. MIGA "was created to ensure that third-party claimants ... are compensated for covered claims," as well as that policyholders are "protected from financial loss due to the insolvency of their insurer." Unique Sys., 500 N.W.2d at 147 (emphasis added).
National Freight also maintains that its interpretation meets the MIGA Act's cost-spreading purpose pursuant to Minn.Stat. § 60C.05, subd. 1, which would be compromised if we interpret the exhaustion provision so as to require one insurer to bear the entire judgment. We find this argument unpersuasive. The legislature has expressed a preference that the burden of an insolvent insurer will not be borne by the victim or the insured. As noted by the district court, because of the nature of the association, the legislature has taken affirmative steps to limit MIGA's exposure for any one claim by specifying the types of claims covered by the MIGA Act and by limiting the amount that can be paid on any one claim. Minn.Stat. § 60C.09, subd. 2(2); Unique Sys., 500 N.W.2d at 147; Anderson Trucking Serv., Inc. v. Minn. Ins. Guar. Ass'n, 492 N.W.2d 281, 283 (Minn.App.1992), review granted (Minn. Jan. 22, 1993) and appeal dismissed (Minn. Mar. 30, 1993). The stated purposes of the MIGA Act, however, do not include protection of solvent insurers. And the statutes governing MIGA cannot be interpreted to do so.
Similarly unpersuasive is National Freight's argument that, if the exhaustion *350 requirement is construed to apply to the insurance coverage of other tortfeasors, MIGA loses its incentive to mount a vigorous defense whenever another insured tortfeasor is involved. Indeed, MIGA's incentive is not compromised because the insured remains liable for all damages in excess of the liability limits. Here, in its representation of New Prime, MIGA successfully limited New Prime's share of the verdict to just 40 percent.
Finally, we consider whether the exhaustion provision under Minn.Stat. § 60C.13 or the reallocation provision under Minn.Stat. § 604.02, subd. 2, is applied first. Under the joint-liability statute, when parties are jointly liable, they are generally jointly and severally liable for the entire award. Minn.Stat. § 604.02, subd. 1 (2002). Nonetheless, if one party's equitable obligation is uncollectible, another party may move for reallocation within one year of the judgment. Id., subd. 2. In that circumstance, the district court "shall determine whether all or part of a party's equitable share of the obligation is uncollectible from that party and shall reallocate any uncollectible amount among the other parties, including a claimant at fault, according to their respective percentages of fault." Id.; Hosley v. Armstrong Cork Co., 383 N.W.2d 289, 292-93 (Minn.1986); see also Gregor v. Clark, 560 N.W.2d 744, 745 (Minn.App.1997) (holding that "a court must reallocate all uncollectible obligations among tortfeasors who can pay").
The canons of statutory construction answer this question. If a general provision and a special provision conflict and are "irreconcilable, the special provision shall prevail and shall be construed as an exception to the general provision." Minn.Stat. § 645.26, subd. 1 (2002). An exception to this rule occurs if the general provision was enacted at a later session and the legislature manifestly intended that the general provision should prevail. Id.
First, we conclude that the provision for reallocation is general, applying whenever a party's share of the judgment is uncollectible. See Minn.Stat. § 604.02, subd. 2. In contrast, the MIGA Act is specific, applying only to the particular case of insurer insolvency. See Minn.Stat. § 60C.02, subd. 2. Although the MIGA Act was enacted in 1971 and the reallocation statute was enacted in 1978, there is no manifest indication that the legislature intended the reallocation statute to prevail. 1971 Minn. Laws ch. 145; 1978 Minn. Laws ch. 738. Indeed, section 60C.13 was most recently amended in 1997, making it the provision last addressed by the legislature. 1997 Minn. Laws ch. 52, § 9. As the more specific statute, the MIGA Act, Minn.Stat. § 60C.13, prevails. See Minn.Stat. § 645.26, subd. 1. Accordingly, we conclude, as the district court did, that, because New Prime's equitable share is exhausted under National Freight's policy, nothing remains to be reallocated.
DECISION
We affirm the district court's denial of JNOV on the jury's findings as to Van Guilder's negligence. As to the district court's denial of JNOV for medical expenses, we reverse and hold that Van Guilder is entitled to judgment including past medical expenses of $293,908.21. The exhaustion provision of the MIGA Act, Minn.Stat. § 60C.13 (2002), shall be applied before the reallocation statute, Minn. Stat. § 604.02, subd. 2 (2002), is applied. Thus, National Freight must exhaust its insurance coverage before funds may be recovered from MIGA. Accordingly, we also affirm this aspect of the district court's ruling.
Affirmed in part and reversed in part.
NOTES
[1] After the accident, New Prime's insurer became insolvent, and the Minnesota Insurance Guaranty Association defended New Prime.
[2] That an injured party has no direct right of coverage from the tortfeasor's insurer is based on an analysis of the contractual relationship between the insured and the insurer that is inapposite to our interpretation of the MIGA Act. State Farm Mut. Auto. Ins. Co. v. Tenn. Farmers Mut. Ins. Co., 645 N.W.2d 169, 173-74 (Minn.App.2002), review denied (Minn. Aug. 20, 2002). The exhaustion requirement, as applied here, does not contemplate a direct action by an injured plaintiff against an insurer. As a result of the jury's verdict, Van Guilder has a judgment against two insureds New Prime, whose insurer is insolvent, and National Freight, whose insurer is solvent. The MIGA Act merely provides a mechanism for covering the insolvent insurer's obligation with safeguards, such as the exhaustion requirement and the $300,000 cap, to preserve the financial viability of the association. Moreover, limiting the exhaustion requirement to first-party coverage would protect policyholders but not claimants, thereby rendering one aspect of the Act's purposes unfulfilled.
[3] These include, for example, claims due to a reinsurer or an insurer and claims for subrogation recovery, reinsurance recovery, contribution, or indemnification. Minn.Stat. § 60C.09, subd. 2(2); see In re Liquidation of Nat'l Family Ins. Corp., 603 N.W.2d 668, 670 (Minn.App.1999) (noting that insurers' subrogation claims not covered claims under MIGA, Minn.Stat. § 60C.09, subd. 2). In addition, any first-party claim by an insured whose net worth exceeds $25,000,000 at the end of the year prior to the year in which the insurer becomes solvent is not covered. Minn.Stat. § 60C.09, subd. 2(3). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1548809/ | 119 F.2d 94 (1941)
COMMISSIONER OF INTERNAL REVENUE
v.
CASPERSEN.
No. 7450.
Circuit Court of Appeals, Third Circuit.
April 1, 1941.
L. W. Post, Sp. Asst. to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst. to the Atty. Gen., on the brief), for petitioner.
Jackson R. Collins, of New York City, for respondent.
Before MARIS, CLARK, and JONES, Circuit Judges.
JONES, Circuit Judge.
The taxpayer conveyed certain property to her husband, as trustee. By the terms *95 of the trust agreement,[1] a specified amount of the annual income from the trust estate was definitely payable to the grantor. In the discretion of the trustee, the balance of the income was distributable to the grantor, to relatives of the grantor and her husband, or to the corpus of a trust, by way of accumulations, for the benefit of a minor son of the grantor and her husband.
For the years 1934 and 1935 the balance of the income from the taxpayer's trust (after payments therefrom to her) was distributed by the husband-trustee in part to relatives of himself and his wife and the remaining part to the corpus of the trust for the minor son. The taxpayer returned as income to her from the trust for the two years in question only the payments actually made to her.
The Commissioner of Internal Revenue deemed that the balance of the trust income in excess of the payments made to the grantor was distributable to her "in the discretion of * * * [a] person not having a substantial adverse interest in the disposition of such part of the income," and that it was, therefore, taxable to the grantor under Sec. 167 of the Revenue Act of 1934, c. 277, 48 Stat. 680, 26 U.S.C.A. Int.Rev.Acts, page 727.[2] Accordingly, the Commissioner entered deficiency assessments against the taxpayer for the years in question, reflecting, as also taxable to her, the balance of the trust income. Upon petition by the taxpayer, the Board of Tax Appeals held that the husband-trustee, because of his legal liability for the support of the minor son, had a substantial adverse interest in the disposition of the excess trust income and that the deficiency assessments against the grantor were in error. The pending petition of the Commissioner for a review of the Board's decision followed.
The question here presented may not be answered by concluding simply that the trustee-husband had an interest adverse to his grantor-wife because of his duty to *96 support their minor son to whose use the trustee in his discretion could devote the excess trust income. It is not sufficient that the trustee have merely an adverse interest. Sec. 167 of the Revenue Act of 1934 specifically requires that it be a substantial adverse interest. It was therein, we believe, that the Board of Tax Appeals primarily fell into error. In our opinion the Board failed to ascribe to the word "substantial" the import which its considered use in the statute demands, and thereby, the Board treated as substantial an interest which was not only lacking in substance but which was no more than technically adverse. Legally, as well as in reality, the interest was one in common to both husband and wife as we shall hereinafter point out.
It is of course true that, under local law, a father is under a duty to support his minor children. In re Ganey, 93 N.J.Eq. 389, 394, 116 A. 19, affirmed by the Court of Errors and Appeals, 94 N.J.Eq. 502, 119 A. 925, on the Vice-Chancellor's opinion. And in that sense, his right as trustee to use the excess trust income to augment the corpus of the separate trust for the minor son's benefit[3] constitutes an interest which is adverse in legal contemplation.
But, was the interest adverse under the facts and the law of this case? We think not. It was certainly no more adverse as a motivating influence in the trustee's permissible disposition of the income to the son's trust than it would have been had he distributed it to his wife (the grantor). As husband, he was also liable under local law for the support of his wife. Sobel v. Sobel, 99 N.J.Eq. 376, 378, 379, 132 A. 603; Boehm v. Boehm, 88 N.J.Eq. 74, 78, 79, 101 A. 423. And, it must be borne in mind that, under the trust agreement, the grantor (wife) was a possible distributee of the whole of the trust income. So far, then, as the trustee's interest in disposing of the trust income in relief of his personal liability was concerned, he had no stronger impelling reason to devote the excess income to the son's use than he had to distribute it to his wife. But the husband's disposition of the income in what could be the discharge, pro tanto, of his countervailing duty to support the grantor, would work a flow of the income to the grantor from the trust created by her for which she would be taxable. The interest, therefore, lacked the adversary nature, which the Revenue Act contemplates, so far as its effect upon the grantor was concerned. See Loeb v. Commissioner of Internal Revenue, 2 Cir., 113 F.2d 664, 666; Fulham v. Commissioner of Internal Revenue, 1 Cir., 110 F.2d 916, 918.
The non-adverse character of the trustee's interest is further apparent. The grantor as mother of the minor beneficiary and possessed of a substantial separate estate and income, was also liable under local law for the minor son's support. Alling v. Alling, 52 N.J.Eq. 92, 97, 98, 100, 27 A. 655; Osborn v. Allen, 26 N.J.L. 388, 391. Hence the trustee's disposition of any of the excess income to the use of the minor son operated, from a legal standpoint, to serve an interest of the grantor (mother) equally with that of the trustee (father). The interest of the trustee in distributing income for the son's benefit was therefore not adverse to that of the grantor in the sense contemplated by Sec. 167 of the Revenue Act of 1934. As was said by the Board of Tax Appeals in Cushing v. Commissioner, 38 B.T.A. 948, 950, with respect to the amendment in the 1932 Revenue Act (later Sec. 167 of the Act of 1934), "The statute was deliberately changed so as to exclude a beneficiary `having a very minor interest' from among those who could save the settlor from being taxed on the trust's income."[4] The interest of the trustee, growing out of the duty to support the minor son (which he shared alike with the grantor), if it motivated the exercise of his discretion at all, and his duty to support the wife as well invited a distribution of the income favorable, and not adverse, to the grantor. These facts distinguish the present case from Savage v. Commissioner, 3 Cir., 82 F.2d 92 and Clark v. Commissioner, 3 Cir., 84 F.2d 725.
But even if the interest of the trustee because of his duty to support the minor son was not offset by the grantor's like duty or by the trustee's further duty to support the grantor, still the trustee's interest was unsubstantial as a motive to induce him to distribute income other than as desired by the grantor-wife. For the *97 two years here in question (1934 and 1935) the wife had an annual income of $56,000 and $25,000, respectively, exclusive of the excess trust income here involved, while for the same years the husband's income was roundly $40,000 and $51,000, respectively. The son had a separate estate consisting of several thousand dollars in a bank account contributed to by the father and mother, but, particularly, by the father, and a small trust estate created by the father. The mother and son were supported entirely by the father in an abode common to all of them and in keeping with the family's financial station in life, including a governess for the son paid for by the father. In such circumstances, the contention that the husband's distribution of the excess income to the son's estate was in the service of an interest adverse to the grantor rests too heavily upon the bare and relatively inconsequential legal liability of the trustee.
It is true that, in form, disposition of the excess income rested in the trustee's discretion. But, the mere form should not be permitted to overpower the actual substance. The income was in fact distributed in the grantor's interest. The trustee testified that the accumulations of excess income for the years 1934 and 1935 were "presumably invested for the safeguarding of the boy in future times if I should not be able to help, or if my wife should not be able to help him". Obviously the distribution to the son's estate was for the purpose of building up a competence for him for the future when the legal liability of both the father and the mother for support might be of little avail. It was made without thought for the present legal liability of either and to an end in which the grantor was interested equally with the trustee. That such was the grantor's expectation of her husband's exercise of his discretion is in part indicated by the deed of trust. While the grantor therein provided that, upon her husband's death or resignation, a bank should be substituted as trustee, she also provided that in such event she should become a co-trustee. Viewing the situation realistically, as a proper regard for legal liabilities requires, the scheme which the taxpayer now urges for the trust would be no more than a means for her contributing to the son's estate without liability for tax on the income thus indirectly devoted by her to that purpose. See Loeb v. Commissioner and Fulham v. Commissioner, supra.
It follows that the excess income which was distributable to the grantor in the discretion of the husband-trustee was so distributable by a person not having an adverse interest and that it was, therefore, taxable to the grantor under Sec. 167 of the Revenue Act of 1934.
The decision of the Board of Tax Appeals is reversed.
MARIS, Circuit Judge (dissenting).
I am of the opinion that the Board of Tax Appeals did not err in holding that the trustee had a substantial adverse interest in the disposition of the trust income involved in this case and that the decision of the Board should be affirmed for the reasons stated in its opinion, 40 B.T.A. 759.
NOTES
[1] In part here material, the provisions of the trust indenture are as follows: "(3) From the net quarterly income arising from the trust fund hereby created, to pay Firstly, to the said Freda R. Caspersen for and during such time as the said Olaus W. Caspersen, her said husband, shall live, the sum of Six hundred ($600.00) dollars every three months, provided, however, that she shall during such time remain the wife of said Olaus W. Caspersen, and Secondly, to pay out of the remaining balance, after the aforesaid payment, to any blood relative or relatives of the said Freda R. Caspersen and Olaus W. Caspersen at such time, in such amounts, and to such person as in the sole judgment of said Trustee, Olaus W. Caspersen, he shall choose and deem best or proper, to aid them in meeting their necessary living expenses, and Thirdly, any unexpended income remaining after the aforesaid payments in the discretion of and during trusteeship of Olaus W. Caspersen may be paid in whole or in part to the said Freda R. Caspersen or if not paid at the close of the calendar year, shall Fourthly, be added to the corpus of the trust and shall be reflected in a special account on the books of the trust. Such amount as may be accumulated as evidenced by this account may be distributed in the discretion of Olaus W. Caspersen, during his trusteeship only, for the payment of educational, food, shelter, clothes, medical or other necessary expenses of any child or children of Olaus W. Caspersen and Freda R. Caspersen or any issue of such child."
[2] Sec. 167 of the Revenue Act of 1934 provides as follows:
"(a) Where any part of the income of a trust
"(1) is, or in the discretion of the grantor or of any person not having a substantial adverse interest in the disposition of such part of the income may be, held or accumulated for future distribution to the grantor; or
"(2) may, in the discretion of the grantor or of any person not having a substantial adverse interest in the disposition of such part of the income, be distributed to the grantor; or
"(3) is, or in the discretion of the grantor or of any person not having a substantial adverse interest in the disposition of such part of the income may be, applied to the payment of premiums upon policies of insurance on the life of the grantor (except policies of insurance irrevocably payable for the purposes and in the manner specified in section 23(o), relating to the so-called `charitable contribution' deduction);
then such part of the income of the trust shall be included in computing the net income of the grantor.
"(b) As used in this section, the term `in the discretion of the grantor' means `in the discretion of the grantor, either alone or in conjunction with any person not having a substantial adverse interest in the disposition of the part of the income in question.'"
[3] The taxpayer provided in her trust agreement that the trustee could use the excess income "for the payment of educational, food, shelter, clothes, medical or other necessary expenses of" the minor son.
[4] See Senate Report No. 665, 72nd Congress, 1st Session, pp. 34-35. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590727/ | 14 So.3d 201 (2007)
JAMES WHITE
v.
STATE.
No. CR-06-0928.
Court of Criminal Appeals of Alabama.
July 27, 2007.
Decision of the Alabama Court of Criminal Appeals without opinion Rehearing denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592605/ | 453 So.2d 826 (1984)
Gene ABRAMS, Dixie Sea Products, Inc., a Florida Corporation and Robert M. Moore, Appellants,
v.
Sally PAUL and Allen William Paul, D/B/a Paul's Seafood, Appellees.
No. AO-188.
District Court of Appeal of Florida, First District.
June 12, 1984.
*827 Van P. Russell, of Watkins & Russell, Apalachicola, for appellants.
Robert Cintron, Jr., of Dearing & Smith, Tallahassee, for appellees.
PER CURIAM.
Appellants were the defendants in a suit arising out of the sale of a stolen truck to the appellees. The amended complaint contained counts against Abrams and Dixie Sea Products Inc. for breach of warranties, a count against "defendants" alleging fraud, and a count against Moore (an attorney) for malpractice. Although the defendants answered the original complaint, they did not respond to the amended complaint and a default was entered some five months after the amended complaint was filed. Thereafter, a jury trial was held on the issue of damages which resulted in a verdict against the defendants, jointly and severally, in the amount of $22,000 actual damages and $22,000 punitive damages. By this appeal, the defendants challenge the entry of default and the jury verdict. We affirm on all points except the one discussed more fully below pertaining to the trial court's rejection of appellants' contention that they never received the notice of trial. On that issue we reverse and remand for reconsideration by the trial court.
Appellants first assert that the court erred in entering the default against defendant Moore because, they allege, the complaint fails to state a cause of action against him. We have thoroughly reviewed the record on appeal and find no indication that this assertion was ever presented to the trial court. Appellants' motion to vacate the default judgment does not even vaguely refer to the possibility that the default against Moore was improper because the allegations in the complaint were insufficient to state a cause of action against him. Whether the allegations of a complaint which are deemed admitted due to the entry of a default state a cause of action is, as with any other disputed legal issue, preliminarily for the trial court to consider. See North American Accident Ins. Co. v. Moreland, 60 Fla. 153, 53 So. 635 (1910). Since this issue is raised for the first time on appeal, the trial court has not been afforded an opportunity to determine the merits of appellants' assertion. If the issue had been presented to the trial court in the motion to vacate the default, its ruling thereon would, of course, be subject to review by this court. See e.g., GAC Corp. v. Beach, 308 So.2d 550 (Fla. 2d DCA 1975); Bay Products Corp. v. Winters, 341 So.2d 240 (Fla. 3d DCA 1976). However, in the absence of jurisdictional or fundamental error, it is axiomatic that it is the function of the appellate court to review errors allegedly committed by trial courts, not to entertain for the first time on appeal issues which the complaining party could have, and should have, but did not, present to the trial court. Palmer v. Thomas, 284 So.2d 709 (Fla. 1st DCA 1973); 3 Fla.Jur.2d Appellate Review § 92. Appellants do not contend that the alleged deficiencies in the complaint constitute fundamental or jurisdictional error, nor have we found any authority which would support such a contention. We therefore decline to consider the question of whether the complaint sufficiently stated a cause of action against defendant Moore.
Second, appellants argue that the default was improper because they had answered the original complaint. However, the amended complaint was filed after the effective date of the amendment to Fla.R. Civ.P. 1.190(a), which provides that "a party shall plead in response to an amended pleading... ." Therefore, the answer to the original complaint did not carry over so as to be considered a response to the amended complaint.
Next, appellants argue that they were entitled to a new trial because (1) they did not receive the notice of trial; (2) the notice of trial was mailed only 27 days before the trial was set; and (3) the trial court did not enter an order setting the case for trial. *828 Fla.R.Civ.P. 1.440. Rule 1.440 provides in pertinent part:
(b) Notice for Trial. Thereafter any party may file and serve a notice that the action is at issue and ready to be set for trial. The notice shall include an estimate of the time required, whether the trial is to be by a jury or not and whether the trial is on the original action or a subsequent proceeding. The clerk shall then submit the notice and the case file to the court.
(c) Setting for Trial. If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. Trial shall be set not less than thirty days from the service of the notice specified in subdivision (b)... .[1]
In their motion for a new trial, appellants alleged that they never received the notice of trial. The motion was accompanied by affidavits executed by Moore and his secretary to that effect. While the trial court found specifically that Moore's affidavits "were not sufficient to overcome" the "prima facie proof of service and receipt" arising from the certificate of service in the plaintiff's notice of jury trial, the language in the order indicates that the judge may have misapprehended his authority and duty to make a factual determination that defendants did or did not receive the notice of trial. The order states in pertinent part:
The certificate of service set forth in plaintiff's notice of jury trial is prima facie proof that the notice was mailed to and received by counsel for defendants. Defendant Moore's sworn affidavits that his office had not received the notice of jury trial were not sufficient to overcome such prima facie proof of service and receipt.
The presumption raised by the certificate of service is clearly not conclusive. Neither is a sworn denial of receipt either sufficient or insufficient as a matter of law in rebuttal of the presumption. Both Scott v. Johnson, 386 So.2d 67 (Fla. 3d DCA 1980), and Winky's, Inc. v. Francis, 229 So.2d 903 (Fla. 3d DCA 1970), support the proposition that whether the defendants received the notice of trial is a question of fact for the trier of fact. Both cases explicitly recognize that the certificate raises only a rebuttable presumption. Scott actually reversed the trial court and remanded for an evidentiary hearing on whether "the presumption of receipt created by such mailing has not been overcome by sufficient and competent evidence." 386 So.2d at 69. The Scott decision does contain, however, certain unfortunately worded dictum that "this presumption is not overcome by a denial, even though sworn, that the order was not received," citing in support of that statement Service Fire Insurance Co. of New York v. Markey, 83 So.2d 855 (Fla. 1955); Milros-San Souci, Inc. v. Dade County, 296 So.2d 545 (Fla. 3d DCA 1974); and Allstate Insurance Co. v. Dougherty, 197 So.2d 563 (Fla. 3d DCA 1967). Two of the cited decisions involved mailing notices of insurance cancellation which, under the terms of the respective policies, were deemed complete when mailed, irrespective of actual receipt by the insured. The other case, Milros-Sans Souci, involved the mailing of a tax assessment that was held to create a presumption of receipt which was not overcome by the appellants at an evidentiary hearing at which witnesses for the respective parties testified. The dictum in Scott should not, in light of the cited authorities, be taken to mean that a sworn denial of receipt is insufficient as a matter of law to overcome the rebuttable presumption. Winky's, Inc., involved personal service of process by a deputy sheriff on the resident agent of the defendant, who denied actual receipt. After a full evidentiary hearing on this question, the trial court found that "[b]y virtue of the fact that the Deputy Sheriff says he went to the place of business, was told who Mr. Krieger was, and served that individual, on *829 the face of it, proper service was had." 229 So.2d at 905. The trial court's holding that defendant's testimony denying receipt did not overcome the deputy's evidence of actual service was affirmed on appeal. Accordingly, neither Scott nor Winky's compels disregard of the affidavits of denial filed by defendant Moore and his secretary in the instant case.
The issue is therefore a factual one requiring the trial court to weigh the evidence and make a determination as to whether the notice was received. In addition to the attached affidavits, the motion herein stated affiant's preparedness to testify as to office records and lack of receipt. Since the record reflects no evidentiary hearing on the issue, and the quoted language from the order, supra, indicates that the trial court's determination was based upon the incorrect premise that the presumption of receipt established by the certificate of service could not, as a matter of law, be overcome by the defendant's sworn statements, we reverse the order of denial and remand the cause to the trial court for determination of the essential fact.
A difficult question is also presented by the allegations of reversible error based on the court's failure to enter an order setting the trial, for a time more than thirty days from the service of the notice. The rule expressly requires the trial court to enter an order setting the case for trial, and does not provide an exception for local practice to permit reliance on the notice and dispense with the order. However, in Padgett v. First Federal Savings and Loan, 378 So.2d 58 (Fla. 1st DCA 1979), this court took judicial notice that it is in fact the custom and practice in many jurisdictions to dispense with the order. Although the opinion criticized the practice, it stated that "we must accord a fairly wide latitude to the local courts in the handling of these matters." Because the defendants had received actual, timely notice of the trial, the court in that case found that they had not shown that they were prejudiced by the technical violation and no reversible error occurred.
More recently, in Heritage Casket and Vault Inc. v. Sunshine Bank, 428 So.2d 341 (Fla. 1st DCA 1983), this court refused to apply the harmless error doctrine in a case involving a violation of Rule 1.440. However, in that case the actual notice of trial[2] was mailed only eight days before the final hearing. While recognizing that the 30-day requirement has not always been rigidly enforced,[3] this court held that such short notice (effectively seven days at the most) did not comport with due process requirements and refused "to stretch the limits of the trial court's discretion to permit such a complete disregard for a rule of civil procedure."
Although the present case falls somewhere between Padgett and Heritage Casket, we conclude that appellants' due process rights were not violated and no fundamental error occurred in this respect. If the trial court, after hearing on remand, resolves against defendants the factual issue as to receipt of the notice mailed 27 days before trial, appellants would not in our opinion be able to demonstrate prejudice from the technical violation of Rule 1.440. Reversible error is accordingly not shown on that point. Of course if the trial court determines on remand that the notice of trial was not received, the question of whether it was mailed within thirty days will be moot. See Heritage Casket, supra.
Finally appellants argue that it was error to permit the jury to assess punitive damages against the defendants "jointly and severally." We do not reach the merits of this argument because no such error is preserved absent an objection to the verdict form. See Whitman v. Castlewood *830 International Corp., 383 So.2d 618 (Fla. 1980); Middelveen v. Sibson Realty Inc., 417 So.2d 275 (Fla. 5th DCA 1982); Rose's Stores Inc. v. Mason, 338 So.2d 1323 (Fla. 4th DCA 1976); High, Clarke & Feneis Inc. v. Public Service Mutual Insurance Co., 238 So.2d 169 (Fla. 3d DCA 1970); Fla.R.Civ.P. 1.470(b). This issue would also, of course, be mooted if new trial is granted on other grounds, supra.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
WENTWORTH and JOANOS, JJ., concur,
ZEHMER, J., concurs in part and dissents in part with opinion.
ZEHMER, Judge, concurring in part and dissenting in part.
I concur in reversing and remanding for further proceedings on appellants' claim that they did not receive notice of the trial. I believe, however, that the majority errs in refusing to review both the sufficiency of the amended complaint and the form of verdict on punitive damages, as well as in its treatment of appellants' objection that no order was entered setting the case for trial.
Appellants are correct in their contention that the default judgment must be reversed if founded upon a complaint insufficient to form a legal basis for the judgment. North American Accident Insurance Co. v. Moreland, 60 Fla. 153, 53 So. 635, 637 (1910); GAC Corp. v. Beach, 308 So.2d 550 (Fla. 2d DCA 1975). Beach, quoting from North American Accident Insurance Co., stated the applicable rule in 308 So.2d at 551-52:
A judgment by default properly entered against parties sui juris operates as an admission by the defendants of the truth of the definite and certain allegations and the fair inferences and conclusions of fact to be drawn from the allegations of the declaration. Conclusions of law, and facts not well pleaded, and forced inferences are not admitted by a default judgment. If the allegations and the fair inferences from the allegations state a cause of action in favor of the plaintiffs, the allegations as to the right of action are taken to be true. Whether the admitted allegations state a cause of action is for the court to determine. Russ v. Gilbert, 19 Fla. 54; Watson v. Seat, 8 Fla. 446; 6 Ency.Pl. & Pr. 117. See also, Lybass v. Town of Ft. Myers, 56 Fla. 817, 47 So. 346; Hale v. Yeager, 57 Fla. 442, 49 So. 544.
A judgment by default entitles the plaintiff to the relief for which a proper predicate has been laid in the declaration. See Ocala v. Anderson, 58 Fla. 415, 50 So. 572. If the allegations of the declaration do not form a legal basis for the judgment recovered, it will be reversed on appeal. See 6 Ency.Pl. & Pr. 118. (Emphasis added.)
Appellees explicitly agree with appellants on this proposition, citing Bay Products Corp. v. Winters, 341 So.2d 240 (Fla. 3d DCA 1976), and fully defend the merits of the amended complaint. These decisions clearly establish that the entry of a default judgment against a defendant admits as true only well-pled facts, not forced inferences and conclusions, and that only a default judgment supported by such well-pled facts should be affirmed on appeal.
Appellees do not contend that this court cannot review the sufficiency of the complaint because that objection was not raised in the court below. Yet it is on this ground alone that the majority declines to consider the sufficiency of the complaint. Neither the majority nor I, however, have found any authority which directly holds it necessary to attack the sufficiency of the complaint in the trial court as a prerequisite to review on appeal from a default judgment. I cannot agree with the majority that the law should or does impose such a requirement in this limited class of appeals. It is well established that the sufficiency of a complaint to support a default judgment may be attacked for the first time in a collateral proceeding to enjoin enforcement of that judgment without the defaulting *831 party having appeared before the court that entered the judgment. See, Roberts v. Seaboard Surety Co., 158 Fla. 686, 29 So.2d 743, 748 (1947); 33 Fla.Jur.2d, Judgments and Decrees, §§ 270, 319. Why should it not follow that the defendant can attack the sufficiency of the complaint in appellate proceedings to review the validity of that judgment even though he did not timely appear and defend in the trial court?
Palmer v. Thomas, 284 So.2d 709 (Fla. 1st DCA 1973), cited by the majority, does not hold otherwise. Palmer held that affirmative defenses not raised in the trial court after a default was entered would not be considered on appeal. This decision was eminently correct because the default, once entered, precluded the filing of affirmative defenses. Palmer does not address, however, the right to appellate review of the claimed insufficiency of the complaint, which is obviously not an affirmative defense. The insufficiency of the complaint inheres in the alleged cause of action. Since the entry of a default does not admit the sufficiency of the plaintiff's cause of action, but only well-pled facts, the court, upon application for entry of final judgment, is required to carefully scrutinize those allegations to determine that they are adequate and support the relief being granted by entry of judgment pursuant to the default, whether or not the defendant has appeared and questioned its sufficiency. It is for this reason that the clerk can enter the default as a ministerial matter, but only the trial court can enter a judgment pursuant to the default. See, 33 Fla. Jur., Judgments and Decrees, § 275.
Believing that the allegations in the amended complaint are insufficient to support the judgment entered against appellant Moore, I respectfully dissent from the majority's decision on this issue.
I likewise respectfully dissent from the majority's refusal to review the erroneous verdict which assessed punitive damages in a single sum against the several defendants as joint tort feasors. Appellants were not present at the damage trial so they obviously were not in position to object to the erroneous verdict submitted to the jury at that time. Appellants first raised this issue in their timely motion for new trial. The majority opinion, however, concludes that this motion did not timely raise this objection because even in default cases when the defendant is not present an objection must be made before the jury is instructed in order to preserve the issue for appellate review, citing Whitman v. Castlewood International Corp., 383 So.2d 618, 619-620 (Fla. 1980), and other cases. Because none of the cited cases involved a default trial where the complaining party was not present when the jury was instructed, and because appellants submitted this objection to the trial court in the first motion they made after the verdict, I do not believe those cases should govern our decision on this issue.
The verdict assessing a single sum for punitive damages against the several joint tort feasors is clearly erroneous as a matter of law. Lehman v. Spencer Ladd's, Inc., 182 So.2d 402, 403 (Fla. 1966); Standard Jury Instruction 6.12 (punitive damages). The Supreme Court in Lehman approved Judge John Wigginton's suggestion in his opinion for this court, Spencer Ladd's, Inc. v. Lehman, 167 So.2d 731 (Fla. 1st DCA 1964), that in cases where punitive damages are sought against two or more joint tort feasors, the court should use a special verdict which allows the jury to assess punitive damages individually in separate amounts against each of the several defendants found to be liable therefor. Despite the fact that differing causes of action were asserted against different defendants, the verdict form used in this case did not permit the jury to make any independent determination of punitive damages as to each defendant but, rather, required the jury to treat all of the defendants alike. For this reason, the punitive damages award should be reversed. Even if the majority's conclusion that appellants' objection was not timely raised in the motion for new trial is correct, an error of this magnitude should nevertheless be treated as fundamental error. See, Jefferson v. City of West Palm Beach, 233 So.2d 206 (Fla. 4th *832 DCA 1970); Security Mutual Casualty Co. v. Bleemer, 327 So.2d 885 (Fla. 3d DCA 1976); Vega v. Mahfuz, 367 So.2d 1107 (Fla. 3d DCA), cert. denied, 378 So.2d 346 (Fla. 1979); Cf., Sears Roebuck & Co. v. Jackson, 433 So.2d 1319 (Fla. 3d DCA 1983).
I agree with the majority that the failure to obtain a court order setting the case for trial on damages does not necessarily mandate reversal, but I disagree with their approach to dealing with that question. Rule 1.440, Florida Rules of Civil Procedure, is absolutely unambiguous in its requirement that the setting of trial shall be done by order of the court properly served on the defendants. That rule contains no authority for setting trial without prior notice to opposing counsel at least thirty days prior to the trial date. The rule does not sanction the setting of trial by an opposing party through mere service of a notice in fewer than thirty days. The opinion in Padgett v. First Federal Savings & Loan Assn. of Santa Rosa County, 378 So.2d 58 (Fla. 1st DCA 1979), should not be read as blanket authorization for departure from this fundamental requirement of the rule based upon explicit or tacit recognition of local custom and practice. Only the Supreme Court of Florida has the power to authorize trial courts to adopt and follow procedural rules that differ from the clear requirements of the civil rules promulgated by that court. Even though it was stated in Padgett, supra, that "we must accord a fairly wide latitude to the local courts in the handling of these matters," such statement is merely dicta. 378 So.2d at 66. The Padgett decision should be restricted to the facts of that case, which clearly supported affirmance under the harmless error rule because the record showed no actual prejudice to the appellant. In Davis v. Hagin, 330 So.2d 42 (Fla. 1st DCA 1976), cited in Padgett, supra, and in the majority opinion, the defendant actually received notice well in advance of trial and made no objection to the trial court concerning failure to comply with rule 1.440 until the day before trial. The court's affirmance was based on defendant's tardiness in objecting and bringing this known deficiency to the attention of the court.
The majority's conclusion, that "appellants would not in our opinion be able to demonstrate prejudice from the technical violation of Rule 1.440," is necessarily based on implied assumptions not properly shown in the record before the court below. Whether failure to follow the rule in this instance should be treated as harmless error cannot be determined on the record before us. Appellants' motion alleges that the circuit court of Franklin County "has previously held the voluntary giving of notice of trial by Plaintiff's counsel was not binding on Defendants absent an Order by the Court, pursuant to Rule 1.440, Fla.R. Civ.P. setting the matter for trial. (The Estate of Ward Fowler, Dec'd., Franklin Probate No. 79-29)." While the circuit court can take judicial notice of its files in that case, the record fails to reflect that an evidentiary hearing was held at which copies of the pertinent portions thereof were received and considered. The record is barren of any other evidence of local custom and practice in Franklin County that would support a departure from the Supreme Court's rule. Whether or not the appellants suffered prejudice from failure to follow that rule in this instance is a question of fact to be decided by the trial court upon an evidentiary hearing. For this reason, I dissent from that portion of the majority opinion and would remand for further proceedings, including an evidentiary hearing on the question of prejudice.
NOTES
[1] Fla.R.Civ.P. 1.440 has been amended several times, but since it was enacted as Rule 2.2 in 1954 it has included the requirement that the court, not the parties, set the case for trial. 30 Fla. Stat. Ann. 502 (1967).
[2] The holding in Heritage Casket rests on alternate grounds; the first being that the evidence did not show that the defendants received the notice at all. There is no indication of an express finding to the contrary by the trial judge in that case. Furthermore, there was no evidence that the defendant lived, or received mail, at the address where the notice was sent.
[3] See Davis v. Hagin, 330 So.2d 42 (Fla. 1st DCA 1976). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592609/ | 453 So.2d 819 (1984)
Evelyn R. FLACK, Petitioner,
v.
Bob GRAHAM and Gerald Lewis, Respondents.
No. 63919.
Supreme Court of Florida.
July 26, 1984.
*820 Rivers Buford, Jr. and Keith J. Kinderman, Tallahassee, for petitioner.
Jim Smith, Atty. Gen. and Walter M. Meginniss, Asst. Atty. Gen., Tallahassee, for respondents.
ADKINS, Justice.
Petitioner, Evelyn Flack, seeks a writ of mandamus to compel the respondents to disburse state funds sufficient to recompense her for back salary unpaid by the comptroller as a result of an election contest. We have jurisdiction. Art. V, § 3(b)(8), Fla. Const.
Petitioner was involved in a contest for re-election to the office of county judge for Wakulla County in 1978. The county canvassing board declared her opponent, J. Michael Carter, the winner. Petitioner then instituted a challenge to the validity of several absentee ballots. Approximately forty-six months after the original election petitioner ultimately prevailed in her litigation and was declared the election winner. Wakulla County Absentee Voter Intervenors v. Flack, 419 So.2d 1124 (Fla. 1st DCA 1982), review denied, 427 So.2d 738 (Fla. 1983). Her commission was issued on September 3, 1982, entitling her to serve "for a term of four years from the First Tuesday after the First Monday in January, A.D. 1979."
By petition for writ of mandamus, petitioner now seeks back pay (plus interest) representing the salary she would have received had she fully served her term of office. The record reflects that Carter served as de facto county judge during that period and received the salary appropriate to the office.
We determined that the petition demonstrated a preliminary basis for relief and we ordered the respondents to show cause why petitioner's request should not be granted. Respondents have filed their response denying petitioner's right to the requested compensation.
Our determination of this case involves two issues: 1) whether there is a source from which compensation for the petitioner can be made available and, 2) whether the petitioner has a legal right to such compensation.
The first issue is superficially guided by the constitutional prohibitions of article VII, section 1(c) and article V, section 14, Florida Constitution. Article VII, section 1(c) states that "[n]o money shall be drawn from the treasury except in pursuance of appropriation made by law." Article V, section 14, similarly states that the "judiciary shall have no power to fix appropriations." Inasmuch as the funds for the salary of the Wakulla County Judge were legislatively appropriated and paid, there are no funds remaining from statutorily fixed appropriations to pay the salary requested by petitioner.
This Court has, however, previously addressed the question of the source of the funds. In State ex rel. Williams v. Lee, 121 Fla. 815, 164 So. 536 (1935), we held that the constitutional proscription against appropriations from the treasury except by law, article IX, section 4, Florida Constitution (1885), now article VII, section 1(c), must be construed in conjunction with the constitutional requirement that salaries be duly paid. Art. XVI, § 3, Fla. Const. (1885). By reading these two provisions in pari materia, a constitutional appropriation was created requiring that salaries be paid "out of any available moneys in the state treasury in the general state funds." Williams, 121 Fla. 820, 164 So. at 538. Recognition of the constitutional appropriation provides a basis for judicial appropriations and satisfies the requirement that money drawn from the treasury be done so only pursuant to appropriation by law.
Although section 3 of article XVI was not adopted in the 1968 constitutional revision, it continues as a statute until altered or amended by statute or found inconsistent with the revision. Art. XII, § 10, Fla. Const. (1968). Respondents have not identified inconsistencies or alterations; *821 nor have we located any such inconsistencies or alterations. Therefore, article XVI, section 3 of the 1885 Constitution is presently in full force and effect as a statute.
The result is that Williams remains viable and, if petitioner is entitled to the back salary sought, a constitutional appropriation makes the desired funds available from the general treasury. We find further support for our holding on this issue in Wright v. MacVicar, 88 So.2d 541 (Fla. 1956); and In re Opinion of the Justices, 145 Fla. 375, 376, 199 So. 350, 351 (1940).
The second issue, whether petitioner has a legal right to the salary requested because she was the de jure officer, requires us to review two distinct lines of authority. It has been stated that a majority of jurisdictions hold that the payment of salary to a de facto officer is a valid defense to an action brought by a de jure officer where the de jure officer was not performing the duties of his or her position. Annot., 64 A.L.R.2d 1376 (1959). See Irwin v. Jefferson County, 228 Ala. 609, 154 So. 589 (1934); People ex rel. Hilger v. Myers, 114 Ill. App.2d 478, 252 N.E.2d 924 (1969); Hittell v. City of Chicago, 327 Ill. 443, 158 N.E. 683 (1927). The reasoning supporting the majority view includes the following: where the governmental entity has received only one service, it should pay only one person; that efficiency requires officers to be promptly paid for their services, and that the disbursing officer should be able to rely on the apparent authority of the de facto officer's title in paying the appropriated salary; that since the de jure officer has no property or contract right in his office, he or she should perform the required services prior to recovering a salary; and that public policy precludes payment of back salary to the de jure officer.
The minority view, which is gaining in acceptance, has various rationales stated for its support. First, as we have held in Hanchey v. State ex rel. Roberts, 52 So.2d 429, 432 (Fla. 1951), although the de facto officer receives his or her salary on the basis of services performed, an officer's salary is in actuality an incident to the office and therefore belongs to the person holding legal title. Second, the public good is not served when a public officer, legally entitled to office and a salary, does not receive the salary and it is better for the public treasury to ultimately respond to the de jure officer than to allow the de facto officer to suffer during his commission. Annot., 64 A.L.R.2d at 1390; see Board of County Commissioners v. Litton, 315 P.2d 239 (Okla. 1957); Reed v. Sloan, 25 Pa.Commw. 570, 360 A.2d 767 (1976) aff'd., 475 Pa. 570, 381 A.2d 421 (1977); LaBelle v. Hazard, 91 R.I. 42, 160 A.2d 723 (1960); State ex rel. Barham v. Graham, 161 Tenn. 557, 30 S.W.2d 274 (1930); State ex rel. Godby v. Hager, 154 W. Va. 606, 177 S.E.2d 556 (1970). In appropriate cases, double payment of salary is desirable to preclude the public authorities from approving intrusion with impunity upon a public office. See, e.g., § 111.05, Fla. Stat. (1981). In addition, the rule offered by respondents may stimulate irresponsible persons to cling to office without a scintilla of title, in order to receive a salary in derogation of the de jure officeholder's legal rights.
Finally, we note that the probability of a lengthy election challenge may induce challengers to forego litigation because their victory may be monetarily hollow. Although compensation may not be a major incentive to public officers, it is a factor which may preclude rightful holders of office from seeking to remove unlawful holders of office.
In State ex rel. Dresskell v. City of Miami, 153 Fla. 90, 92, 13 So.2d 707, 708 (1943), we recognized
the familiar rule of law pertaining to public officers which recognizes that if one is lawfully entitled to a public office his right to salary attaches to the office and may be recovered in full, irrespective of any service rendered and without regard to the fact that he may have earned money elsewhere in private employment.
(Emphasis supplied.) Petitioner was ultimately adjudicated the lawful holder of the *822 office of county judge for Wakulla County. Applying Dresskell literally, petitioner is entitled to the salary requested. However, respondents point out that the above-quoted statement was merely dictum and was not applied to that case. Moreover, they argue that double payment of the same salary is not an action approved or favored by this Court. Ball v. State ex rel. Harvey, 108 Fla. 163, 146 So. 830 (1933). We disagree insofar as public officers are concerned.
We find that the reasons stated in the minority position indicate the appropriate rule and that de jure officers should receive the emoluments of their office. See Gavagan v. Marshall, 160 Fla. 154, 33 So.2d 862 (1948); State ex rel. Williams v. Lee, 121 Fla. 815, 164 So. 536 (1935); State ex rel. Hatton v. Joughin, 103 Fla. 877, 138 So. 392 (1931). Ball is not to the contrary. That case involved a situation where the officer had not judicially established his right to the office for which he sought a salary. Here, petitioner established her right to office prior to seeking back pay. She should receive the salary requested.
We recognize that in some cases, either through bad faith, waiver and estoppel, or malfeasance, a de jure officer may be precluded from seeking backpay. But in the instant case, petitioner did not acquiesce to the unlawful election results and accordingly is not subject to the above equitable principles. Public policy would not be served by denying compensation.
The final issue we address is whether there should be an offset to the de jure officer's salary against income earned from the private practice of law inasmuch as article V, section 13 of the Florida Constitution requires judges to "devote full time to their judicial duties." This is a question of first impression in our Court.
We have reviewed the authorities from other jurisdictions and find that public officers as opposed to public employees are entitled to back pay without setoff of earnings from other sources. See, e.g., City of Mobile v. Mitchell, 294 Ala. 474, 318 So.2d 708 (1975); 4 McQuillin, Municipal Corporations § 12.186 (3d ed. 1968); accord, Dreskell. This exception for public officers is nearly unanimous. Annot., 150 A.L.R. 100, 103 (1940). The reason advanced for the rule is that:
[N]o contractual relationship exists between the governmental unit and a public official, and that the compensation, being incidental to the office which the official holds, is governed by the right to the office, and cannot be diminished by the application of the doctrine of mitigation of damages which is based on the existence of a contractual relationship.
Vega v. Borough of Burgettstown, 394 Pa. 406, 408, 147 A.2d 620, 622 (1958). See also Gentry v. Harrison, 194 Ark. 916, 110 S.W.2d 497 (1937); Fitzsimmons v. Brooklyn, 102 N.Y. 536, 7 N.E. 787 (1886); and Reising v. Portland, 57 Or. 295, 111 P. 377 (1910).
Because we agree that a salary is merely incidental to the office, we agree with the cited cases that a public officer in these situations should not have his or her salary reduced because of the doctrine of mitigation of damages.
We therefore conclude that the response to the order to show cause does not present a defense to petitioner's request. Because we believe the appropriate officials will comply with this decision, we withhold issuance of the writ of mandamus at this time.
It is so ordered.
OVERTON, ALDERMAN, McDONALD and EHRLICH, JJ., concur.
BOYD, C.J., concurs in part and dissents in part with an opinion.
BOYD, Chief Justice, concurring in part and dissenting in part.
When Judge Evelyn Flack became a candidate for the office of County Judge of Wakulla County she offered to serve for a term of four years for the salary fixed by law. Her election to the office created a contract of employment. Due to court decisions against her the office was unlawfully *823 filled by her opponent, Judge J. Michael Carter. He performed the judicial duties as a de facto public official and drew the salary. Neither of the judges acted in bad faith, nor did the voters, taxpayers, or other involved public officials. The controversy grew out of differing legal and judicial opinions relating to absentee ballots.
As stated in the majority opinion the various jurisdictions which have considered this issue have disagreed on whether an official who has won an elective office should be paid the full salary as an official when a de facto official has been improperly allowed to serve in the office and draw the salary.
In this case the contract of employment could not be performed because Judge Carter was officially declared the winner and was not finally ousted until about three and a half years later. Neither Judge Flack nor the taxpayers should suffer, nor should either be unjustly enriched due to circumstances which neither caused. It would be manifestly unfair for the taxpayers to be required to pay both Judge Carter and Judge Flack for the performance of duties of the office while only Judge Carter held the office under color of law. It would be equally unfair for Judge Flack not to be compensated by the government for the monetary damages she suffered from being denied the office which she had lawfully won.
Since governmental entities denied her the privilege of performing her contract for judicial services the matter should be treated as a breach of contract. She should receive the actual compensatory damages caused by the breach of contract.
The amount of damages awarded should be based upon the loss of professional income, if any, which Judge Flack incurred due to her not being able to serve in the office. Thus the salary she would have received had she served in the office should be given to her, reduced, however, by the amount she earned as a lawyer during the period when she was available to serve as county judge but was improperly excluded from doing so. If her earnings during that period exceeded the judicial salary, then, of course, she should recover no salary. She should also recover reimbursement for all court costs, reasonable attorneys' fees and other expenses incurred in her efforts to recover the office.
I therefore concur in the majority opinion ordering that Judge Flack be paid the back salary but dissent to that portion which denies the state the benefit of an offset of her earnings during the period when she was improperly denied the privilege of serving as County Judge. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592633/ | 453 So.2d 95 (1984)
Allen Leon FRAZIER, Appellant,
v.
STATE of Florida, Appellee.
No. 83-364.
District Court of Appeal of Florida, Fifth District.
June 21, 1984.
Rehearing Denied July 26, 1984.
*96 A. Thomas Mihok, Gary L. Summers and Manuel Socias of Dempsey & Slaughter, P.A., Orlando, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for appellee.
COBB, Judge.
The appellant, Allen Leon Frazier, was convicted after jury trial of possession of a firearm by a convicted felon. On appeal he raises one point which merits consideration and discussion: his contention that the trial court erred in not dismissing his court-appointed attorney, allegedly resulting in ineffective assistance of counsel. As a general rule, a claim of ineffective assistance of counsel cannot be raised for the first time on direct appeal. Williams v. State, 438 So.2d 781 (Fla. 1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1617, 80 L.Ed.2d 146 (1984). In the instant case, however, the trial court resolved the factual issue of ineffectiveness, thus allowing for review on this appeal. Williams; State v. Barber, 301 So.2d 7 (Fla. 1974); Pinder v. State, 421 So.2d 778 (Fla. 5th DCA 1982).
Prior to trial, Frazier moved the court to dismiss his appointed counsel, Attorney Sheaffer, and to appoint counsel of his choice. Clearly, he was not entitled to this alternative. See Johnson v. State, 427 So.2d 1103 (Fla. 3d DCA 1983); Mitchell v. State, 407 So.2d 1005 (Fla. 5th DCA 1981); Wilder v. State, 156 So.2d 395 (Fla. 1st DCA 1963). Frazier stated his feeling that his counsel was ineffective. The trial judge thereupon made a comprehensive inquiry of Frazier and his counsel in this regard, and correctly concluded that there was no showing of ineffective counsel. See Strickland v. Washington, ___ U.S. ___, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Knight v. State, 394 So.2d 997 (Fla. 1981). The trial court then denied the motion to dismiss and to appoint other counsel. In response to that denial, Frazier did not refuse to accept Attorney Sheaffer, as did the defendant in Mitchell, nor did Frazier ask to represent himself, as did the defendant in Ausby v. State, 358 So.2d 562 (Fla. 1st DCA 1978), cert. denied, 365 So.2d 715 (Fla. 1978).
Under these facts, we do not believe that the trial judge was obligated to do anything more than he did. It was held by the Florida Supreme Court in Raulerson v. State, 437 So.2d 1105 (Fla. 1983), that a defendant must clearly and unequivocally demand to represent himself. To like effect are Johnson v. State, 427 So.2d 1103 (Fla. 3d DCA 1983), and Cappetta v. State, 204 So.2d 913 (Fla. 4th DCA 1967), reversed on other grounds, 216 So.2d 749 (Fla. 1968). Relying upon the United States Supreme Court case of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Court of Appeals, in Brown v. Wainwright, 665 F.2d 607 (5th Cir.1982), concisely summarized this proposition:
While the right to counsel is in force until waived, the right of self-representation does not attach until asserted. In order for a defendant to represent himself, he must "knowingly and intelligently" forego counsel, and the request must be "clear and unequivocal." Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. See also United States v. Brown, 591 F.2d 307, 310 (5th Cir.), cert. denied, 442 U.S. 913, 99 S.Ct. 2831, 61 L.Ed.2d 280 (1979); United States v. Jones, 580 F.2d 785, 787-88 (5th Cir.1978); Chapman v. United States, supra, 553 F.2d 886 at 892 [(5th Cir.1977)].
* * * * * *
The important distinction in the manner in which the two rights come into play requires that a different waiver analysis be applied to the right of self-representation than to the right to counsel. Unlike the right to counsel, the right of self-representation can be waived by defendant's mere failure to assert it. If on arraignment an indigent defendant stands mute, neither requesting counsel nor asserting the right of self-representation, an attorney must be appointed. Even if defendant requests to represent himself, however, *97 the right may be waived through defendant's subsequent conduct indicating he is vacillating on the issue or has abandoned his request altogether. Chapman v. United States, supra, 553 F.2d 893 & n. 12.
* * * * * *
The right of self-representation, then, is waived if not asserted, while the right to counsel is not.
665 F.2d at 610-11.
AFFIRMED.
DAUKSCH and SHARP, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592676/ | 192 N.W.2d 820 (1971)
STATE of Minnesota, Respondent,
v.
Charles V. CARLSON, Appellant.
No. 43071.
Supreme Court of Minnesota.
December 10, 1971.
Charles V. Carlson, pro se.
Warren Spannaus, Atty. Gen., Paul J. Tschida, Sp. Asst. Atty. Gen., St. Paul, William B. Randall, Co. Atty., Steven C. DeCoster, Asst. County Atty., St. Paul, for respondent.
Heard before KNUTSON, C. J., and MURPHY, KELLY, and HACHEY, JJ.
*821 OPINION
RONALD E. HACHEY, Justice.[*]
Defendant appeals, pro se, after imposition of sentence following a conviction of burglary.
On August 19, 1966, defendant, represented by a public defender of Ramsey County, entered a plea of guilty to the crime of burglary. The matter was continued to September 15, 1966, and extended to September 19 for presentence investigation. Defendant failed to appear on either date, and a bench warrant was issued for his arrest. On October 1, 1970, after he was extradited from Florida State Prison, Raiford, Florida, he reappeared in District Court, Ramsey County, again represented by a member of the staff of the public defender. At that time, he moved to withdraw his plea of guilty and asked for a jury trial. His motion and request were denied, and defendant was sentenced to the custody of the commissioner of corrections according to law, said sentence to be served consecutively to the prior sentence imposed by the State of Florida and one which might be imposed by the United States in a pending criminal proceeding against defendant. Defendant was returned to the Florida prison with a hold placed upon him.
Defendant contends that his plea of guilty was improperly received in that it resulted from police coercion, that he was not adequately represented by counsel, and that the court erred in denying his motion to withdraw his plea of guilty.
1. From an examination of the record it clearly appears that a claim of police coercion is without foundation. In August, 1966, defendant voluntarily appeared at police headquarters to inform them of his part in a burglary committed on October 21, 1965. He was not even a suspect at that time. He voluntarily related his part in the crime, both to the police and to the court. During the period of presentence investigation, he again voluntarily described in further detail his part in the crime. These facts demonstrate that defendant's claim of coercion is without merit.
2. Defendant contends that his court-appointed counsel gave him inadequate representation. There is nothing to so indicate in the record. After consultation with his client, defendant's attorney apparently concluded that no defense existed. Defendant freely and voluntarily, in open court, entered his plea of guilty. The reception of the guilty plea by the court was, therefore, manifestly proper. A careful reading of the transcript of the arraignment indicates that defendant was well represented by counsel. His claim of inadequate representation is without merit. He has not met his burden of showing that the representation by counsel was inadequate so as to make the proceedings a sham or mockery of justice. State v. Waldron, 273 Minn. 57, 69, 139 N.W.2d 785, 794 (1966).
3. It is well settled that a motion to vacate a plea of guilty is addressed to the sound discretion of the trial court and that an exercise of that discretion will only be disturbed by this court in cases of clear abuse or to correct a manifest injustice. State v. Waldron, supra; State v. Warren, 278 Minn. 119, 153 N.W.2d 273 (1967). The denial of defendant's motion in this case does not constitute such an abuse of discretion.
Affirmed.
NOTES
[*] Acting as Justice of the Supreme Court by appointment pursuant to Minn.Const. art. 6, § 2, and Minn.St. 2.724, subd. 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590824/ | 14 So.3d 1183 (2009)
L. Scott FRAZIER, David R. Ager, Allison V. Ager, Sean M. Crosby, Donald Norris, Douglas Galanter, Patrick Sutton, Robert Arenth, Jessie Mauerer, Jonathan Debie, David W. Brouwer, Valery P. Brouwer, Elizabeth Wright, James E. Hoskins, Deborah A. Hoskins, Richard Lemon, Nellie Lemon, Kara Noble, Neville Anderson, Donald Dixon, Mickey Lee Dixon, Lockcosta, LLC, and Locrob Investments, LLC, Appellants,
v.
Andre DREYFUSS; The Salem Law Group, P.A.; Salem Saxon, P.A.; and Lydia Ardon, Appellees.
No. 4D08-1619.
District Court of Appeal of Florida, Fourth District.
June 17, 2009.
Kevin C. Kaplan and Jeffrey B. Crockett of Coffey Burlington, Miami, for appellant.
Jeffrey L. Hochman and Tamara M. Scrudders of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, for appellee Andre Dreyfuss.
CIKLIN, J.
The appellants, the plaintiffs below, appeal from an order awarding attorney's fees against them in favor of the appellee following the trial court's dismissal of their action for failure to arbitrate their claims. We affirm because the appellee was the prevailing party under the count alleging securities fraud.
L. Scott Frazier and others ("buyers") alleged in a third amended complaint that they bought thirteen vacation bungalows at a project known as Hermosa Paradise in Costa Rica. Appellee, Andre Dreyfuss (one of the original defendants below) was the president of Hermosa Paradise, the entity responsible for the development, promotion, marketing and advertising of the project ("seller"). The buyers believed they were purchasing a viable interest *1184 in Hermosa Paradise but later discovered that the subject property was public land allegedly owned by the Costa Rican government which, they assert, had little or no value. The buyers sued various individuals including the seller alleging, among various causes of action, civil theft, conspiracy, misrepresentation, and most pertinent, securities fraud. The seller responded by filing a motion to dismiss and to compel arbitration, arguing that the contract entered into between the parties contained a provision which mandated arbitration of disputes before the Costa Rican-American Chamber of Commerce in Costa Rica. The trial court entered an order which compelled arbitration and abated the action. Because the buyers took no apparent action to arbitrate their claims following the court's abatement order, the seller sought and obtained additional orders requiring the buyers to pursue arbitration. During a hearing regarding one of those orders, the buyers announced that they had elected not to pursue their claims in arbitration because of the expense associated with the retention of counsel in Costa Rica. Thereafter, the seller filed a motion to dismiss the third amended complaint. The buyers took no action to oppose the motion to dismiss and the trial court dismissed the pending lawsuit for failure to comply with court orders requiring arbitration. The buyers did not appeal the order of dismissal. Subsequently, the seller filed a motion seeking prevailing party attorney's fees pursuant to Chapter 517, Florida Statutes. The trial court awarded fees pursuant to section 517.211(6).[1]
The trial court also awarded appellate attorney's fees to the seller. Because the seller concedes error on this point, we write nothing further other than to remand the matter to the trial court so it may enter a further order consistent with this opinion.
After the award of trial level attorney's fees, the buyers filed a motion to vacate pursuant to rule 1.540, Fla. R. Civ. P., which the trial court denied.[2]
On appeal, the buyers assert that the seller was not the prevailing party for purposes of a fee award. They assert that they merely made a financial decision not to pursue arbitration in Costa Rica and, in essence, abandoned their claims before either party was determined to have prevailed. The seller asserts that he was entitled to fees because he prevailed when he obtained the dismissal.
We affirm the trial court's award of attorney's fees based on Alhambra Homeowners Ass'n v. Asad, 943 So.2d 316 (Fla. 4th DCA 2006). There the Asads painted their house without permission from their homeowners' association ("HOA"). The HOA filed a complaint for injunction and *1185 damages including the payment of a fine. The Asads moved for summary judgment on grounds that the HOA had not given a statutorily mandated notice to the Florida Department of Business Regulation before filing suit. Recognizing that the Asads were correct as to the notice condition precedent, the HOA filed a voluntary dismissal without prejudice. Ultimately, the HOA gave the required notice, refiled its suit and the parties mediated their dispute with the Asads repainting their house and paying the HOA-imposed fines. Nonetheless, the Asads moved for an award of attorney's fees as to the original voluntary dismissal filed by the HOA, arguing they were the prevailing party. The trial court agreed and awarded the Asads prevailing party attorney's fees which the HOA appealed. This court held that even though the HOA later refiled the same suit, the Asads were the prevailing party in the initial HOA-dismissed suit and thus entitled to fees.
Applying Alhambra, we agree that regardless of whether or not the buyers ever instituted arbitration proceedings in Costa Rica or otherwise decided not to pursue their claims, the seller prevailed in the action when the case was dismissed. Although the buyers assert that such an award is "unjust" based upon the allegations of the third amended complaint,[3] those allegations have never been subjected to any requirements of proof.
We have considered the other arguments raised by the buyers on appeal and find them to be without merit.
Affirmed in part; reversed in part.
GROSS, C.J. and WARNER, J., concur.
NOTES
[1] Section 517.211(6), Florida Statutes (2007) provides:
In any action brought under this section, including an appeal, the court shall award reasonable attorney's fees to the prevailing party unless the court finds that the award of such fees would be unjust.
[2] Rule 1.540(b), Fla. R. Civ. P., provides in pertinent part:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged ...
[3] Section 517.211(6), Fla. Stat. (2007) provides that the prevailing party is entitled to an award of attorney's fees unless such an award would be "unjust." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590764/ | 14 So. 3d 1016 (2009)
BLACK
v.
STATE.
No. 5D09-923.
District Court of Appeal of Florida, Fifth District.
August 4, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590754/ | 972 So. 2d 982 (2007)
Gary A. SIPLIN, Appellant,
v.
STATE of Florida, Appellee.
No. 5D06-4071.
District Court of Appeal of Florida, Fifth District.
December 28, 2007.
Rehearing Denied January 31, 2008.
*984 Bruce S. Rogow and Cynthia E. Gunther, of Bruce S. Rogow, P.A., Fort Lauderdale, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.
LAWSON, J.
Gary Anthony Siplin appeals his convictions for grand theft, in violation of section 812.014(2)(c)(2), Florida Statutes (a third degree felony), and for using the services of a state employee during working hours in furtherance of a political campaign, in violation of section 106.15(3), Florida Statutes (a first degree misdemeanor). For the reasons explained below, we reverse both convictions and remand with directions that Mr. Siplin be acquitted on the felony charge. On remand, the State[1] may retry Mr. Siplin on the misdemeanor charge, consistent with this opinion.
Grand Theft Conviction
In count 1 of its information, the State charged Mr. Siplin with grand theft for knowingly depriving the state of Florida of the services of its employee, Naomi Cooper, between July 31 and November 1, 2004. The theory of the case was that the state paid Ms. Cooper about $3,000 per month for the months of August, September and October 2004, to work full-time as Mr. Siplin's legislative aide, while she was in fact working full-time on Mr. Siplin's campaign for re-election as a state senator. Ms. Cooper testified for the State that both she and Mr. Siplin planned for her to work full-time on his campaign, and also knew that she could not do so while being paid to work as his legislative aide.
According to Ms. Cooper, she had contracted with the state Democratic party to *985 work though November 2, 2004, on Mr. Siplin's campaign, for which she was to be fully compensated by the Democratic party. The Senate's written policies allowed Senate employees to take a leave of absence to work on political campaigns, and expressly allowed leave with pay, for this purpose, so long as the employee was "on authorized annual leave [using accrued vacation time]." It was undisputed at trial that Mr. Siplin instructed Ms. Cooper to do whatever was necessary to arrange her required leave of absence from the state, so that she could legally run his campaign.
At that time, the Senate did not collect time sheets or any other record of time actually worked from its employees. Instead, each Senate office was required to keep track of time worked. If an employee took time off, the senator, or his or her designee, was required to report the time not worked to the legislature's payroll office, including an explanation of whether the employee was to be paid from accrued annual leave (vacation time), compensatory time,[2] or sick leave, or was simply taking leave without pay. This was normally done by computer entry, and Ms. Cooper was Mr. Siplin's designee for dealing with payroll issues for his office.
According to Ms. Cooper's trial testimony, she believed that she had fully complied with Senate policies by: (1) sending in a letter requesting paid annual leave from. June 1, 2004 until July 31, 2004 (which accounted for most of her accrued vacation time); and (2) sending in a copy of her contract with the state Democratic party along with a form entitled "Permission for Outside Employment," indicating that she would be working as a consultant on Mr. Siplin's re-election campaign. The contract period ran from May 18 to November 2, and these dates are clearly noted on the face of the one-page contract. In response, Ms. Cooper received a letter from the Senate confirming that: (1) her paid leave was approved for the period from June 1 to July 31; and (2) that her outside employment had also been approved. Ms. Cooper testified that she understood this letter to mean that she had been approved for outside work for the entire time covered by the contract submitted with the form.
There are two problems with Ms. Cooper's testimony. First, although the contract itself indicates that Ms. Cooper would be working on Mr. Siplin's campaign until November 2, the form she submitted (and had Mr. Siplin sign) only requested approval for outside employment from June 1 to July 31. Second, Ms. Cooper continued to receive her full state salary for the entire period of time that she was working on the campaign, even though she only arranged for a paid leave through July 31. Ms. Cooper was, of course, aware of this, because the money was automatically deposited into her account each month, and the monthly pay summaries were mailed to her at her residence. Ms. Cooper testified that when she continued to receive a state salary check after July 31, she thought she was being paid for accrued, compensatory time and/or sick leave. However, she never mentioned that she was still getting paid by the state to Mr. Siplin, or anyone else in his Senate office. Significantly, the State did not present testimony from any witness indicating that Mr. Siplin knew Ms. Cooper continued to receive her state salary while working on his re-election campaign.[3]
*986 Instead, the State argues that Mr. Siplin's, knowledge should be inferred from the "Permission For Outside Employment" form that he signed, since it only listed the dates of Ms. Cooper's paid leave, and his presumed understanding of the Senate's practice of automatically paying an employee unless a senator's office reported the employee's absence from work. The problem with this theory is that the State's own witnesses testified without any contradiction that: (1) Ms. Cooper regularly acted as Mr. Siplin's designee for purposes of reporting time away from work; and (2) Mr. Siplin instructed Ms. Cooper to arrange for her time off so that she could legally work for the campaign. Assuming that Mr. Siplin actually studied the outside employment form when it was presented for his signature (so that he recognized the discrepancy between the dates in the form and the dates of Ms. Cooper's planned absence), it is just as reasonable to infer that Mr. Siplin believed the form only needed to encompass the time covered by Ms. Cooper's paid leave as it would be to infer that he thereby knew that Ms. Cooper would be paid by the state from August 1 to October 31.[4] Because Ms. Cooper herself normally would have reported her time away, it is also equally reasonable to infer from these facts that Mr. Siplin assumed that Ms. Cooper had arranged for her unpaid leave by computer entry, consistent with their normal office practice and consistent with his express instructions to her.
Although a jury is normally free to "draw or refuse to draw inferences from the evidence presented," Ford v. State, 251 So. 2d 562, 563 (Fla. 3d DCA 1971), a special standard applies when the state attempts to secure a conviction based solely on circumstantial evidence: "Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence." McArthur v. State, 351 So. 2d 972, 976 (Fla.1977) (citations omitted). This standard is not met here because the State's evidence does not suggest guilt to the exclusion of all other reasonable inferences. See also, Walker v. State, 957 So. 2d 560, 577 (Fla.2007) (recognizing that in circumstantial evidence cases a judgment of acquittal is appropriate if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt).
Of course, a strong case could be made that Mr. Siplin should have carefully studied the form that he signed, noted the potential discrepancy, and followed through with the payroll office himself, to make sure that the matter delegated to Ms. Cooper was handled correctlyor should have had some procedure in place to audit an employee who he trusted to handle her own payroll submissions. However, a criminal conviction for theft cannot stand based upon negligence in handling office paperwork or procedures.
*987 "Under Florida law, a theft requires proof of taking . . . with the intent to steal." Bartlett v. State, 765 So. 2d 799, 800 (Fla. 1st DCA 2000). And, "where it clearly appears that the taking was perfectly consistent with honest conduct, although the party charged with the crime may have been mistaken, he cannot be convicted of larceny." Id. (quoting Cooper v. State, 82 Fla. 365, 90 So. 375 (1921)), Because the State's evidence was insufficient to prove beyond a reasonable doubt that Mr. Siplin even knew that Ms. Cooper was receiving a state paycheck after July 31, while working on his campaign, the State clearly cannot show that he intended to steal from the state.
Mr. Siplin properly challenged the sufficiency of the State's evidence on count 1 both by pretrial motion and through a timely motion for judgment of acquittal. The issue was therefore preserved for appellate review, and reversal of the conviction is required. Bartlett, 765 So.2d at 800; Walker, 957 So.2d at 577. Because it would violate double jeopardy principles to allow the State to try Mr. Siplin a second time on this charge when its evidence was insufficient to sustain a conviction at the first trial, see Tibbs v. State, 397 So. 2d 1120 (Fla.1981), affirmed, 457 U.S. 31, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982), we remand with directions that the trial court enter a judgment of acquittal as to this charge. Mr. Siplin cannot be re-tried on count 1. Id.
Misdemeanor Conviction
In count 2 of its information, the State charged Mr. Siplin with violating section 106.15(3), Florida Statutes (2004), by using the services of two state employees, Sarah Caraballo and Jose Bosque, during work hours, in furtherance of his candidacy for public office. Section 106.15(3) reads, "A candidate may not, in the furtherance of his or tier candidacy for nomination or election to public office in any election, use the services of any state, county, municipal, or district officer or employee during working hours." A violation of this statute constitutes a first degree misdemeanor.
Before trial, Mr. Siplin filed a motion to dismiss this count, arguing that section 106.15(3) was unconstitutionally vague, overbroad and violative of substantive due process. This motion was denied, and. Mr. Siplin makes these same arguments on appeal. At the outset, we note that in contrast to count 1, the State's evidence on this count was sufficient to sustain a verdict of guilt. Both Mr. Bosque and Ms. Caraballo were employed by the state of Florida, working in Mr. Siplin's Senate office during the 2004 campaign season. Although Mr. Bosque testified that he did no political campaign work for Mr. Siplin on state time,[5] Ms. Caraballo testified that she did. According to Ms. Caraballo, Mr. Siplin directed her to work on political campaign ads, answer campaign phone calls, and help with voter registration and absentee ballots, for the campaign, all during *988 state office hours. She testified that she confronted Mr. Siplin about this, explaining that she was not supposed to work on his political campaign during her state office hours, and he told "not to get caught"but that she needed to help with the campaign because she would not have a job unless he got re-elected. Obviously, Ms. Caraballo's testimony would be sufficient to support a guilty verdict on the misdemeanor charge, but for Mr. Siplin's legal challenge to the statute itself.
As previously noted, Mr. Siplin challenges section 106.15(3) as vague, over-broad and violative of due process. We find that Mr. Siplin lacks standing to raise his vagueness challenge, and will briefly address this issue first. "The standard for testing vagueness under Florida law is whether the statute gives a person of ordinary intelligence fair notice of what constitutes forbidden conduct." Brown v. State, 629 So. 2d 841, 842 (Fla.1994) (citations omitted). "A statute is not void for vagueness if the language "`conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.'" Id.
Mr. Siplin argues that the statute is unconstitutionally vague because the terms "in furtherance of," "services," and "working hours," are imprecise and fail to adequately warn of what conduct is proscribed. Although these terms appear relatively clear, we must determine whether Mr. Siplin has standing to assert a vagueness challenge before applying, the vagueness test. See, e.g., J.L.S. v. State, 947 So. 2d 641, 646 (Fla. 3d DCA 2007). The general rule is that a defendant cannot complain of a statute's "vagueness as applied to the hypothetical conduct of others" when "the record demonstrates that [he or she] engaged in some conduct clearly proscribed by the plain and ordinary meaning" of the statute. Id. (quoting Sieniarecki v. State, 756 So. 2d 68, 75 (Fla.2000)). Here, Mr. Siplin questions whether picking up a candidate's suit at the dry cleaners or driving a candidate to a barber would be a "service" that could be viewed as undertaken "in furtherance of a candidacy for public office. However, the law does not allow Mr. Siplin to challenge the statute as vague based upon these hypothetical scenarios given the State's evidence in this case that Mr. Siplin ordered Ms. Caraballo to answer campaign phones, work on campaign ads, and handle other tasks unquestionably central to the operation of his political campaign during her state working hours. Id. Accordingly, we find that Mr. Siplin lacks standing to raise a vagueness challenge. Id.
Mr. Siplin's overbreadth and due process challenges both relate to the fact that section 106.15(3) does not expressly contain a guilty knowledge or mens rea requirement. Applied literally, the statute would criminally punish a candidate whenever a state employee worked on his or her campaign on state time, even without the candidate's knowledge or approval.[6] For example, assume a state employee volunteers to stand on a street *989 corner during his state work hours (and without taking time off), to hold a sign in a large group of supporters, with a candidate on election day. Without a mens rea element, the candidate whose name appears on the sign could be prosecuted for the state employee's misdeed, even though the candidate did not know the volunteer personally; did not solicit the help; and, had no idea that the person joining him to spread his campaign message was even a state employee. If applied in this fashion, we agree with Mr. Siplin that this statute would be unconstitutional on both overbreadth[7] and substantive due process[8] grounds.
However, criminal statutes are generally read to include a mens rea element, even when not expressly included in the statute. E.g., State v. Giorgetti, 868 So. 2d 512, 515-516 (Fla.2004); see also, State v. Oxx, 417 So. 2d 287 (Fla. 5th DCA 1982); Deehl v. Knox, 414 So. 2d 1089 (Fla. 3d DCA 1982); but see, Suit v. State, 906 So. 2d 1013, 1022 (Fla.2005) (recognizing this rule but concluded that the statute in that case was "incapable of a narrower construction because there is no logical way to read a specific intent element into the statute as it is currently written."). As explained in Giorgetti, there are two reasons for this rule. First, because "guilty knowledge or mens rea was a necessary element in the proof of every crime" at common law, it is presumed that the legislature also intends to include a guilty knowledge element in its criminal statutes, absent an express statement to the contrary. 868 So.2d at 515-16. Second, criminal statutes that fail to include a mens rea element usually raise due process concerns, and courts are "obligated to construe statutes in a manner that avoids . . . [holding a statute] unconstitutional." Id. at 518.
Given this precedent, we believe that we must read section 106.15(3) as containing a mens rea requirement.[9] Although this *990 reading of the statute resolves Mr. Siplin's constitutional challenges to section 106.15(3), it does not cure the fact that the jury in Mr. Siplin's case was instructed that they could convict him with no mens rea element. Mr. Siplin addressed this issue at trial, and requested that the jury instructions include a mens rea element. Although Ms. Caraballo testified that Mr. Siplin personally pressured her to perform campaign work during state office hours (which, of course, constitutes direct evidence of mens rea), her testimony conflicted with other evidence. For example, Mr. Bosque testified that he never witnessed Mr. Siplin pressuring any employee to work on the political campaign, but did see Ms. Caraballo using work hours for personal matters unrelated to the campaign. He also testified to facts from which a jury could conclude that Ms. Caraballo held a personal bias against Mr. Siplin. Mr. Bosque testified that while Ms. Caraballo worked as Mr. Siplin's legislative aide she talked negatively "all the time" about Mr. Siplin, his "opinions on community matters," "how he ran his office," "how he ran his personal life," and his "politics." Ms. Cooper also testified that she never saw Mr. Siplin ask any Senate employee to "do campaign work during working hours," and that the "office culture and policy" was that political campaign work "should not be done" during state work hours. Ms. Cooper also testified that she made sure that there was a complete separation between Mr. Siplin's campaign office, which she was running, and his legislative office. In addition to the legal requirement for separation, Ms. Cooper testified that she did not trust Ms. Caraballo with any campaign information because Ms. Caraballo belonged to a different political party.
Because of the evidence conflicting with Ms. Caraballo's account, and impeaching her credibility based upon personal bias or prejudice, we cannot find that the failure to include a mens rea instruction on count 2, as requested by Mr. Siplin at constituted harmless error. See, e.g., Cox v. State, 966 So. 2d 337, 347 (Fla. 2007) ("The harmless error test . . . requires the State "as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.") (quoting State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla.1986)). Accordingly, even though we are applying a limiting construction to alleviate the potential due process and overbreadth infirmities in the statute, Mr. Siplin's conviction must be reversed and remanded so that he can have the case tried before a jury properly instructed on the statute, with a mens rea requirement, should the State elect to prosecute the misdemeanor on remand. If the State elects not to proceed to trial on this charge again, it can simply nolle pros count 2. If it elects to go forward on the charge, the matter should be transferred to county court, for proceedings consistent with this opinion.
REVERSED AND REMANDED.
ORFINGER and MONACO, JJ., concur.
NOTES
[1] We capitalize "State" when referring to the State of Florida acting in its prosecutorial role, as a party in this case.
[2] When a Senate employee was required to work in excess of forty hours in any given week, the overtime hours were banked as "compensatory time." Accrued compensatory time could then be used, like accrued vacation time, to secure pay for time away from work.
[3] Although the Senate's routine practice had been to send monthly pay summaries to each local Senate office for distribution to employees, this practice was suspended (at least for Mr. Siplin's office), in response to the disruption caused by the 2004 hurricane season. Mr. Siplin's local Senate office was rendered uninhabitable as a result of storm damage, and he had to relocate the office to temporary quarters. Several State witnesses testified that because Ms. Cooper's state pay summaries were sent to her home during the entire time she was working on Mr. Sipfin's campaign, Mr. Siplin's office would not have received any documentation that would have put him on notice that Ms. Cooper was being paid her state salary for the months of August, September and October of 2004.
[4] Because Siplin did not testify during the trial, there is no direct evidence of what he knew or believed other than the somewhat confusing Senate document he signed.
[5] Mr. Bosque testified that he was hired onto Mr. Siplin's Senate staff shortly before Hurricane Charley struck Central Florida in August of 2004. Charley was soon followed by Hurricanes Frances and. Jeanne. Mr. Bosque explained that his primary role in the office quickly became community outreach, or a "campaign" to connect citizens affected by the storms with needed services. Although Mr. Bosque testified to his joint efforts with Mr. Siplin, during work hours, on the "campaign," he clarified that he was referring to this informational campaign, and not to Mr. Siplin's political campaign. Mr. Bosque testified that he never saw Mr. Siplin pressure anyone on his Senate staff to work on the political campaignbut that the pressure was simply to help the community in the wake of the storms.
[6] Although the State presented sufficient evidence from which a jury could conclude that Mr. Siplin knew of Ms. Caraballo's campaign activities, on his behalf and during work hours, the type of standing requirement applicable to Mr. Siplin's vagueness challenge does not apply to his overbreadth or due process claims. An overbreadth challenge based upon infringement of First Amendment rights may be raised "even by one who does not show that his own conduct is innocent and not subject to being regulated by a narrowly drawn statute." State v. Ashcraft, 378 So. 2d 284, 285 (Fla.1979). In other words, a litigant need not show that his conduct is protected by the First Amendment, but rather, that enforcement of the statute may cause "others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973). This relaxed standing requirement is allowed for First Amendment overbreadth challenges because statutes that restrict the exercise of First Amendment rights may have a chilling effect on such rights and must be "narrowly tailored" to address compelling government interests. Id. at 611-12, 93 S. Ct. 2908 (1973). Additionally, the State has not raised a standing challenge to Siplin's substantive due process claim, and we are not aware of such a requirement in this context.
[7] Overbreadth "refers to a challenge to a statute on the constitutional ground that it achieves its governmental purpose, to control or prevent activities properly subject to regulation by means that sweep too broadly into an area of constitutionally protected freedom." State v. Gray, 435 So. 2d 816 (Fla. 1983) (citing Broadrick, 413 U.S. 601, 93 S. Ct. 2908, 37 L. Ed. 2d 830). Here, the State obviously has a legitimate interest in guarding state funds by restricting its employees from engaging in personal activities on state time. However, when judged in relation to the statute's legitimate purpose, we conclude that the lack of a mens rea requirement in the statute would result in a real and substantial infringement of First Amendment rights by subjecting candidates who unwittingly violated the statute (while simply running a campaign in the legitimate exercise of First Amendment rights) to criminal prosecution.
[8] The right of substantive due process arising out of the Fourteenth Amendment to the United States Constitution and Article 1, Section 9 of the Florida Constitution prevents the government from engaging in conduct that "shocks the conscience" or interferes with rights "implicit in the concept of ordered liberty." Hudson v. State, 825 So. 2d 460, 465 (Fla. 1st DCA 2002) (quoting United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987)). Generally, it violates substantive due process to criminalize purely innocent conduct. See, e.g., Giorgetti, 868 So. 2d 512 (Fla.2004).
[9] This can easily be accomplished by simply inserting the word "knowingly" into the statute before the word "use." Thus, the statute would read as follows: "A candidate may not, in the furtherance of his or her candidacy for nomination or election to public office in any election, knowingly use the services of any state, county, municipal, or district officer or employee during working hours." (emphasis added). This construction protects innocent activity, and thereby saves the statute. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590835/ | 14 So. 3d 1276 (2009)
Luis C. RUIZ-ALEGRIA, Appellant,
v.
STATE of Florida, Appellee.
No. 2D07-5612.
District Court of Appeal of Florida, Second District.
July 8, 2009.
James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
*1277 Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.
ALTENBERND, Judge.
Luis C. Ruiz-Alegria appeals his convictions for resisting an officer with violence, resisting an officer without violence, and driving without a valid driver's license. We conclude that principles of double jeopardy prevent the dual convictions for resisting an officer under the facts in this case. Accordingly, we reverse the misdemeanor conviction and sentence for resisting an officer without violence. This reversal does not affect Mr. Ruiz-Alegria's sentences for the other two convictions.
In February 2007, a Hillsborough County deputy sheriff observed Mr. Ruiz-Alegria commit a traffic violation in his pickup truck. The deputy ran a check of the truck's license plate and found an outstanding warrant for Mr. Ruiz-Alegria's arrest. The deputy stopped the truck, but Mr. Ruiz-Alegria and his passenger fled on foot. The deputy called for assistance. Three additional deputiesdeputies Woods, Goff, and Catlinsoon arrived at the scene. These deputies collectively chased Mr. Ruiz-Alegria into a stand of trees. He refused their commands to come out and physically resisted their efforts to arrest him.
For this conduct, the State charged Mr. Ruiz-Alegria with one count of resisting arrest with violence and one count of resisting arrest without violence, identifying as victims deputies "Woods or Goff or Catlin," in each count. The information did not identify the deputy who initiated the traffic stop or make any allegation that Mr. Ruiz-Alegria resisted or eluded that officer. After a bench trial, the trial court found Mr. Ruiz-Alegria guilty as charged. For the misdemeanor resisting offense, he received a sentence of time served that was concurrent with a longer sentence for resisting with violence and a sentence for an unrelated conviction for child abuse. The .2 points on the scoresheet for the misdemeanor clearly did not affect his sentences for the other offenses.
The only issue identified on appeal is whether the convictions for resisting without violence and with violence in this context violated double jeopardy. In a very similar case, this court held that a defendant's conduct that begins as resisting without violence and evolves into resisting with violence does not permit two convictions so long as the conduct occurs in a single criminal episode. See Williams v. State, 959 So. 2d 790 (Fla. 2d DCA 2007). Although it is likely that the State in this case could have charged a separate episode involving the officer who stopped Mr. Ruiz-Alegria, and may even have established separate offenses if it had not alleged the three deputies as alternative victims in this case, under the allegations in the information and the proof at trial, these two offenses arose within a single criminal episode and can support only one conviction.
While this case was pending on appeal, the Florida Supreme Court decided Valdes v. State, 3 So. 3d 1067 (Fla.2009). We allowed the parties to supplement their briefing as a result. The State responded that, even in light of Valdes, the outcome of this case would not change unless we were to find a temporal break between Mr. Ruiz-Alegria's offenses, recede from Williams, or determine that the offenses do not fall under an exception provided under section 775.021(4)(b), Florida Statutes (2006). Having found no occasion to apply Valdes to this case or to recede from Williams, we reverse the misdemeanor conviction and sentence for resisting an officer without violence, but affirm in all other respects.
*1278 Affirmed in part, reversed in part, and remanded.
WHATLEY and KELLY, JJ., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590802/ | 268 Neb. 660
STATE OF NEBRASKA, APPELLEE,
v.
DANIEL J. LOSINGER, APPELLANT.
No. S-03-1304.
Supreme Court of Nebraska.
Filed September 24, 2004.
R. Bradley Dawson, of Dawson & Piccolo, and Richard A. Birch, of Nielsen & Birch, for appellant.
Jon Bruning, Attorney General, Susan J. Gustafson, and Erin E. Leuenberger, Senior Certified Law Student, for appellee.
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
McCORMACK, J.
NATURE OF CASE
In this appeal, Daniel J. Losinger contends that the trial court abused its discretion by imposing excessive sentences. The court sentenced Losinger to serve 50 years' to life imprisonment for murder in the second degree and 10 to 20 years' imprisonment for use of a deadly weapon to commit a felony in connection with the 2001 murder of Vicki Soto. The sentences were to be served consecutively.
BACKGROUND
On December 2, 2001, Losinger visited his girl friend's sister, who resided above the basement apartment where Soto and her husband lived. That same night, Soto's husband discovered her body lying in a pool of blood in their apartment. Soto was 8 1/2 months pregnant at the time. According to North Platte police reports, Soto was attacked while apparently eating dinner and coloring pictures. It appears that a struggle ensued between Soto and Losinger, as she sustained a number of defensive wounds on her fingers, some of which were deep enough that the bones could be seen. At some point, Losinger cut her throat at least three times with a sharp instrument, which was approximately 8 to 12 inches in length. These cuts severed her carotid artery and ultimately caused her death, as well as the death of her fetus. After Soto had bled out on her living room floor, Losinger positioned her fingers so that the middle finger of each hand was extended from the other fingers. In addition, after Soto had died, Losinger amputated her legs from the knees down, cutting her left leg through the bone under the kneecap and severing the right leg by cutting in between the two ends of the joint of the leg. When emergency personnel and police arrived, they discovered that the amputated portions of Soto's legs were missing. The missing portions of her legs were eventually discovered 2 days later in a cardboard box which was concealed in a cement storm sewer pipe near the South Platte River.
Losinger is a 52-year-old high school dropout who suffers from a learning disability, has an IQ estimated to be in the 70's, and has a history of alcohol and substance abuse. Losinger claims that he completed his education through only the 11th grade because he was unwilling to fulfill a physical education requirement. In addition to his learning disability, Losinger has a history of substance and alcohol abuse. He claims to have consumed his first beer at the age of 7 and began to consume alcohol on a regular basis by the age of 14. Losinger also used marijuana, which he has smoked as often as daily. Since moving to Nebraska, Losinger's use of marijuana has been only occasional because of its cost.
Prior to relocating to Nebraska in 1998, Losinger accumulated a criminal record which dates back to 1972. Losinger had been imprisoned four times as an adult prior to his current incarceration. He had also been placed on 18 months' probation and or-dered to complete anger management control counseling due to a disorderly conduct charge.
Losinger was initially charged with murder in the first degree for the death of Soto and use of a deadly weapon to commit a felony, to which he pled not guilty. Subsequently, Losinger en-tered into a plea agreement whereby he plead no contest to murder in the second degree and use of a deadly weapon to commit a felony. Upon his plea, the trial court sentenced Losinger to serve 50 years' to life imprisonment for murder in the second degree and 10 to 20 years' imprisonment for use of a deadly weapon to commit a felony. The sentences were ordered to run consecutively, and credit was given for 692 days served. Losinger timely appealed his sentences on the ground that the trial court abused its discretion by imposing excessive sentences in light of the facts and Losinger's background.
ASSIGNMENT OF ERROR
Losinger assigns on appeal two errors which can be consolidated into one. Losinger contends, restated, that the trial court abused its discretion in sentencing Losinger by imposing excessive sentences.
STANDARD OF REVIEW
[1,2] A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court. State v. Weaver, 267 Neb. 826, 677 N.W.2d 502 (2004); State v. Faber, 264 Neb. 198, 647 N.W.2d 67 (2002). An abuse of discretion occurs when a sentencing court's reasons or rulings are clearly untenable and unfairly deprive the litigant of a substantial right and a just result. State v. Hill, 255 Neb. 173, 583 N.W.2d 20 (1998). See State v. McPherson, 266 Neb. 715, 668 N.W.2d 488 (2003).
ANALYSIS
As his sole assignment of error, which has been consolidated and restated, Losinger argues that the trial court abused its discretion when it sentenced him to 50 years' to life imprisonment for the second degree murder of Soto and 10 to 20 years' imprisonment for the use of a deadly weapon to commit a felony. The second degree murder charge is a Class IB felony punishable by 20 years' to life imprisonment. Neb. Rev. Stat. §§ 28-105 (Cum. Supp. 2002) and 28-304 (Reissue 1995). Use of a deadly weapon to commit a felony is a Class III felony punishable by 1 to 25 years' imprisonment, a $25,000 fine, or both. § 28-105 and Neb. Rev. Stat. § 28-1205(2)(a) (Reissue 1995).
[3] In considering a sentence to be imposed, the sentencing court is not limited in its discretion to any mathematically ap-plied set of factors. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life. State v. Timmens, 263 Neb. 622, 641 N.W.2d 383 (2002).
[4] Factors a judge should consider in imposing a sentence include the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or law-abiding conduct, motivation for the of-fense, nature of the offense, and the amount of violence involved in the commission of the crime. State v. Weaver, supra; State v. Hubbard, 267 Neb. 316, 673 N.W.2d 567 (2004); State v. Timmens, supra.
[5] Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. State v. Roeder, 262 Neb. 951, 636 N.W.2d 870 (2001). An abuse of discretion takes place where the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result. Id.
In his brief on appeal, Losinger argues that several of the following factors establish that the sentences imposed by the trial court were excessive: his age, his failure to complete high school, his learning disability, a low IQ, a minimal criminal history since moving to Nebraska in 1998 (though a substantial one prior to his relocation), a dysfunctional homelife as a child, a lack of in-volvement with violence, and the fact that he was under the influence of alcohol when he murdered Soto.
In our recent decision in State v. Weaver, 267 Neb. 826, 677 N.W.2d 502 (2004), the defendant was convicted of second de-gree murder for the death of his grandmother, who died as a result of asphyxiation by strangulation. The defendant was sentenced to a term of 60 years to life in prison. In support of his argument on excessive sentence, the defendant pointed to his negligible criminal record, his youth, and his troubled upbringing. His parents had problems with alcohol abuse, he was verbally abused by his mother, and the woman who became somewhat of a stepmother to him committed suicide when he was 13 years old. We noted that the trial court was aware of these circumstances, as evidenced by the presentence investigation report, but that the court found, in light of the totality of the circumstances, that they did not justify a finding of an excessive sentence. We affirmed the defendant's conviction and sentence.
In the instant case, Losinger attacked a woman who was 8 1/2 months pregnant. She attempted to fight him off, as was evidenced by the deep cuts down to the bone on her fingers. She was unsuccessful, and she, as well as her unborn child, were killed when Losinger cut her throat three times. After killing Soto, Losinger positioned her fingers so that only the middle finger of each hand extended from the other fingers and severed each leg from her body at the knee. He then concealed the lower portions of her legs in a storm sewer pipe, where they were not discovered for another 2 days.
CONCLUSION
Based on the record in this case, we conclude that the trial court did not abuse its discretion in imposing the sentences.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590841/ | 972 So. 2d 1050 (2008)
Adolfo RODRIGUEZ, Appellant,
v.
Roberto J. LAGOMASINO, Appellee.
No. 3D06-1956.
District Court of Appeal of Florida, Third District.
January 23, 2008.
Robbins & Reynolds and Robert A. Robbins, Miami, for appellant.
Bernstein, Chackman & Liss and Neil Rose, Hollywood, for appellee.
Before COPE and GREEN, JJ., and SCHWARTZ, Senior Judge.
PER CURIAM.
Plaintiff Adolfo Rodriguez appeals a judgment entered on, a defense verdict in an automobile accident case. The plaintiff maintains that the trial court erred by failing to strike two jurors for cause. We agree that both jurors should have been stricken for cause and reverse for a new trial.
The plaintiff was involved in two auto accidents. The first was a minor car accident on May 1, 1999. The plaintiff saw a doctor for treatment two days later for complaints of neck and back pain. After leaving that appointment, the plaintiff was struck by a vehicle driven by defendant. As a result of this second accident, the plaintiff received treatment from paramedics *1051 and was transported to Hialeah Hospital, where he was treated in the emergency room, underwent a series of x-rays, and was given a CT scan. He received further treatment subsequently. The plaintiff filed his lawsuit against the defendant for injuries sustained in this second accident.
During voir dire, prospective juror Mr. Gutierrez advised that his wife had been involved in an accident where she rear-ended a vehicle and although her car had no damage and "she just touched" the other vehicle, the other driver filed a claim against them. Defense counsel asked:
[Defense counsel]: Is that experience going to affect you in any way in this kind of case or not?
Mr. Gutierrez: In that accident I feel a little bad because the insurance that we have just sent me a letter and let me know that they're going to raise my insurance up to the double, I think.
[Defense counsel]: Oh, is that right?
Mr. Gutierrez: And I called in and I tell them that that claim is fraud because nothing happened at all.
[Defense counsel]: Right.
Mr. Gutierrez: We know that, but we can't do anything about it.
[Defense counsel]: Okay.
Mr. Gutierrez: That's what the answer they give me. Okay. I canceled my insurance.
[Defense counsel]: Well, you're going to hear testimony about how an accident occurred in here and then what they're claiming and what the injuries that they're claiming are. Would you be able to put aside what happened in your wife's situation and listen to the testimony here in this case, can you do this?
Mr. Gutierrez: I still feel a little bad about that car insurance company, but I don't know. The problem is with the insurance company.
[Defense counsel]: I understand that your problem is with the insurance company.
Mr. Gutierrez: Yeah. What happened with my
[Defense counsel]: You're not going to hear anything in this case about insurance companies. So I just want to know when we start, are you going to bebefore we even start, are you going to be favoring the Plaintiff, or are you going to be favoring the Defendant, or are you going to be right down the middle before we even start?
Mr. Gutierrez: I'm going to be in the middle.
Another juror, Mr. Hillberry, in discussing caps on damages expressed the following during voir dire:
[Plaintiffs counsel]: Let me just ask another question of the panel. . . . How many people here believe in caps, that there should be caps on damages?
Mr. Hillberry: (Indicating)
[Plaintiff's counsel]: And Mr. Hillberry, tell what your feelings are in that regard?
Mr. Hillberry: Well, I believe that there should be caps on damages because there has beenwe live in a litigious society where there have been a lot of frivolous lawsuits that cost millions of dollars to corporations and individuals, and basically that would be attributed to a rise in our cost of living. As a person such as myself, I have to pay higher insurance rates for fraud and, you know, things like that.
[Plaintiff's counsel]: Sir, let me just ask you this: Given your strong thoughts about this, do you think that that those feelings could come into play in this particular case? I mean, you're going to go back to the jury room. You know that you're going to think *1052 these same beliefs that you've just expressed. Do you think that they could influence what you do in this particular case, honestly?
Mr. Hillberry: Well, of course, honestly it would because that's part of my make up. It all depends on the evidence presented.
[Plaintiff's counsel]: All right. But if you think it's marginal case, that's your view, you would tend to think that it falls into that category that, you know, this is why insurance rates are going up and so forth and so on, and that would influence your decision?
Mr. Hillberry: I don't have enough information about the case to understand whether or not my decision would be influenced. However, when you mentioned previously that we're not looking at a sizeable sum of money or whatever, I don't know that that would affect me.
[Plaintiff's counsel]: Okay. Well, that's my concern
Mr. Hillberry: Yes.
[Plaintiff's counsel]:for my client. I mean, you know, . . . if you were representing a client, you would, want to have somebody on a jury who would be fair and open minded and not think, well, gee, we're going to go back there and say, "oh, my goodness, this is this type of case, that's why my insurance rates are going up and so I'm not going to buy into this and I'm going to say no." You wouldn'tI wouldn't want that mind set in the jury room.
. . . .
[Plaintiff's counsel]: So do you think, having said all that, that if you're selected as a juror, that these thoughts that you have would come into play in this particular case when you deliberate?
Mr. Hillberry: I doubt that they would.
[Plaintiff's counsel]: But they could?
Mr. Hillberry: I suppose so. It is a possibility.
The trial court denied plaintiffs challenges for cause as to both Mr. Gutierrez and Mr. Hillberry. Plaintiff used his last peremptory challenge to strike Mr. Gutierrez and then requested an additional peremptory challenge which was ultimately granted and plaintiff struck Mr. Hillberry. Plaintiff requested another peremptory challenge to strike Ms. Wilson who was a manager at Target. The trial court denied plaintiffs request and Ms. Wilson ultimately sat on the jury. Prior to the jury being sworn, plaintiff renewed his objection to the jury. Plaintiff's motion for new trial was denied because the trial court opined that based upon the responses given by Mr. Gutierrez and Mr. Hillberry they were rehabilitated and that the challenges for cause were not appropriate.
We respectfully disagree that these jurors were rehabilitated and believe that both jurors should have been stricken for cause. "When any reasonable doubt exists as to whether a juror possesses the state of mind necessary to render an impartial verdict based solely on the evidence submitted and the instructions on the law given to her by the court, she should be excused." Nash v. Gen. Motors Corp., 734 So. 2d 437, 440 (Fla. 3d DCA 1999). Here, Mr. Gutierrez had been sued as a result of a similar accident which caused his insurance rates to double. He clearly expressed his negative feelings about the claim made against him and his wife. Although he later stated, "I'm going to be in the middle," that statement was insufficient to indicate unequivocally that he could set aside his feelings and be fair and impartial in this case. Id.
It was also error to fail to strike Mr. Hillberry for cause because he was not *1053 rehabilitated from his statement that his beliefs regarding damages would possibly come into play during deliberations. Based upon his responses during voir dire, he remained equivocal about his impartiality. As a result of the court's failure to strike either of these jurors for cause, plaintiff was forced to use peremptory challenges and then had to accept Ms. Wilson, an objectionable juror, because he had exhausted his peremptory challenges. This court has consistently held that "it is error for a court to force a party to exhaust his peremptory challenges on persons who should be excused for cause since it has the effect of abridging the right to exercise peremptory challenges." Tizon v. Royal Caribbean Cruise Line, 645 So. 2d 504, 506 (Fla. 3d DCA 1994); Diaz v. State, 608 So. 2d 888, 890 (Fla. 3d DCA 1992); Jefferson v. State, 489 So. 2d 211 (Fla. 3d DCA 1986); Anderson v. State, 463 So. 2d 276 (Fla. 3d DCA 1984).
Because we reverse for a new trial on the juror issue, we need not address the remaining issue on appeal regarding damages.
Reversed and remanded for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590808/ | John R. Ammerman, Robert L. Klein and Brian G. Sumption, Plaintiffs,
Roi Investments, Plaintiff-Appellant,
v.
Paddy A. Hauden and Susan A. Scholl, Defendants-Respondents.
No. 03-2249.
Court of Appeals of Wisconsin.
Opinion Filed: July 29, 2004.
Before Deininger, P.J., Dykman and Vergeront, JJ.
¶1 VERGERONT, J.
ROI Investments appeals the circuit court's judgment of $303,523.15 on counterclaims related to a failed real estate transaction. ROI contends: the circuit court erroneously exercised its discretion in entering a default judgment against it; a counterclaim for civil conspiracy was neither properly pleaded nor proved; the evidence did not support the court's award of damages; and the court erred in awarding prejudgment interest under WIS. STAT. § 138.04 (2001-02).[1]
¶2 We conclude the circuit court properly exercised its discretion in entering a default judgment against ROI and the evidence supported the court's award of damages. For the reasons we explain in the opinion, it is unnecessary to address ROI's arguments concerning the civil conspiracy counterclaim. Finally, we agree with ROI that the circuit court erred in awarding prejudgment interest under WIS. STAT. § 138.04. We therefore affirm in part, reverse in part, and remand with directions consistent with this opinion.
BACKGROUND
¶3 The real estate that is the subject of this dispute is a commercial property located on Normandy Lane in Madison. In early 1995, it was owned by ROI, which at that time was a partnership comprised of two partners, John Ammerman and Robert Klein. The respondents, Paddy A. Hauden and Susan A. Scholl, made an offer to purchase the property for $1.6 million in March 1995. They had recently sold some farmland and were intent on purchasing an "exchange property" within six months in order to take advantage of a provision in the Internal Revenue Code that would allow them to avoid tax consequences from the sale of the farmland.[2]
¶4 The offer to purchase was accepted by ROI. It contained a leasing contingency. After unsuccessful attempts at negotiating a lease extension with the sole tenant of the property, the respondents proposed to amend the offer to purchase to reduce the purchase price to $1.3 million. ROI did not accept this offer.
¶5 The Normandy Lane property had been the subject of a pending foreclosure action. It was sold at a sheriff's sale on July 11, 1995, to Community National Bank of Oregon. The next day the respondents offered to purchase the property from the bank. On July 18, prior to the hearing on the confirmation of the sale, ROI filed a bankruptcy proceeding, which stayed the foreclosure action.
¶6 On July 25, 1995, the respondents submitted to ROI an offer to purchase the property for $1.3 million, contingent upon the bankruptcy court's approval and on closing before July 31. ROI accepted the offer. A hearing was scheduled for July 31 to obtain the bankruptcy court's approval. On July 31, RJK Partnership, comprised of Klein and his father, made an offer to purchase the property for $1.4 million. The bankruptcy court did not approve the respondents' offer. On August 4, RJK Partnership withdrew its offer.
¶7 Because the six-month deadline for the tax advantage was quickly approaching, the respondents did not make any further effort to acquire the Normandy Lane property, but instead purchased two duplexes in Sun Prairie. Several months later they sold these properties and purchased an office building on Science Drive in Madison.
¶8 ROI, Ammerman, Klein, and Brian Sumption, who had since become a partner of ROI, began this action in May 1999, alleging that the respondents had breached their contract with ROI by not purchasing the Normandy Lane property for $1.6 million. The respondents denied the allegations in the complaint, alleging that the leasing contingency had not been met. They also filed two counterclaims. One alleged that ROI and its partners had acted in concert with RJK Partnership to prevent the bankruptcy court's approval of the respondents' purchase of the Normandy Lane property (tort claim). The other alleged that by accepting the $1.3 million offer in July 1995, ROI Investments and its partners had a contractual relationship with the respondents that required them to act in good faith in performing the contract, and they breached that duty by acting in concert with RJK Partnership to prevent the respondents' purchase of the property for $1.3 million (contract claim). The respondents also sought punitive damages.
¶9 Eventually a trial was scheduled for January 23, 2002. Before the trial began, the court took up a motion filed by Klein for a delay in the trial. The court denied the motion and, because none of the plaintiffs were prepared to proceed on their claims against the respondents, the court dismissed the plaintiffs' claims with prejudice. With respect to the counterclaims, the court stayed them against Ammerman individually because he had recently filed bankruptcy, stayed them against Klein and Sumption individually, and granted a default judgment against ROI after concluding ROI was not present for trial.
¶10 The court subsequently held a trial on the damages to be awarded against ROI. In its written decision, the court rejected ROI's assertion that the counterclaim did not state a claim for a civil conspiracy between ROI and RJK Partnership to injure the respondents' business under WIS. STAT. § 134.01[3] and concluded that the evidence established a conspiracy to the requisite degree of proof. The court noted that because it found a civil conspiracy had been proved, it did not need to address alternative causes of action in the counterclaim.
¶11 With respect to damages, the respondents had proposed two alternative measures of damages at the trial: (1) the difference between the fair market value of the Normandy Lane property and the $1.3 million ROI had agreed to sell it for; and (2) "the benefit of the bargain" approach under which the respondents presented evidence of the costs and losses incurred as a result of the breach plus the difference between the reasonable performance expectation of the Normandy Lane property compared to the actual performance of the properties the respondents ultimately acquired. The court adopted the first approach, which it called the "loss of the bargain" approach, and found that the fair market value of the property was $1.5 million based on the value ROI Investments had stated in its bankruptcy schedules filed on August 3, 1995. Accordingly, the court found the damages under the "loss of the bargain" approach to be $200,000. The court also concluded that the respondents were entitled to prejudgment interest under WIS. STAT. § 138.04 because their damages were readily determinable. Although the court found that ROI's behavior in conjunction with RJK Partnership was "probably unethical" and "unprincipled and thoughtless," it found that the legal standard for punitive damages had not been met.
¶12 Subsequently, based on the respondents' offer of settlement under WIS. STAT. § 807.01 for $100,000, which had been rejected, the court ordered interest at a rate of 12% from February 17, 2002, plus double the taxable costs. The final judgment entered against ROI was for $303,523.15.
DISCUSSION
Default Judgment
¶13 WISCONSIN STAT. § 806.02(5) provides that a "default judgment may be rendered against any defendant who has appeared in the action but who fails to appear at trial." The decision whether to enter a default judgment is committed to the circuit court's discretion. See Palmerton v. Associates' Health & Welfare Plan, 2003 WI App 41, ¶9, 260 Wis. 2d 179, 659 N.W.2d 183. We affirm a discretionary decision if the circuit court considered the relevant facts of record, applied the correct legal standard, and reached a reasonable result. Id.
¶14 ROI contends the circuit court erroneously exercised its discretion in entering a default judgment against it because it did not fail to appear at trial on January 23, 2002. According to ROI, because two partners, Klein and Sumption, were present, ROI was present. Because ROI makes no other challenge to the entry of a default judgment, we limit our discussion to whether the circuit court had a reasonable basis in the record for concluding that ROI did not appear at trial. To that end, we set forth the procedural facts in some detail.
¶15 During the course of this proceeding in the circuit court, at least three different attorneys represented ROI and the three partners, and all were granted permission to withdrawat least two because they were not being paid.[4] Between the periods of representation by counsel, Ammerman appeared by telephone and corresponded with the court on behalf of ROI, including at the scheduling conference when the January 23, 2002 trial date was set. On December 21, 2001, the attorney then representing the plaintiffs, Gregory Fumelle, moved to withdraw for nonpayment of fees. The hearing on this motion was held on January 16, 2002, by which time the court had been notified that Ammerman had filed for bankruptcy on December 6, 2001. At the motion hearing, Ammerman appeared by telephone and objected to counsel's withdrawal,[5] Klein appeared in person and did not object, and counsel represented that Sumption did not object. The respondents did not object to Attorney Fumelle's withdrawal as long as the trial date of January 23, 2002, was not affected.
¶16 The court granted Attorney Fumelle's motion to withdraw. In doing so, the court emphasized that the trial was going to begin on January 23, 2002, as scheduled on the plaintiffs' claims; the court would address the effect of the bankruptcy on the counterclaims when that issue arose; and the court expected Ammerman to be present, either representing himself or with counsel. The court recounted the scheduling history and stated that Ammerman had manipulated the proceedings to seek delays to the prejudice of the respondents.
¶17 On January 18, 2002, Klein wrote to the court asking for a delay in the trial. Klein stated that he had not been able to obtain replacement counsel to represent ROI and that, with "the other partners of ROI in bankruptcy proceedings," the "entire case, which I did not personally initiate, has become my sole responsibility." One day before the scheduled trial, Klein, through counsel, filed a motion to stay the trial because of Ammerman's bankruptcy and also because Ammerman, who had entered into all the contracts and conducted all the negotiations, was now in Florida and could not be compelled to appear for trial. Accompanying the motion was Klein's affidavit explaining his efforts to obtain new counsel for the trial and stating that he had retained this counsel for the limited purpose of obtaining a stay based on the bankruptcy.
¶18 When court convened on January 23, 2002, Ammerman was not present and had not contacted the court. Klein was present, represented by the attorney who had filed the motion on his behalf, and Sumption was present. The court first took up Klein's motion for a stay. Klein's attorney emphasized that she was representing Klein for the sole purpose of requesting the stay. In addition to arguing that bankruptcy law required a stay, she also argued that Klein had no means to represent the plaintiffs on their claims or to defend the counterclaims brought against him as an individual if the trial were to go ahead, and no means to compel the attendance of Ammerman, who was the key witness for the plaintiffs' claims and defense to the counterclaims. Sumption spoke on his own behalf, stating he had only recently learned he was a party in this action and had nothing further to say.
¶19 The court denied Klein's motion. The court concluded that the automatic stay under 11 U.S.C. § 362 resulting from Ammerman's bankruptcy did not affect the plaintiffs' claims. It rejected the view that it was unfair to either Klein or Sumption to proceed on those claims, observing that they knew about the lawsuit[6] and had been content to allow Ammerman to take the lead; and, even though Ammerman was a 51% owner of the partnership, that did not absolve them from responsibility in the litigation. The court then recounted in detail the history of the proceedings, motions to withdraw by counsel, extensions of deadlines, and scheduling to accommodate the plaintiffs. Klein and Sumption stated that they were not prepared to proceed on their claims and the court therefore dismissed the claims of all plaintiffs with prejudice.
¶20 With respect to the counterclaims, the court agreed that the respondents could not proceed against Ammerman because of his bankruptcy. However, Klein's attorney argued that they could not proceed at all, because, if a judgment were entered against the partnership, the respondents might look to Ammerman's assets to satisfy it. The court, in response, pointed out that the partnership was not represented, that the attorney present was representing Klein, Sumption was representing himself, and no one was representing ROI. The attorney did not disagree, and neither did Klein or Sumption. The court stated that a default judgment against ROI was appropriate because ROI was not represented by anyone present and therefore was not prepared to proceed. Again no one spoke in disagreement. The court decided to give Sumption and Klein as individuals the opportunity to defend against the counterclaims.
¶21 Based on this record, we have no hesitation in deciding that the circuit court acted reasonably in concluding that ROI did not appear on January 23 for trial. We have already recounted two occasions on which the court, without correction, stated that ROI was not represented by anyone present. The court made the same statement two other times during the proceeding and was corrected neither time. In addition, when the court asked for appearances at the beginning of the hearing, neither Klein's counsel nor Klein nor Sumption stated that the appearance was on behalf of ROI. Finally, the argument made to the court on Ammerman's majority ownershipthat as majority owner, he controlled the litigation and it was unfair to hold Klein and Sumption responsibleruns directly counter to ROI's position that Klein and Sumption were appearing on behalf of ROI. In short, the court made it very clear that in its view ROI was not represented by anyone present and gave Klein, his attorney, and Sumption ample opportunity to correct that view, but no one did. We conclude that the court properly exercised its discretion in entering a default judgment on the counterclaims against ROI on the ground that ROI did not appear at trial.
Civil Conspiracy Claim
¶22 ROI contends the circuit court erred in construing the tort counterclaim to allege a civil conspiracy and in finding that the evidence established a civil conspiracy. However, ROI does not explain, and we do not see, how either of these issues matters given that the court had entered a default judgment on the entire counterclaim, which also contained a contract claim.
¶23 We understand that the circuit court addressed the tort claim because of the request for punitive damages, and a decision on punitive damages required that the court make findings as to exactly what the plaintiffs did and did not do, even though liability had been established by virtue of the entry of the default judgment. However, the court did not award punitive damages, and the damages it did award, according to both parties' briefs here and in the circuit court, were based on theories of damages for breach of contract. ROI argued in the circuit court that the only damages the respondents could recover, based on the entry of the default judgment, were for the contract claim. The circuit court said nothing in its decision to suggest that liability on the contract claim had not been established by the entry of the default judgment; it simply stated that it had no need to address that claim because it had already found damages under the "loss of bargain" theory for a civil conspiracy.
¶24 We have affirmed the entry of the default judgment. There is no argument before us from either party that the measure of compensatory damages would differ in any way depending on whether liability flowed from the contract claim or from a civil conspiracy claim. Accordingly, we conclude it is unnecessary to discuss ROI's arguments on the civil conspiracy claim.
Damages
¶25 ROI contends the record does not support the court's determination that the fair market value of the property was $1.5 million. ROI argues that under bankruptcy law the values stated on a bankruptcy schedule are not conclusive as to fair market value. Citing Hansen v. Hansen, 95 B.R. 586 (Bankr. C.D. Ill. 1989) and Federal Rule of Bankruptcy Procedure 3012, ROI argues that any party in interest may bring a motion to determine the value of an asset of the bankruptcy estate and, if a party does, the bankruptcy court then considers the evidence presented and decides on a value.
¶26 ROI's challenge to the damage award is based on the court's determination of fair market value. That is a question of fact, and we do not set aside a circuit court's factual finding unless it is clearly erroneous. Rumage v. Gullberg, 2000 WI 53, ¶43, 235 Wis. 2d 279, 611 N.W.2d 458. When viewing the evidence to determine if it supports a damage award, we view the evidence in the light most favorable to the award, Teff v. Unity Health Plans Ins. Corp., 2003 WI App 115, ¶41, 265 Wis. 2d 703, 666 N.W.2d 38, and if there are competing reasonable inferences to be drawn from the evidence, we accept those that support the findings made by the court. Rumage, 235 Wis. 2d 279, ¶43.
¶27 Applying this standard, we conclude the circuit court's finding that the fair market value of the property was $1.5 million was not clearly erroneous. The schedules were submitted under penalty of perjury and it is a reasonable inference that ROI as the owner of the property knows its fair market value. The fact that the value on the schedule is not conclusive as to fair market value in a bankruptcy proceeding if other evidence is presented that the bankruptcy court finds more persuasive does not mean that the court in this case cannot decide the schedule does accurately state the fair market value. ROI did not present evidence that its sworn value was not an accurate reflection of the fair market value. ROI points to evidence that may support a lower fair market value than $1.5 million, but that is not the proper inquiry. Our task is not to examine the record to see if the court could have made another finding of fair market value, but instead to determine whether there is evidence to support the finding the court did make. See City of Stoughton v. Thomasson Lumber Co., 2004 WI App 6, ¶28, 269 Wis. 2d 339, 675 N.W.2d 487. We are satisfied that there was.[7]
Prejudgment Interest
¶28 ROI contends the circuit court erred in awarding prejudgment interest under WIS. STAT. § 138.04 because the compensatory damages the respondents sought were not liquidated or liquidable.[8]
¶29 The circuit court and respondents are of the view that the damages here were readily determinable, that is, liquidable, because respondents were relying on the fair market value as stated in ROI's own bankruptcy schedules.
¶30 A party's entitlement to prejudgment interest is a question of law, which we review de novo. Teff, 265 Wis. 2d 703, ¶42.
¶31 The general rule is that prejudgment interest may be recovered only when damages are either liquidated or liquidable, meaning that there is a reasonably certain standard by the correct application of which one can be certain of the amount he or she owes. Id., ¶43. The most frequently stated rationale for the rule is that if the amount of damages is either liquidated or determinable by reference to some objective standard, the party proceeded against can avoid the accrual of interest by simply tendering money to the claimant in a sum equal to the amount of damages. Id. Examples of cases in which prejudgment interest is not appropriate include those with factual disputes that need to be resolved to decide the proper method of calculating damages under a contract, id., ¶47 (discussing Jones v. Jenkins, 88 Wis. 2d 712, 726, 277 N.W.2d 815 (1979)), and those with factual disputes that need to be resolved to determine lost revenues because of a breach of contract. Id., ¶49-50.
¶32 We conclude the damages from ROI's conduct that thwarted the sale to respondents for $1.3 million were not liquidated or liquidable. The respondents presented two different measures of damages, both of which required the resolution of factual disputes. We do not agree with the circuit court or respondents that the measure the court chose did not involve the resolution of factual disputes because the fair market value the court arrived at was contained in ROI's bankruptcy schedules. Before the trial, the court rejected the respondents' motion to judicially estop ROI from contesting a fair market value of $1.5 million because it was contained in the bankruptcy schedule; the court stated that it would nonetheless consider that value as evidence of fair market value along with any other evidence produced at trial. The court did that, and, as we have explained above, it did not err in finding that was the fair market value. However, there was other evidence from which the court could have reasonably inferred a lower fair market valuefor example, the purchase price of $1.3 million offered by the respondents and conditionally accepted by ROI, the same offer the respondents had made a couple of months earlier before ROI filed for bankruptcy. Moreover, by offering an alternative measure of damages, the respondents themselves acknowledged that there was more than one appropriate measure, and the measure the court did not adopt required the resolution of factual disputes over what expenses and losses had been caused by respondents' inability to acquire the Normandy Lane property. This is not a situation where the contract established a method by which one could determine the amount owed with reference to undisputed facts. See, e.g., Id., ¶46 (prejudgment interest appropriate because contract plainly set forth method by which to determine amount of payments and no factual disputes needed resolution to apply that method).[9]
¶33 The respondents make a brief reference to Lommen v. Danaher, 165 Wis. 15, 161 N.W.2d 14 (1917), apparently as an alternative basis for awarding prejudgment interest. In that case, the seller under a land contract did not complete his obligations and so returned the personal and real property that had been the consideration for the purchase. Id. at 16-17. The purchaser sued, claiming that he was entitled in addition to the difference in the value of that consideration and the fair market value of the property he had attempted to purchase, plus interest since the breach. Id. at 17. The issue on appeal was whether the seller was entitled to more than the return of the consideration, and the court concluded he was. The court stated the proper measure of the damages was the difference between the fair market value of the property to be sold and the value of the consideration, plus interest from the time of the breach. Id. at 23. It is this reference to interest on which the respondents rely. There is no other discussion of entitlement to interest in the case. Moreover, the respondents do not relate Lommen to the case law that has more recently developed concerning the award of prejudgment interest. Their argument based on Lommen is not developed sufficiently for us to conclude that it is an alternative basis on which to award prejudgment interest if damages are not liquid or liquidable.
¶34 We conclude the circuit court erred in awarding prejudgment interest at 5% from July 31, 1995.
CONCLUSION
¶35 We affirm the circuit court's entry of a default judgment against ROI and its award of damages against ROI in the amount of $200,000. However we conclude the circuit court erred in awarding prejudgment interest at 5% from July 31, 1995. Accordingly, we reverse this aspect of the judgment and remand with instructions to modify the judgment to delete the amount of the prejudgment interest awarded at 5% from July 31, 1995.
By the Court. Judgment affirmed in part; reversed in part and cause remanded with directions.
NOTES
[1] All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
[2] Under 26 U.S.C. § 1031 (2002), a party who sells a real estate asset may avoid realizing a capital gain on the sale by acquiring a like-kind business or investment "exchange" property within six months.
[3] WIS. STAT. § 134.01 states:
Injury to business; restraint of will. Any 2 or more persons who shall combine, associate, agree, mutually undertake or concert together for the purpose of willfully or maliciously injuring another in his or her reputation, trade, business or profession by any means whatever, or for the purpose of maliciously compelling another to do or perform any act against his or her will, or preventing or hindering another from doing or performing any lawful act shall be punished by imprisonment in the county jail not more than one year or by fine not exceeding $500.
[4] The circuit court stated that there were four attorneys, but it is not clear from the record whether Attorneys Hanson and Manzo were from the same firm.
[5] The court informed Ammerman that it had not given him permission to appear by phone and he could not appear by phone at trial without the court's permission.
[6] The court stated that the file showed that in May 2001 notices were sent to Sumption at the address provided and came back indicating no forwarding address. Sumption had not since notified the court of an address, so no further notices were sent.
[7] In its reply brief, ROI contends that, because the respondents purchased other property from which they realized income, they were not damaged by the inability to acquire the Normandy Lane property and, in fact, were better off. In its main brief, ROI argues only that the record does not support the court's finding of a fair market value of $1.5 million for the Normandy Lane property. ROI appears to argue in its reply brief that the measure of damages the court employed was in error because the court did not consider the financial benefits the respondents realized from the property they purchased instead of the Normandy Lane property. We do not consider arguments made for the first time in the reply brief. Henry v. General Cas. Co., 225 Wis. 2d 849, 868 n.10, 593 N.W.2d 913 (Ct. App. 1999). We also observe that in the circuit court ROI did not challenge as legal error the measure of damages the court ultimately adopted, but asserted only that the evidence did not show any difference in the agreed upon purchase price and the fair market value. We generally do not address arguments not made in the circuit court, Johnson v. Johnson, 199 Wis. 2d 367, 374, 545 N.W.2d 239 (Ct. App. 1996), and we decline to do so here.
[8] WISCONSIN STAT. § 138.04 provides:
Legal rate. The rate of interest upon the loan or forbearance of any money, goods or things in action shall be $5 upon the $100 for one year and according to that rate for a greater or less sum or for a longer or a shorter time; but parties may contract for the payment and receipt of a rate of interest not exceeding the rate allowed in ss. 138.041 to 138.056, 138.09 to 138.12, 218.0101 to 218.0163, or 422.201, in which case such rate shall be clearly expressed in writing.
This statute establishes a rate of interest, but it is the case law we discuss above that controls whether the court properly awarded prejudgment interest in this case.
ROI does not contest the interest at 12% awarded from the date of the respondents' settlement offer under WIS. STAT. § 807.01.
[9] Our analysis and conclusion on prejudgment interest is the same whether we treat the damages awarded as those caused by the civil conspiracy the court found was properly pleaded and proved or those caused by the contract claim alleged. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590806/ | 972 So. 2d 792 (2007)
Patricia POFFENBARGER and Michael Poffenbarger
v.
MERIT ENERGY COMPANY and David Hertel.
1041707.
Supreme Court of Alabama.
May 11, 2007.
George W. Finkbohner III, David G. Wirtes, Jr., and George M. Dent III of Cunningham, Bounds, Crowder, Brown & Breedlove, L.L.C., Mobile, for appellants.
A. Danner Frazer, Jr., D. Brent Baker, and Mary Margaret Bailey of Frazer, Greene, Upchurch & Baker, L.L.C., Mobile, for appellees.
MURDOCK, Justice.
Pursuant to Rule 5, Ala. R.App. P., Patricia Poffenbarger and Michael Poffenbarger, husband and wife, appeal from a partial summary judgment entered by the Mobile Circuit Court in favor of Merit Energy Company ("Merit") and David Hertel, Merit's operations manager. We affirm.
I. Facts and Procedural History
In 1955, oil was discovered beneath the surface of land located in and around Citronelle, Alabama. This discovery led to the development of what is known as the "Citronelle oil field."
In 1995 and 1999, Merit acquired substantial interests in the Citronelle oil field. *793 On August 29, 2002, a leak was discovered in a section of one of the oil pipelines acquired by Merit. That section of pipeline, although located on land adjacent to a 32-acre tract of land owned by the Poffenbargers, ran along, and in close proximity to, the boundary of that 32-acre tract. Oil had escaped through a hole in the pipeline and had entered the Poffenbargers' land. This 32-acre tract is uninhabited wood lands and, except for pipelines and other equipment associated with the production of oil, is undeveloped.[1]
Merit contracted with M & M Industrial Services ("M & M") to remove the spilled oil from the Poffenbargers' property. After containing the oil, M & M replaced the leaking section of pipeline. M & M was on-site cleaning the oil spill from August 29, 2002, through October 1, 2002. Merit spent approximately $42,000 on the initial cleanup of the Poffenbargers' property.
In November 2002, Merit's operations engineer, Laura Nofziger, informed Mrs. Poffenbarger by letter that Merit had completed its cleanup of the property. Merit admits that Nofziger's assertion to Mrs. Poffenbarger was incorrect and that oil remains on the Poffenbargers' property.
On March 21, 2003, the Poffenbargers sued Merit and Hertel, among others, asserting claims of trespass, nuisance, wantonness, and negligence. They sought "compensatory and punitive damages in an amount deemed appropriate by the jury, plus costs." Merit and Hertel filed a joint answer in which they denied the material allegations of the complaint and asserted various affirmative defenses. Later, Merit and Hertel amended their answer by adding, in further response to the Poffenbargers' punitive-damages claim, an affirmative defense that stated, in part, that "[o]n August 9, 2004; [Merit] entered into a consent agreement with the U.S. Environmental Protection Agency and pursuant to that agreement paid a fine of $78,672.00, which was in part a penalty for the spill which is at issue in this case."
On February 11, 2005, Merit and Hertel filed a motion for a partial summary judgment as to the proper measure of compensatory damages for the contamination of real property.[2] In their supporting brief, Merit and Hertel noted that the Poffenbargers were seeking, as damages, the cost to remediate their property and that, according to the Poffenbargers' expert witness, the cost of that remediation was estimated to be $2,608,740.[3] Merit and Hertel pointed out that an appraisal of the Poffenbargers' 32-acre tract had been obtained and that the appraisal indicated a $38,628 value before the contamination ($1,200 per acre) and a post-contamination value of $32,628.[4]
Merit and Hertel argued that the proper measure of damages for an injury to real property is not the cost to remediate the *794 property, but, instead, is the diminution in the fair market value of the property resulting from the injury. Merit and Hertel asserted that, although a property owner may recover the cost of remediation if the injury to the property is "temporary" rather than permanent, the repair costs recovered cannot exceed the diminution in the fair market value of the property caused by the injury. They argued that, because the cost of remediating the Poffenbargers' property exceeded the diminution in its value, the proper measure of damages for the injury to the Poffenbargers' property was the diminution in the value of the property.
In response, the Poffenbargers argued that the leak of oil onto their property caused what Alabama cases refer to as a "temporary" injury and that, accordingly, they were entitled under Alabama law to recover the cost of restoring the real property to its predamaged condition. They also argued that the rule of law limiting damages for injuries to real property caused by pollution to the diminution in value of the property was antiquated, given the "emerging area of environmental law and pollution control," as well as the implementation of statutes and regulations seeking to limit pollution.
On August 1, 2005, the trial court granted Merit and Hertel's motion and entered a partial summary judgment in their favor. In its order, the trial court found "that there [was] no genuine issue of material fact as to [the Poffenbargers'] claim[ ] for remediation costs which exceed diminution in fair market value of the land . . . and that [Merit and Hertel] are entitled to a summary judgment in their favor on [this] claim[ ] as a matter of law."[5] The trial court held
"that the proper measure of compensatory damages in this action, which is based on alleged damages to [the Poffenbargers'] real property, is the difference between the fair market value of the property before and after the alleged. damage, not to exceed the fair market value of the property before the alleged damage."
The trial court certified its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. It also certified that an immediate appeal from the judgment would materially advance the ultimate termination of the litigation because it involved a controlling question of law as to which there was a substantial ground for a difference of opinion. According to the trial court, the controlling question of law was: "[W]hat is the appropriate measure of compensatory damages for contamination to land where the remediation or clean-up costs exceed the fair market value of the land before it was contaminated?" Thereafter, the trial court amended its order nunc pro tunc, eliminating the language making the order final under Rule 54(b).[6]
Pursuant to Rule 5, Ala. R.App. P., the Poffenbargers petitioned this Court for permission to appeal from the trial court's partial summary judgment. This Court granted the Poffenbargers' petition.
*795 II. Standard of Review
A summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P. We review the trial court's ruling on a motion for a summary judgment de novo. Bruce v. Cole, 854 So. 2d 47, 54 (Ala.2003). In the present case, our review is de novo for the additional reason that the material facts are undisputed and the only issue presented involves a pure question of law. See Christian v. Murray, 915 So. 2d 23, 25 (Ala.2005).
III. Analysis
This appeal presents, for the first time, a fact situation that directly raises the following question: Under Alabama law, what is the general rule for the measurement of direct, compensatory damages for an injury to real property when the cost to remediate the property exceeds the diminution in the value of the property caused by the injury? The Poffenbargers assert that the proper measure of damages is the full cost to remediate the property; Merit and Hertel assert that the proper measure of damages generally is the diminution in the value of the property. We agree with Merit and Hertel, and we therefore conclude that the trial court's judgment is due to be affirmed.
Although this is the first time this Court has been confronted with a case in which the cost to remediate injured real property exceeds the diminution in its value caused by the injury, this Court, on numerous occasions, has addressed the issue of the proper measure of damages for injury to real property. Those cases, as well as the authorities on which they rely, inform our conclusion in the present case.
At issue in Brinkmeyer v. Bethea, 139 Ala. 376, 35 So. 996 (1904), was a trespass to real property that involved the removal from the real property of clay, dirt, and topsoil. This Court described the common-law measure of damages for injuries to real property as follows:
"`In actions for injury to real property, when the injury is done to the realty itself, the measure of damages is the difference in the value of the land before and after the trespass, or in some cases the amount necessary to restore the property to the condition in which it was before the trespass was committed.' [5] Am. & Eng. Ency. Law, 36; 3 Sedg. on Damages (8th Ed.) § 932."
139 Ala. at 378, 35 So. at 997 (emphasis added). The quoted passage from The American and English Encyclopedia of Law is followed in that Encyclopedia by a footnote explaining as follows: "Where the cost of putting the premises in the same condition in which they were before the trespass exceeds the increased value thereby added to the land, the depreciation in value of the land will usually be held to be, the measure of damages." 5 American and English Encyclopedia of Law 36 n. 1 (John Houston Merrill ed., 1888). Section 932 of Sedgwick on Damages, the other source upon which this Court relied in Brinkmeyer, similarly states:
"The general principle upon which compensation for injuries to real property is given, is that the plaintiff should be reimbursed to the extent of the injury to the property. The injury caused by the defendant may be of a permanent nature; in such a case the measure of damages is the diminution of the market value of the property. If the injury caused a total or partial loss of the land for a limited time, the diminution in rental value is the measure. One of these two measures is always applicable. If the injury is easily reparable, the cost of repairing may be recovered. But it must be shown that the repairs were reasonable; and if the cost of repairing the injury is greater than the diminution *796 in market value of the land, the latter is always the true measure of damages. Strictly speaking, therefore, the cost of repairs is not the measure of damages, but only evidence of the amount of damages."
3 Theodore Sedgwick, A Treatise on the Measure of Damages 932 (8th ed. 1891) (emphasis added; footnotes omitted).
In Sloss-Sheffield Steel & Iron Co. v. Mitchell, 161 Ala. 278, 49 So. 851 (1909), this Court again addressed the proper measure of damages for an injury to real property. This. Court described the "facts before it in that case as follows:
"This was an action for damages for the overflow of appellee's land, caused by the defendant's obstruction of the natural flow of waters in a creek or branch. . . .
". . . .
"Plaintiff had a number of tenant houses upon his land and it appeared in evidence that the overflow of water invaded some of the houses, leaving in those invaded, and under all of them, and on the land, slime, mud, and debris, causing the floors to swell, and piers to settle, and the sills to rot. The plaintiff testified that he had cleaned up the land and houses, and partially repaired the injuries done to the foundations and floors of the houses. This had been accomplished at an expenditure of $300, and had so far restored the premises to their original condition that the rent received from each of the houses had been diminished by 50 cents a month only. There had been no loss of soil, nor had any part of the premises been seriously or permanently overlaid by soil deposited upon them."
161 Ala. at 280-83, 49 So. at 852-53. Discussing the appropriate measure of damages, we stated:
"On these facts, without more, the plaintiff was not entitled to compensation as for the lasting detriment of his landas for detriment not to be averted or removed by reasonable effort and expenditure. 4 Suth. Dam. §§ 1017, 1018; Abercrombie v. Windham, 127 Ala. 179, 28 So. 387 [(1900)]. So far as these injuries are concerned, the true measure of plaintiff's damages was the reasonable expense of restoring the premises and the loss of income pending their restoration with reasonable effort, expenditure, and expedition. The plaintiff was in duty bound to make reasonable effort to prevent the accumulation of damages."
161 Ala. at 283, 49 So. at 853.
In reaching its decision in Sloss-Sheffield, this Court relied, among other things, on 4 J.G. Sutherland, A Treatise on the Law of Damages §§ 1017-18 (3d ed.1904). Sections 1017 and 1018 of that treatise state, in part, as follows:
"§ 1017. . . . Wherever, by one act, a permanent injury is done the damages are assessed once for all, even though separate parcels of land are affected, and any depreciation in the value of the property will be an element of damages according to the extent and duration of the plaintiff's estate. . . .
". . . .
"§ 1018. . . . If the wrong consists in the destruction or removal of some addition, fixture or part of the premises the loss may be estimated upon the diminution of their value if any results, or upon the value of the part severed considered either as a part of the premises or detached. . . . When occasion requires it the rule is generally announced to be that when the reasonable cost of repairing the injury by restoring the premises is less than the damage done such cost measures the damages; but if the cost of restoration is more than the diminished value the latter generally determines the amount of the recovery."
*797 4 Sutherland on Damages §§ 1017-18 (emphasis added; footnotes omitted).
In Fuller v. Fair, 202 Ala. 430, 80 So. 814 (1919), this Court stated the general measure of damages for injury to real property as follows:
"(1) If the land is taken, or its value totally destroyed, the owner is entitled to recover the market value thereof at the time of the taking or destruction, with legal interest thereon to the time of the trial. (2) If the land is permanently injured, but not totally destroyed, the owner will be entitled to, recover the difference between the market value of the land at the time immediately preceding the injury and the market value of the land in its immediate condition after the injury, with legal interest thereon to the time of the trial. (3) If the land is temporarily, but not permanently,[[7]] injured, the owner is entitled to recover the amount necessary to repair the injury or to put the land in the condition it was at the time immediately preceding the injury, with legal interest thereon to the time of the trial."
202 Ala. at 432, 80 So. at 816.
The legal authorities on which the Fuller Court relied with regard to the measure of damages included § 7229 of Commentaries on the Law of Negligence, which viewed the cost of repair as a limitation on recoverable damages:
"Where the injury to real estate is permanent, the damages may be assessed on the basis of a permanent depreciation of the value of the property. . . . Where the injury is temporary and may be abated, the, recovery is limited to the amount necessary to put the land in as good a condition as it was before the injury, and, in addition, compensation for any loss of use during the time it was rendered unfit for occupancy."
6 Seymour D. Thompson, Commentaries on the Law of Negligence § 7229 (1905) (emphasis added; footnotes omitted).
In Pan American Petroleum Co. v. Byars, 228 Ala. 372, 153 So. 616 (1934), a landowner sued based on the contamination of water wells that resulted from the leakage of gasoline from tanks and pumping equipment maintained by the defendant. This Court stated:
"In actions like the one now before the court the measure of damages, as a general rule, in the event the injury to the land is permanent, is the difference *798 between the market value of the land before the injury, and its market value after the injury.
"If the injury is not permanent, but temporary, the measure of damages ordinarily is the difference between the rental value of the land before the injury and the rental value after the injury. But, in addition to a recovery for the loss in market value of the property or its rental value, the plaintiff may, in such cases, recover any special or incidental damages which he may have suffered thereby, and which proximately resulted from the wrong, whether the injury was permanent or temporary."
228 Ala. at 376, 153 So. at 619.
We addressed the proper measure of damages for injury to real property more recently in Borland v. Sanders Lead Co., 369 So. 2d 523 (Ala.1979). In Borland, the plaintiffs owned property on which they farmed and raised cattle. A lead plant was located on adjacent property. On two occasions, the filtering process at the lead plant failed, allegedly causing an accumulation of lead particulates and sulfoxide deposits on the plaintiffs' property. Following a trial at which evidence was presented ore tenus, the trial court entered a judgment in favor of the defendant on the basis that the defendant's compliance with the Alabama Air Pollution Control Act, Ala.Code 1975, § 22-28-1 et seq., shielded the defendant from liability, and that the plaintiffs had not been damaged because the value of their property had been increased by the presence of the lead plant.
On appeal, this Court reversed the trial court's judgment. 369 So.2d at 525. First, this Court held that compliance with the Alabama Air Pollution Act, by its plain language, did not shield the defendant company from liability. 369 So.2d at 526. Separately, as to the issue of damages, we stated:
"On remand, the issue of the proper measure of damages will undoubtedly arise. In its final decree, the trial Court held that the Plaintiffs' property had increased in value as commercial property due to its proximity to the Defendant's lead plant; therefore, Plaintiffs were not allowed to recover of the Defendant. As noted earlier, such a rule would allow industries, as here, to have absolute control over the use of another's property. This clearly is not the rule for measuring damages in trespass cases. Moreover, it overlooks the fact that the appreciation factor is totally unrelated to the wrongful acts complained of.
"It is often stated that the measure of damages in trespass cases is the difference between the value of the land before and after the trespass. . . .
"We note, however, that this may not be a case where the damages are to be based on the difference in value before and after the trespass. This rule is subservient to the underlying proposition for measuring damages in trespass cases: The Plaintiff is ordinarily entitled to an amount which will compensate him for actual damages sustained. Thomas v. Bank of Hurtsboro, 243 Ala. 658, 11 So. 2d 370 (1942). In 75 Am.Jur.2d, Trespass § 51, it is stated:
"`No hard and fast principles can be laid down for the measurement of damages in this class of cases. Generally, the rules to be applied depend upon whether or not the injury is permanent or temporary in character. As is the rule generally, in the case of permanent injury, the recovery must include all damages, both past and future. The proper measure of damages is the difference between the value of the realty before the injury and its value after the injury, except where there is a total destruction, *799 when the owner is entitled to recover the entire value.
"`As to temporary injuries, the authorities are not in agreement as to the proper rule generally for their computation. Some courts have applied the rule in actions of trespass that the cost of restoring the property to its former condition is the proper measure of damages for a temporary injury thereto when this is less than the diminution of the market value of the whole property by reason of the injury, but where the cost of restoration is more than the diminution in the market value, the latter is generally the true measure of damages. In general, the measure of damages for wrongfully depriving the plaintiff of the use of his property is the rental value or the reasonable value of the use of the property during the time he is deprived thereof Thus for a wrongful ouster of the plaintiff from a portion of his farm, damages may be awarded equal to the difference in the rental value of the farm with and without such portion.' (Emphasis [added in Borland].)
". . . .
"In conclusion, in determining the amount of damages recoverable by a plaintiff whose property has been trespassed upon, the law is flexible and the rule simple: What will compensate the plaintiff for the injury he has received? In a case such as the present one, it must first be determined whether the alleged intrusion is of a permanent nature or of a continuing nature. If the injury is permanent, damages must be recovered for all timepast, present and future. The measure of damages means the difference in the fair market value of the property before and after the trespass, based on the plaintiff's use of the property or adaptability of the property to a particular use prior to the trespass.
"If the nature of the injury is continuous (i.e., during the tenure of the trespass), the plaintiff can recover for the use of his property or its fair rental value. (Also, plaintiff may be able to recover the cost of restoration if this, plus rental value, is less than the diminution in value.) Any damages for future loss must be recovered in a later action if and when a subsequent trespass occurs."
369 So.2d at 530-31 (emphasis added unless otherwise indicated).[8]
Intermediate appellate court decisions from this State also have addressed the measure of damages for injury to real property. In Jackson v. Bohlin, 16 Ala. App. 105, 75 So. 697 (1917), the plaintiff sought damages for trespass to his property. The Court of Appeals stated the measure of damages for injury to real property as follows:
"`In actions for injury to real property, when the injury is done to realty itself, the measure of damages is the difference in the value of the land before and after the trespass, or in some cases the amount necessary to restore the property to the condition in which it was before the trespass was committed.'
*800 "Where the injury is such as may be remedied by restoring the property to its condition when the trespass was committed, and the cost of restoring the property is less than the depreciation in the value of the land, and the wrong is not attended with such circumstances of aggravation as to authorize the imposition of exemplary damages, and consequential damages are not recoverable in the action under the principles hereinafter stated, the cost of restoring the property is the measure of damages."
16 Ala.App. at 108, 75 So. at 700 (emphasis added; citations omitted).
In City of Birmingham v. Kircus, 19 Ala.App. 614, 99 So. 780 (1924), the defendant appealed a judgment in the plaintiff's favor in an action by the plaintiff to recover for damage allegedly caused by the defendant's construction and maintenance of sewers and drains. In addressing the measure of damages for injuries to real property, the Court of Appeals stated:
"When the damage caused by the erection of a dam or sewer diverting or concentrating the water from its natural flow is recurring, the right of action for each recurring injury is in the owner of the land at the time the injury results. Where the injury is permanent, by a casual or recurrent overflow of water on land, the measure of damages is the difference between the market value of the land with and without the injury at the time thereof. But in cases of temporary or occasional injuries, and where the damage may be repaired at less costs than the diminution in value, the measure of damages is the costs of restoring the land to its former condition."
19 Ala.App. at 618, 99 So. at 784 (emphasis added; citations omitted).
In addition to the foregoing, several legal treatises indicate that the measure of damages for abatable injuries to real property generally is limited by the diminution in the value of the property caused by the complained-of injury. In 25 C.J.S. Damages § 135 (2002), we find the following statement:
"Where the injury to real property is merely temporary, or where the property can be restored to its original condition, the measure of damages may be, or should include, the cost of repairs or restoration, as where the injury is susceptible of remedy at a moderate or reasonable expense and the cost of restoration may be shown with reasonable certainty, or where the cost of restoration is less than the diminution in the value of the property. . . .
"The cost of restoration, however, cannot be adopted as the measure of damages where the cost of restoring the property would exceed the value thereof in its original condition, or the depreciation in the value thereof, or the actual damage sustained by plaintiff, or where restoration is impracticable."
(Footnotes omitted.) Similarly, 22 Am. Jur.2d Damages § 265 (2003) states:
"Most courts agree that when the injuries to real estate are found to be temporary or reparable, the diminished market value of the property will not be used as the measure of recovery. For the purposes of measuring damages for injury to real property, a diminution in value may be determined by the cost of repairing the damage, provided that that cost does not exceed the former value of the property and provided also that the repairs do not enhance the value of the property over what it was before it was damaged.
". . . .
"Along with decisions stating that restoration cost should be awarded only if it is less than the difference in the value of the property before and after the injury, some authorities hold that the measure *801 of damages is either the diminution in the rental value unless the land can be restored to its former condition for a lesser sum, or it is the [diminution in] rental value plus the cost of restoration where this is less than the depreciation in the value of the premises."
(Footnotes omitted.)
We hold that the appropriate measure of direct, compensatory damages to real property generally is the diminution in the value of that property, even when the cost to remediate the property exceeds the diminution in the value thereof. That is the measure of damages to be applied in the present case. In so holding, we need not determine whether the injury to the Poffenbargers' property is more appropriately termed "permanent" or "temporary"; regardless of which term is applied, the measure of damages would be the same because the cost to remediate the property exceeds the diminution in the value thereof.[9]
The Poffenbargers argue that "[l]and . . . is unique, non-fungible, and irreplaceable," Poffenbargers' brief at 43 (citing Downing v. Williams, 238 Ala. 551, 554, 191 So. 221, 222-23 (1939) (noting that "`a specific tract [of land] is unique and impossible of duplication by the use of any amount of money'") ), and, accordingly, that the "transient `fair market value' of land" should not be all that stands between the land and its destruction. The Poffenbargers also argue that "compensatory damages should make the innocent victim whole, while polluters should have a disincentive to pollute," Poffenbargers' brief at 49, and that the rule of law affirmed here today will provide no incentive to potential polluters to act responsibly in maintaining and repairing their systems and equipment because it could be cheaper to take the risk that, if sued, they might have to pay a landowner no more than the market value of affected land.
We are not unsympathetic to the concerns reflected in the Poffenbargers' arguments. Compensatory damages should indeed be adequate to make the victim whole. As this Court noted in Borland, the "underlying proposition for measuring damages in trespass cases [is that] [t]he [p]laintiff is ordinarily entitled to an amount which will compensate him for actual damages sustained." 369 So.2d at 530. Awarding money damages in an amount many times over the actual value of the land at issue, however, may not serve the end of making the victim whole as much as it raises the specter of a windfall *802 to a victim who, in many cases, will have little or no incentive to spend those moneys to repair land that, even upon full remediation, will be worth only a small fraction of the money so expended. The rule we apply today, by definition, serves to make victims of pollution whole, at least in an objective or pecuniary sense, without allowing for economic waste.
What the rule we apply today admittedly does not do, however, is address intangible or subjective loss that may accompany the contamination or other injury to a specific tract of land. In some cases, this rule also admittedly will not provide a disincentive to polluting another's land. In these respects, we note that the Rule 5 question before us is limited to the general,[10] common-law measure of direct, compensatory damages. We do not have before us the separate questions of consequential and punitive damages. Nor do we have before us the question whether and under what circumstances the separate remedy of injunctive relief may be available to require a trespasser to remove objects or substances tortiously placed on the affected land.[11] We also note that a variety of environmental laws . . . have been adopted by our national and state legislatures.[12]
The Poffenbargers also argue that measuring their compensatory damages by the diminution in value of their real property will, in effect, facilitate a taking of their property without their consent in violation of § 23 of the Alabama Constitution of 1901. Among other things, § 23 prohibits the "taking of private property for private use without the owner's consent." Section 23, however, is a limitation on governmental action, not private action, and therefore is inapplicable to the present case. See id.; Gober v. Stubbs, 682 So. 2d 430, 433 (Ala.1996) (The power of eminent domain "is a power inherent in every sovereign state. Section 23 merely places certain limits on the exercise of the power of eminent domain.").
It is true, as the Poffenbargers point out, that this Court held in Borland that allowing a defendant to escape payment for injuries it caused to land simply because *803 of market factors unrelated to the defendant's tortious conduct "would permit private condemnation, which, unquestionably, is impermissible." The holding in Borland is inapposite to the present case, however. The issue in Borland was whether a plaintiff would be prevented from recovering for injury to his real property caused by the tortious actions of an adjacent landowner because additional, nontortious actions of the defendant increased the overall value of the plaintiff's real property. This Court answered that question in the negative, in effect holding that in order to determine the diminution in value of real property, one must isolate the inquiry to the effect upon the value of the property caused by the tortious conduct. The rule that we apply today is not inconsistent with Borland, does not allow a defendant to escape responsibility for injuring a plaintiff's property, and does not permit "private condemnation."
Finally, the Poffenbargers argue that limiting compensatory damages in the present case to the diminution in fair market value of their real property would contravene the guaranty in § 13 of the Alabama. Constitution that every person has a remedy "for any injury done him, in his lands, goods, person or reputation." We disagree. Our holding in this case allows the Poffenbargers to seek a remedy in the form of damages measured by their objective, pecuniary loss.
IV. Conclusion
Based on the foregoing, we find that the proper measure of direct, compensatory damages for any injury to the Poffenbargers' real property is the diminution in the fair market value of that real property as a result of the alleged injury. We therefore affirm the trial court's judgment.
AFFIRMED.
COBB, C.J., and SEE, LYONS, STUART, SMITH, and PARKER, JJ., concur.
WOODALL and BOLIN, JJ., dissent.
WOODALL, Justice (dissenting).
In my opinion, this Court, in granting the Poffenbargers permission to appeal, has ignored the plain requirement of Rule 5, Ala. R.App. P., that the order appealed from involve "a controlling question of law." Consequently, I repeat what I have previously said under similar circumstances:
"Under Rule 5, Ala. R.App. P., an appeal by permission may be allowed where an `interlocutory order involves a controlling question of law as to which there is substantial ground for difference of opinion.' (Emphasis added.) Here, although the interlocutory order involves a question of law, it certainly does not involve a `controlling' question of law. Therefore, I must respectfully dissent, because I would dismiss the appeal without prejudice."
City of Prattville v. Corley, 892 So. 2d 845, 852 (Ala.2003) (Woodall, J., dissenting).
In urging this Court to grant the Poffenbargers permission to appeal, Merit stated:
"Defendants agree that an immediate appeal would materially advance the termination of this litigation and avoid future litigation. [The Poffenbargers] are likely to be more amenable to settlement if this Court affirms the trial court's order. Additionally, an affirmance would prevent litigation by other owners of oil field property having unreasonable expectations of receiving windfall awards with no requirement that the money be spent on remediation."
As I stated in Corley, "[w]hile [an] interest in settlement is understandable, and while pretrial settlements are to be encouraged, *804 those factors do not make the issue presented 'controlling' for purposes of Rule 5." 892 So.2d at 852 (Woodall, J., dissenting).
BOLIN, J., concurs.
NOTES
[1] The record reflects that this 32-acre tract of land was, itself, the subject of an oil and mineral rights lease between the Poffenbargers and a third-party lessee.
[2] Merit and Hertel's motion also sought a partial summary judgment on the question of whether the Poffenbargers were entitled to recover damages for any mental anguish they may have suffered.
[3] In contrast, the defendants have proposed two plans for the remediation of the Poffenbargers' property. One would cost between $10,000 and $15,000; the other would cost between $40,000 and $56,000.
[4] There was evidence that the oil spill affected only 5 of the 32 acres in the tract at issue. The change in value from $38,628 to $32,628 was based upon the assumption that the 5 contaminated acres lost all their value, while the remainder of the acreage lost no value, as a result of the spill.
[5] The trial court also entered a summary judgment in favor of Merit and Hertel on their assertion that the Poffenbargers are not entitled to mental-anguish damages. The present appeal does not involve that portion of the trial court's judgment.
[6] The trial court's decision to eliminate the language making its order final under Rule 54(b) was appropriate. As this Court recently stated, "`[F]or a Rule 54(b) certification of finality to be effective, it must fully adjudicate. at least one claim or fully dispose of the claims as they relate to at least one party.'" Scrushy v. Tucker, 955 So. 2d 988 (Ala.2006) (quoting Haynes v. Alfa Fin. Corp., 730 So. 2d 178, 181 (Ala.1999)) (emphasis added).
[7] References to "temporary" and "permanent" injury to land in many of the cases referenced in this opinion may relate not just to whether the injury naturally will abate, i.e., correct itself, within some period of time, but whether the injury is reparable by human intervention. In Sloss-Sheffield Steel & Iron Co., this Court stated:
"Where permanent (that is, irreparable) injury is done to the freehold, it would seem that the only proper measure of damages is the difference between the value of the premises with and without such injury at the time thereof. . . .
"But where the injury is not permanent, and the premises may be restored to their original condition, a different rule prevails in this state."
181 Ala. at 581, 61 So. at 936 (emphasis added). In Goodyear Tire & Rubber Co. v. Gadsden Sand & Gravel Co., 248 Ala. 273, 279, 27 So. 2d 578, 584 (1946), this Court referenced injuries to land that are "not permanent, but reparable." One writer, taking note, of Alabama decisions indicating that, "[i]f the cost of restoration plus loss of use exceeds the diminution in value of the land, . . . the distinction [between permanent and temporary injuries] becomes moot because damages will be limited to the diminution in value," expressly suggests that "whether an injury is temporary or permanent for the purpose of measuring damages may be a matter of economics, determinable by comparing the cost of restoration to the diminution in value." William W. Watts, Common Law Remedies in Alabama for Contamination of Land, 29 Cumb. L.Rev. 37, 47 (1999).
[8] The Borland Court spoke of whether "the alleged intrusion" is of a "permanent" nature or a "continuing" nature. It also made reference to whether the "injury" is permanent or continuing. We note that, regardless of whether the trespass itself is permanent (i.e., whether some object or substance placed upon the land by the trespasser will remain on the land permanently), the injury to the land may be either "permanent" or "temporary." If the injury is permanent, the rule of damages described in the penultimate paragraph of the above-quoted passage is applicable; if the injury is temporary, the rule of damages described in the last-quoted paragraph would be applicable.
[9] In deciding the issue presented in this casethe measure of direct, compensatory damages generally recoverable for injury to real propertywe are not presented with, and we do not intend to address, the question whether this rule admits of any exceptions. See generally, e.g., Christopher E. Brown, Comment, Dump It Here, I Need the Money: Restoration Damages for Temporary Injury to Real Property Held for Personal Use, 23 B.C. Envtl. Aff. L.Rev. 699 (1996) (citing authorities supportive of the proposition that compensatory damages may be awarded for loss of value personal to a landowner where the diminution in market value would not fully compensate the landowner for his or her loss, and that such recovery would not be inconsistent with the principles prohibiting awards that constitute economic waste or windfalls to the recipient). See also Restatement (Second) of Torts § 929 ant. b (1979) (noting that, if the cost of replacing the land in its original condition is disproportionate to the diminution in the value of the land caused by the trespass, damages are measured only by the difference between the value of the land before and after the harm, "unless there is a reason personal to the owner for restoring the original condition"). The Poffenbargers do not advance any such exception. Nor do they argue that the diminution in the fair market value of the land as the appropriate measure of damages should yield to the cost of remediation as the appropriate measure in cases where the latter is not disproportionate to the former.
[10] As already noted (see note 9, supra), we do not have before us the question whether this general rule admits of any exceptions. Moreover, we do not have before us the separate question of punitive damages, or for that matter any question regarding consequential or incidental damages.
[11] "Trespass is both a legal action and an equitable action. . . ." Storey v. Patterson, 437 So. 2d 491, 493-95 (Ala.1983) (recognizing that, in those cases where an injury to real property is such that pecuniary compensation is inadequate, "`a court of equity will interfere and award an injunction to prevent such injuries'" (quoting Smith v. Morris, 181 Ala. 279, 281, 61 So. 276, 276-77 (1913), citing Hooper v. Dora Coal Mining Co., 95 Ala. 235, 10 So. 652 (1892)) ). In an appropriate case, the equitable remedy of an injunction can be an appropriate form of relief by which a thing or a substance tortiously placed on another's land can be removed or by which an injury to property otherwise is corrected and the property restored to its pre-trespass condition. See West Town Plaza Assocs. v. Wal-Mart Stores, Inc., 619 So. 2d 1290, 1295-98 (Ala. 1993); Alabama Power Co. v. Drummond, 559 So. 2d 158, 162-63 (Ala.1990) (Houston, J., dissenting). The question presented in this appeal, however, does not require us to address the availability of injunctive relief.
[12] See generally, e.g., the Clean Water Act, 33 U.S.C. §§ 1251-1386 (2001); the Oil Pollution Act of 1990, 33 U.S.C. § 2702(a) (1994); the Federal Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. §§ 6901-6992(k) (1994); the Clean Air Act, 42 U.S.C. §§ 7401-7671q (2003); the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9601-9675 (1994); 40 C.F.R. parts 1-1700 (2006); Ala.Code 1975, §§ 22-22-1 to 22-40A-24; Ala. Admin. Code (Alabama Department of Environmental Management), Chapter 335. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595751/ | 399 So. 2d 1077 (1981)
Hugh HARDAGE, Appellant,
v.
CITY OF JACKSONVILLE BEACH, Paul Brown and Dale Carson, Appellees.
No. WW-406.
District Court of Appeal of Florida, First District.
June 19, 1981.
*1078 Hugh A. Carithers, Jr., of Sheppard & Carithers, P.A., Jacksonville, for appellant.
Stephen Stratford, of Stratford & Booth, P.A., Jacksonville, for appellees.
PER CURIAM.
Appellant owns a licensed liquor establishment, the Mai Kai Lounge, in Jacksonville Beach, Florida. He challenges a City of Jacksonville Beach ordinance which bans the sale of alcoholic beverages on Sunday with certain exceptions. The exceptions allow hotels and motels with 100 or more guest rooms, restaurants receiving the majority of their gross annual income from the sale of food, and private clubs to sell alcoholic beverages on Sunday for consumption on premises only. Appellant admits he does not fit within one of the exceptions to the ordinance.
He challenges the ordinance on two grounds. First, the ordinance is overbroad because there is no valid legislative distinction between his place of business and those businesses allowed to sell liquor on Sundays. Second, the City does not have the power to regulate the manner of sale (restrict consumption to on premises only) because the laws of Florida allow a city to regulate only the hours, location, and sanitary conditions of establishments licensed to sell liquor. We affirm.
The Florida Legislature has empowered the cities to regulate the location of liquor establishments, the hours the establishments may stay open, and the sanitary conditions of these establishments. Section 562.45(2), Fla. Stat. (1979). Under the power to regulate "location" of liquor establishments, municipalities may permit one or more types of sale in a designated area without being required to permit all other modes of sale therein. Gross v. City of Miami, 62 So. 2d 418 (Fla. 1953). In City of Miami Beach v. State, 129 So. 2d 696 (Fla. 3rd DCA 1961), the court cited with approval Gross v. City of Miami, supra, in upholding an ordinance which excluded certain types of liquor establishments within certain zones of the city. In Casey v. City of Miami Beach, 141 Fla. 793, 193 So. 827 (Fla. 1940), an ordinance was upheld which restricted liquor vendors to being open nineteen hours per day while allowing "night clubs" to remain open twenty-four hours per day. Furthermore, in State v. Noel, 124 Fla. 852, 169 So. 549 (Fla. 1936), the Florida Supreme Court upheld an ordinance which prohibited the sale of liquor between the hours of 10:00 p.m. and 6:00 a.m. However, hotels having 100 or more guest rooms were allowed to sell liquor between 10:00 p.m. and midnight on week days.
Based on the above authority, the City of Jacksonville Beach was acting within its statutory power in restricting the Sunday sale of liquor in the ordinance challenged below.
It is well-settled in this jurisdiction that in the exercise of its police power a municipality may regulate and restrict liquor vendors in the operation of their businesses. In so doing the municipality has a wide discretion in classifying such liquor vendors and may enact restrictions and regulations to that end, so long as such restrictions and regulations are on a reasonable and practicable basis as to each classification sought to be regulated.
*1079 City of Miami Beach v. Cohen, 47 So. 2d 565 (Fla. 1950). Since there is a rational basis for the city's ordinance restricting liquor sales on Sunday to hotels, motels, restaurants, and private clubs, we affirm the trial judge's order holding this ordinance constitutional.
Appellant failed to meet his burden of demonstrating no rational basis for the legislative distinctions in the ordinance. When reviewing a city ordinance "the motives of the commission and the reasons for which it induced passage of the ordinance are irrelevant." City of Pompano Beach v. Big Daddy's, Inc., 375 So. 2d 281 (Fla. 1979). All presumptions are in favor of an ordinance's validity and all ordinances will be construed, if possible, to give a result which renders them constitutionally valid. High Ridge Management Corp. v. State of Florida, 354 So. 2d 377 (Fla. 1977). If reasonable argument exists on the question of whether an ordinance is arbitrary or unreasonable, the legislative will must prevail. City of Miami Beach v. Cayfetz, 92 So. 2d 798 (Fla. 1957).
As to appellant's second point on appeal, we hold he has no standing to challenge that portion of the ordinance which restricts liquor sales to consumption on premises only. Appellant is in that group of liquor vendors who are not allowed to sell liquor on Sunday. Therefore, he is not affected by that portion of the ordinance which restricts those establishments allowed to sell liquor on Sunday to sales for consumption on premises only. To have standing to challenge a portion of an ordinance, appellant must be affected by that portion he seeks to attack. 10 Fla.Jur.2d Constitutional Law § 62.
One cannot raise an objection to the constitutionality of a part of a statute, unless his rights are in some way injuriously affected thereby,...
State ex rel. Clarkson v. Phillips, 70 Fla. 340, 70 So. 367 (Fla. 1915). Since appellant is not affected by that portion of the ordinance he challenges in his second point on appeal, he has no standing to raise his second point on appeal.
Accordingly, the trial court's order is AFFIRMED.
McCORD and LARRY G. SMITH, JJ., and LILES, WOODIE A., (Retired) Associated Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595757/ | 399 So. 2d 297 (1981)
MUSCLE SHOALS NATIONAL BANK
v.
Norma J. HALLMARK, et al.
79-888.
Supreme Court of Alabama.
May 29, 1981.
Charles W. Cochran, III of Keller & Cochran, Florence, for appellant.
Charles D. Rosser of Rosser & Munsey, Tuscumbia, for appellees.
TORBERT, Chief Justice.
Truman C. Hallmark and his wife, Norma J. Hallmark, obtained a loan from Muscle Shoals National Bank (Muscle Shoals) on July 22, 1975. As security for the loan, they executed a promissory note and a second mortgage to Muscle Shoals on a parcel of real property situated in Colbert County, and in addition, Muscle Shoals took a security interest in fixtures and equipment owned by Truman C. and Norma J. Hallmark d/b/a Captain Hook's restaurant. As further security for the loan, Muscle Shoals required the execution of guaranty agreements by appellees Thompson, Tillman, and Martin.
In the fall of 1975, it was discovered that First Colbert National Bank (First Colbert) had also taken a security interest in fixtures and equipment being used in the operation of Captain Hook's restaurant. After discussion among the parties involved, Muscle Shoals released its security interest in the restaurant equipment and fixtures in favor of First Colbert.
Muscle Shoals purchased the first mortgage on the real property from Sheffield Federal Savings and Loan Association. In 1977, Truman C. Hallmark filed for bankruptcy, and both the promissory note secured by the first mortgage and the one secured by the second mortgage were discharged. Shortly thereafter, Muscle Shoals conducted a mortgage foreclosure sale on the real property on June 23, 1977. At the foreclosure sale, Muscle Shoals bid in the sum of $56,550.79 (amount of the loan plus interest, attorney's fees, and expenses of the sale). There were no other bidders, so a mortgage foreclosure deed was executed to Muscle Shoals and recorded June 29, 1977.
On November 15, 1978, Muscle Shoals conveyed the property to purchasers, Bobby and Mary Frances Clardy, for the sum of $51,000.00. On December 14, 1978, it filed suit against Norma J. Hallmark and against the guarantors, Roy D. Thompson, Mrs. Oscar H. Tillman, and Robbie Martin, for the deficiency. Defendants failed to answer, and a default was entered against them on February 13, 1979. On February 15, 1979, a judgment was entered in appellant's favor in the amount of $12,744.27. The original defendants filed a Motion for Relief from Judgment on April 27, 1979. After a hearing on this motion, the trial court denied relief to the appellees. The appellees then filed a Motion for a New Trial, or in the Alternative, to Alter or Vacate a Judgment. On June 13, 1980, the trial court entered an order vacating its previous order and entered a judgment in favor of appellees based on the fact that foreclosure had occurred. Hence, this appeal.
*298 Appellants urge us to adopt a rule of law that would allow a mortgage holder who, at a foreclosure sale, bids in the property for the full amount of the debt, including expenses and attorney's fees, thus relieving the maker from any further obligation, to enforce a guaranty agreement against the guarantors of the note when the property is later sold for less than the amount of the debt. We decline to adopt such a rule; thus the trial court is due to be affirmed.
It is well settled in Alabama that proceeds from the sale of mortgaged property must be applied to the debt secured by the property. See, Pearce v. Mills, 190 Ala. 616, 67 So. 581 (1941); Strickland v. Hardie, 82 Ala. 412, 3 So. 40 (1887); Johnson v. Thomas, 77 Ala. 367 (1885). Therefore, once the mortgaged property was sold upon foreclosure, Muscle Shoals was bound to apply the proceeds to the debt. Had the sale yielded an amount in excess of the debt, the Hallmarks would have been entitled to such excess amount. Continental Casualty Co. v. Brawner, 227 Ala. 98, 148 So. 809 (1933); Hayes v. Woods, 72 Ala. 92 (1882). The result is unchanged by the fact that the purchaser was the mortgagee. See, Pruett v. First National Bank of Anniston, 229 Ala. 441, 157 So. 846 (1934). Furthermore, payment or satisfaction of the debt discharged the guarantors. Shur-Grain Feed Division William Davies Co. v. Huntsville Production Credit Association, 372 So. 2d 1317 (Ala.Civ.App.1979). Therefore, foreclosure operated to release both the principal debtors and the guarantors.
Appellants argue also that the trial court erred in granting the appellees' Motion for Relief from Judgment. This argument however, is based on the assumption that appellees did not have a meritorious defense to the complaint. Since we find the appellees' argument has merit, the contention of the appellants must fail.
Because of the foregoing, the trial court is due to be affirmed.
AFFIRMED.
FAULKNER, ALMON, EMBRY and ADAMS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1595886/ | 240 Wis. 2d 255 (2000)
2000 WI App 263
621 N.W.2d 922
Gregory LANE and Christy Lane, Plaintiffs-Respondents,[]
v.
James B. WILLIAMS, Defendant,
v.
FARMERS INSURANCE EXCHANGE, Defendant-Appellant.
No. 00-0852.
Court of Appeals of Wisconsin.
Submitted on briefs October 31, 2000.
Decided November 28, 2000.
*257 On behalf of the defendant-appellant, the cause was submitted on the briefs of William F. Bauer, John E. Keckhaver and Laura N. Whipple of Coyne, Niess, Schultz, Becker & Bauer, S.C., Madison.
*258 On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Ardell W. Skow and Martha H. Heidt, Baldwin.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
¶ 1. PETERSON, J.
Farmers Insurance Exchange appeals an order awarding costs pursuant to WIS. STAT. ch. 814[1] and § 807.01(3) to Gregory and Christy Lane following an arbitration award. Farmers argues that: (1) no costs are awardable under WIS. STAT. § 814.01 following an arbitration proceeding; (2) the circuit court had no discretion to award costs under WIS. STAT. § 814.036; (3) the arbitration agreement did allow for an award of costs; and (4) double costs are not available under WIS. STAT. § 807.01(3). We agree and reverse.
BACKGROUND
¶ 2. The Lanes commenced this action in circuit court against Farmers under the uninsured motorist section of their automobile insurance policy. The policy contained an arbitration clause that allowed either Farmers or the Lanes to bring the issue of coverage before an arbitration panel. The policy required Farmers to select and pay the cost of an arbitrator, the Lanes to select and pay the costs of an arbitrator, and for the two parties to select and share the costs of a third arbitrator. The arbitration clause also stated that all other costs of arbitration "will be shared equally."
¶ 3. The circuit court action was stayed so that arbitration could proceed. The arbitration agreement required that "[l]ocal court rules governing procedures *259 and evidence will apply." The arbitration panel awarded $15,675.50 to Gregory Lane and $48,316 to Christy Lane.
¶ 4. The Lanes moved the circuit court for an order confirming the arbitration award pursuant to WIS. STAT. § 788.09. Christy Lane also moved for double costs and interest pursuant to WIS. STAT. § 807.01, because Farmers had not accepted a $45,000 offer of settlement served on her behalf. Gregory Lane moved for taxable costs and interest on the arbitrators' award.
¶ 5. The circuit court ordered that judgment be entered on the arbitration award and that the Lanes be awarded costs, pursuant to WIS. STAT. §§ 814.01(1), 814.036 and 807.01(3). This appeal followed.
STANDARD OF REVIEW
[1]
¶ 6. We review an arbitration award without deference to the trial court. Our function is to insure that the parties received the arbitration they bargained for. See City of Madison v. Local 311, Int'l Ass'n of Firefighters, AFL-CIO, 133 Wis. 2d 186, 190, 394 N.W.2d 766 (Ct. App. 1986). The circuit court may modify an award only on the grounds specified by statute. See McKenzie v. Warmka, 81 Wis. 2d 591, 603, 260 N.W.2d 752 (1978).
[2]
¶ 7. In this case, however, it is not review of the arbitration award that Farmers seeks. Rather, it asks that we reverse the circuit court's ruling that found the Lanes were permitted to recover costs and interest on the award. These issues require us to construe WIS. STATS. §§ 814.01, 814.036 and 807.01. The construction of a statute or the application of a statute to a particular set of facts is a question of law that we review *260 independently. See Minuteman, Inc. v. Alexander, 147 Wis. 2d 842, 853, 434 N.W.2d 773 (1989).
DISCUSSION
I. WISCONSIN STAT. § 814.01
¶ 8. WISCONSIN STAT. § 814.01[2] provides the general framework for awarding costs to a prevailing party upon completion of the litigation process. See Finkenbinder v. State Farm Mut. Auto. Ins. Co., 215 Wis. 2d 145, 151, 572 N.W.2d 501 (Ct. App. 1997). Farmers argues that statutory costs are not available after an arbitration proceeding. We agree.
¶ 9. The circumstances involved in Finkenbinder and Briggs v. Farmers Ins. Exchange, 2000 WI App 40, 233 Wis. 2d 163, 607 N.W.2d 670, are similar to those presented here and are controlling.[3] In Finkenbinder, the plaintiff was struck by a car while she was walking *261 across the street. She filed suit in circuit court against her underinsurance carrier. The insurer successfully moved to compel arbitration. Following arbitration, the plaintiff returned to circuit court seeking costs under WIS. STAT. ch. 814.
¶ 10. We held that "the statutory scheme of [WIS. STAT.] ch. 814 envisions a `prevailing party' as one who is successful in a litigated trial court proceeding, not one who succeeds in obtaining an award before an arbitrator." Finkenbinder, 215 Wis. 2d at 151. Finkenbinder argued that she successfully litigated a trial court proceeding because she originally filed her claim in circuit court and her award was also finally confirmed there. See id. at 152. However, we rejected that argument and concluded that "it is not the beginning and end points of action that are dispositive; rather, the determining factor is whether the action was the subject of a litigated trial court proceeding." Id.
¶ 11. In Briggs, we reaffirmed the holding in Finkenbinder. We stated that the fundamental flaw in awarding costs is that the circuit court does not have any statutory authorization to consider assessing costs where the claim was addressed in arbitration. See Briggs, 2000, WI App 40 at ¶ 12, (citing Finkenbinder, 215 Wis. 2d 152).
[3]
¶ 12. In the present case, the circuit court awarded the Lanes all statutory costs after an arbitration award. However, as our decisions in Finkenbinder and Briggs hold, no statutory costs are available after arbitration. The Lanes succeeded in obtaining an award before an arbitrator, not in a litigated trial court proceeding. WISCONSIN STAT. § 814.01 does not allow costs to be awarded for a claim that was addressed in arbitration.
*262 II. WISCONSIN STAT. § 814.036
¶ 13. Farmers argues that the circuit court also did not have discretionary authority to award costs under WIS. STAT. § 814.036.[4] Farmers contends that the statute does not give the circuit court an independent basis for awarding costs. We agree.
[4]
¶ 14. The Lanes claim that the circuit court did have discretionary authority to award costs under WIS. STAT. § 814.036. However, we rejected an identical argument in Briggs. See Briggs, 2000 WI App 40 at ¶ 12 n.8. We held that the omnibus costs provision "only gives the court discretion as to when it may allow costs, not as to what costs may be allowed." Id. (quoting Kleinke v. Farmers Coop. Supply & Shipping, 202 Wis. 2d 138, 149, 549 N.W.2d 714 (1996)). Section 814.036 does not give the circuit court authority to award "costs which are not explicitly authorized by statute." Id. An award of statutory costs after arbitration is not explicitly authorized by statute and, therefore, is not within the circuit court's discretion. See Finkenbinder, 215 Wis. 2d at 151-52. As a result, the circuit court erred by awarding costs pursuant to § 814.036.
III. Arbitration Agreement
¶ 15. We next address whether the arbitration agreement itself provides for statutory costs. The arbitration provision mandated that "local court rules governing procedures and evidence will apply." The Lanes argue that the provisions in the arbitration *263 agreement allow for taxable costs. Thus, they reason that the terms of the arbitration agreement allow costs pursuant to WIS. STAT. ch. 814. We disagree.
[5]
¶ 16. We rejected the identical argument in Briggs, 2000 WI App 40 at ¶ 12. The arbitration provision at issue in Briggs contained the same language as the one in the present case regarding the application of local court rules. See id. Briggs controls and we reject the Lanes' argument.
IV. WISCONSIN STAT. § 807.01(3)
[6]
¶ 17. Finally, we address the circuit court's award of double the taxable costs to Christy Lane, pursuant to WIS. STAT. § 807.01(3).[5] The Lanes argue that Farmers waived the issue by failing to argue it in their initial brief. Farmers argues that it has not waived the issue. According to Farmers, no costs are awardable. Because no costs are awardable, there are no costs to be doubled. We agree with Farmers that it has preserved the issue by this argument. However, we decide whether double costs are appropriate after arbitration on other grounds.
*264 [7]
¶ 18. WISCONSIN STAT. § 807.01(3) allows the plaintiff to serve the defendant a written offer of settlement "at least twenty days before trial." However, because of the arbitration provision, there was no trial in this case. The rationale in Finkenbinder and Briggs regarding WIS. STAT. ch. 814 also applies to § 807.01(3). In those cases we held that ch. 814 does not allow costs because there was no "prevailing party" in a "litigated trial court proceeding." Finkenbinder, 215 Wis. 2d at 151; Briggs, 2000 WI App 40 at ¶ 7.[6] Similarly, to use the words of § 807.01(3), there was no "trial." Because there was no "trial," § 807.01(3) does not apply. Christy Lane is not entitled to double costs.
By the Court. Order reversed.
NOTES
[] Petition to review denied.
[1] All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.
[2] WISCONSIN STAT. § 814.01 reads as follows: "(1) Except as otherwise provided in this chapter, costs shall be allowed of course to the plaintiff upon a recovery."
[3] The Lanes argue that Finkenbinder and Briggs were decided incorrectly and that they ignore the plain language of WIS. STAT. § 814.01(1). Finkenbinder v. State Farm Mut. Auto. Ins. Co., 215 Wis. 2d 145, 151, 572 N.W.2d 501 (Ct. App. 1997); Briggs v. Farmers Ins. Exchange, 2000 WI App 40, 233 Wis. 2d 163, 607 N.W.2d 670. The Lanes request this court to certify this appeal to the supreme court to determine whether costs following an arbitration proceeding are allowed pursuant to WIS. STAT. § 814.01. The supreme court denied a petition for review in Briggs, thus suggesting that a certification may not be accepted in this case. We, therefore, choose to address the appeal on its merits. We may not overrule, modify or withdraw language from a published court of appeals opinion; only the supreme court may do so. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997).
[4] WISCONSIN STAT. § 814.036 provides: "If a situation arises in which the allowance of costs is not covered by ss. 814.01 to 814.035, the allowance shall be in the discretion of the court."
[5] WISCONSIN STAT. § 807.01(3) reads as follows:
After issue is joined but at least 20 days before trial, the plaintiff may serve upon the defendant a written offer of settlement for the sum, or property, or to the effect therein specified, with costs. If the defendant accepts the offer and serves notice thereof in writing, before trial and within 10 days after receipt of the offer, the defendant may file the offer, with proof of service of the notice of acceptance, with the clerk of court. If notice of acceptance is not given, the offer cannot be given as evidence nor mentioned on the trial. If the offer of settlement is not accepted and the plaintiff recovers a more favorable judgment, the plaintiff shall recover double the amount of the taxable costs.
[6] Whether double costs were properly awarded after arbitration under WIS. STAT. § 807.01 was not decided in Briggs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590875/ | 14 So. 3d 157 (2008)
MADISON COUNTY BOARD OF EDUCATION
v.
Laura WILSON.
2050222.
Court of Civil Appeals of Alabama.
August 29, 2008.
Cynthia K. Thompson of Johnston, Moore, Maples & Thompson, Huntsville, for appellant.
Stan McDonald, Huntsville; Frederick L. Fohrell and Robert C. Lockwood of Wilmer & Lee, P.A., Huntsville; and Sam Heldman of Gardner, Middlebrooks, Gibbons, Kittrell, Olsen, Walker & Hill, P.C., Washington, D.C., for appellee.
David R. Boyd, Dorman Walker, and JoClaudia Moore of Balch & Bingham, LLP, Montgomery, for amicus curiae Alabama Association of School Boards, in support of the appellant.
Gregory B. Stein of Stein, Brewster & Pilcher, L.L.C., Mobile, for amicus curiae Alabama Education Association, in support of the appellee.
On Rehearing Ex Mero Motu
PER CURIAM.
On April 22, 2008, this court issued an order placing this case on rehearing ex mero motu. We are now withdrawing that order.
ORDER OF APRIL 22, 2008, WITHDRAWN.[*]
THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.
BRYAN, J., dissents, with writing.
BRYAN, Judge, dissenting.
In this case, this court previously granted an appeal from a hearing officer's decision, pursuant to § 16-24-10(b), Ala.Code 1975, a part of the Teacher Tenure Act, § 16-24-1 et seq., Ala.Code 1975 ("the Act"). Madison County Bd. of Educ. v. Wilson, 984 So. 2d 1153 (Ala.Civ.App.2006). In pertinent part, § 16-24-10(b) provides that "[t]he decision of the hearing officer shall be affirmed on appeal unless the Court of Civil Appeals finds the decision arbitrary and capricious, in which case the court may order that the parties conduct another hearing consistent with the procedures of this article." Because this court found the hearing officer's order to be arbitrary and capricious, we "reverse[d] the hearing officer's decision and remand[ed] the cause for the parties to conduct another hearing consistent with the provisions of the Teacher Tenure Act." Wilson, 984 So.2d at 1160. Our supreme court subsequently affirmed this court's judgment, stating:
"The hearing officer's application of standards of `just cause for termination' from collective-bargaining cases to Wilson's case resulted in a decision that was arbitrary and capricious. Therefore, the Court of Civil Appeals correctly reversed his decision and remanded the case for a new hearing. We affirm its judgment. The new hearing shall be *158 conducted pursuant to the provisions of the [Teacher Tenure] Act."
Ex parte Wilson, 984 So. 2d 1161, 1171 (Ala.2007). Neither our judgment nor the judgment of the supreme court specified whether a new hearing officer was to be selected upon remand.
On March 26, 2008, Wilson filed in this court a "motion for clarification of order." In that filing, Wilson requested that this court clarify whether a new hearing officer should be selected to conduct the hearing upon remand.
"The cardinal rule in statutory construction is to give effect to the legislative intent as clearly expressed in the statute or as may be inferred from the language used as well as from the reason for the act." Ex parte Berryhill, 801 So. 2d 7, 11 (Ala.2001) (emphasis omitted). I note that the legislature, in amending the Act in 2004, intended "to streamline the contest and appeal processes for teachers." Title to Act No. 2004-566, Ala. Acts 2004. Remanding the case for a new hearing before the original hearing officer would be consistent with this intention and would be judicially efficient, whereas holding a hearing before a new hearing officer unfamiliar with the case would undermine this intention. Further, § 16-24-10(b) permits this court to remand the case for "another hearing," but that section does not mention "another hearing officer." Accordingly, I interpret that portion of the Act calling for "another hearing" as requiring remand to the original hearing officer for a new hearing.
Because I would place the appeal on rehearing ex mero motu in order to clarify this court's intention that the original hearing officer should conduct the hearing on remand, I respectfully dissent.
NOTES
[*] Note from the reporter of decisions: On March 26, 2008, Laura Wilson filed a motion for clarification of the Court of Civil Appeals remand order, in an opinion released on August 11, 2006, published at 984 So. 2d 1153. On April 22, 2008, the Court of Civil Appeals, which had issued its certificate of judgment on January 2, 2008, following the Alabama Supreme Court's affirmance of its judgment, 984 So. 2d 1161, recalled that certificate and placed the case on rehearing ex mero motu. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590873/ | 563 F. Supp. 1369 (1983)
UNITED STATES of America,
v.
Guy T. FISHER, et al., Defendants.
UNITED STATES of America
v.
Frank JAMES and Wallace Rice, Defendants.
Nos. 83 Cr. 150(MP), 82 Cr. 723(DBB).
United States District Court, S.D. New York.
June 9, 1983.
*1370 Rudolph W. Giuliani, U.S. Atty., S.D.N.Y. by Philip LeB. Douglas, Benito Romano, Asst. U.S. Attys., Goldberger, Feldman, Dubin & Weisenfeld, P.C. by Paul Goldberger, J. Jeffrey Weisenfeld, New York City, for defendant James.
Goldberger, Feldman, Dubin & Weisenfeld, P.C. by Jerry Feldman, J. Jeffrey Weisenfeld, New York City, for defendant Rice.
Howard L. Jacobs, P.C., New York City, for Leroy Barnes.
William M. Kunstler, New York City, for defendant Fisher.
OPINION AND ORDER
MILTON POLLACK, District Judge.
The government, joined by Leroy "Nicky" Barnes, moves to disqualify the law firm of Goldberger, Feldman, Dubin & Weisenfeld, P.C. (the "Goldberger firm") from representing Frank James and Wallace Rice on criminal charges levied against them. The basis of the disqualification motion is that the prior representation of Leroy Barnes by the "Goldberger firm," generally and in previous criminal trials, creates a conflict of interest that, the moving parties argue, precludes continued representation of James and Rice by the "Goldberger firm."
The right of a defendant in a criminal case to counsel of his choice is one of constitutional dimension, but it is not absolute; it must be balanced against the interests of the government, the witnesses and the public. This balance, as it applies to the choice by James and Rice of the "Goldberger firm" has been previously addressed as to them by the Second Circuit Court of Appeals in United States v. James and Rice, 708 F.2d 40 (2d Cir. 1983).[1] The Second Circuit affirmed Judge Bonsal's order of disqualification and refused to approve an arrangement that would not adequately protect the significant interests that weigh against a defendant's right to choose counsel, under the facts and circumstances.
The details of the relationship between the "Goldberger firm," in its various ramifications and Barnes have been set forth extensively by the Second Circuit Court of Appeals, in James and Rice, supra, at 41-42, 44, as well as in Judge Bonsal's District Court opinion dated January 9, 1983. In light of the fact that the "Goldberger firm" does not dispute those factual findings in their rebuttal to the government's motion, they need not be listed for a third time. Suffice it to say, *1371 Goldberger and Feldman were partners until late 1977 with David Breitbart in the firm known as Goldberger, Feldman & Breitbart. Although Breitbart acted as Barnes' principal attorney, Goldberger and Feldman "aided in the defense of Barnes [in criminal cases involving murder and narcotics charges] on several occasions and that they very likely were privy to confidential communications from Barnes." Id. at 44.
Goldberger and Feldman argue that their clients' interests and the competing interests can be adequately protected, without their disqualification, if they restrict their questioning of Barnes to: Barnes' criminal record, prior trial transcripts of Barnes as a witness or a defendant, 3500 material, Brady material, real evidence offered by the government in this or prior cases involving Barnes, media reports and agreements between Barnes and the government.
The "Goldberger firm" argues further that the offered restriction of cross-examination is more stringent than that considered by the Second Circuit in James and Rice, supra, and that the firm therefore satisfies the mandate of the Second Circuit. The Second Circuit relied on three factors to distinguish its earlier decision in United States v. Cunningham, 672 F.2d 1064 (2d Cir.1982), where disqualification was not required. Foremost in James and Rice, the Appellate Court cited the fact that Barnes joined in the motion to disqualify. The Court noted that "[t]his circumstance in itself strongly suggests the granting of the disqualification motion." James and Rice, supra, at 45. The Court further relied on the fact that the "Goldberger firm's" offer to restrict their questioning to matters learned from "independent sources" was an impractical way to protect Barnes' interests. Finally the Court relied on the fact that the subject matter of the past representation was closely related to that of the James and Rice case.
Even if the proposed restriction of cross-examination now put forward by the "Goldberger firm" were to be viewed as more practical and easier to police than the "independent source" restriction, the fact that Barnes joins in the motion, given the close and substantial relationship between the pending action and the prior representation, precludes any result different than that reached heretofore.
When viewed on its own terms, it is clear that the so-called "public record" restriction is not readily distinguishable from the "independent source" restriction that was explicitly rejected on the appeal. Unlike the "public record" in Cunningham, which was limited to a recorded client-psychiatrist conversation and a plea allocution, the public record as defined by the "Goldberger firm" includes any rumor published by the media about Barnes' entire life, no matter what the source of the rumor, if any. Under such a limitation there would be no way for the Court to police the cross-examination to insure that confidential communications between Barnes and his former attorneys were not being exploited. Moreover, the inherent, aggressive nature of cross-examination, with follow-up questions that cannot be anticipated in advance, suggests to the Court that all efforts to protect a client's confidences are doomed to fail in a case like this one, where the prior relationship between the witness and his former attorneys was so long and extensive. The repeated trial interruptions that would be necessary to establish the legitimate bases for cross-examination questions would destroy the continuity of a trial and hinder the jury's ability to reach a just verdict.
Under all the facts and circumstances of this case, and in light of the Second Circuit opinion in United States v. James and Rice, supra, the offer of the "Goldberger firm" is not sufficient to prevent their disqualification.
Additional client relationships present further conflicts in this case, United States v. Fisher, 83 Cr. 150(MP) (S.D.N.Y.), that were not present in James and Rice, supra. In the 1977 federal prosecution that resulted in the conviction of Leroy Barnes, Goldberger represented Guy Fisher, a defendant in this case now represented by William Kunstler. Joseph Hayden, an unindicted co-conspirator in this case, was a defendant in the 1977 case and was then represented by Feldman. The government also claims *1372 that defendants Batts, Forman and Thomas have been represented by members of the various firms in which Goldberger and Feldman have been partners. The offer of the "Goldberger firm" to restrict its cross-examination of Barnes to the so-called "public record" must be considered also in light of the apparent and potential conflicts outlined above. This myriad of potential conflicts between the current and prior clients of the "Goldberger firm" further support the government's motion, joined by Barnes, seeking disqualification.
In rare cases, the extent of contacts creating a conflict of interest will be so substantial that no alternative short of disqualification can protect the interests that conflict with the defendants' right to choose counsel. For the reasons expressed, this is such a case.
Accordingly, the firm of Goldberger, Feldman, Dubin & Weisenfeld is disqualified from representing Frank James and Wallace Rice in the criminal actions that are the subject of this motion. Said defendants are directed to designate new, independent counsel whose appearances herein shall be filed and served within 30 days; in default thereof, the said defendants shall be deemed to intend to proceed pro se herein.
SO ORDERED.
NOTES
[1] The government's motion to consolidate United States v. James and Rice, 82 Cr. 723(DBB) (S.D.N.Y.) with United States v. Fisher, 83 Cr. 150(MP) (S.D.N.Y.) was granted on May 27, 1983. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590988/ | 14 So. 3d 1266 (2009)
Steven DOHERTY, Appellant/Cross-Appellee,
v.
Sandra BROWN, Appellee/Cross-Appellant.
No. 1D08-5211.
District Court of Appeal of Florida, First District.
July 8, 2009.
Rehearing Denied August 25, 2009.
*1267 R. Flint Crump, Gainesville, for Appellant/Cross-Appellee.
Randi E. Dincher of Randi E. Dincher, P.A., Gainesville, and Sharon H. Proctor, Lake St. Louis, MO, for Appellee/Cross-Appellant.
PER CURIAM.
Appellant/Cross-Appellee appeals certain statements contained in the trial court's Order Modifying Foreign Decree, and Appellee/Cross-Appellant appeals the denial of that portion of her petition for modification requesting a change in the minor child's primary physical residence.
In the introductory findings section of the order on appeal, the trial court referred to the parties' Joint Custody Agreement wherein the parties agreed to review the Agreement every six months, and speculated that accordingly, no substantial change in circumstances would be required in future modification proceedings. In the adjudicatory section of the order denying modification of the child's primary residence, the court stated its intent that in the future, the child might "be able to rotate year to year between parents."
We find that the challenged statements in the order on appeal pertain to matters which might arise in the future but were not necessary to the resolution of the case before the court. "[A] purely gratuitous observation or remark made in pronouncing an opinion and which concerns some rule, principle, or application of law not necessarily involved in the case or essential to its determination is obiter dictum, pure and simple." Bunn v. Bunn, 311 So. 2d 387 (Fla. 4th DCA 1975). These dicta had no binding legal effect but, as *1268 demonstrated by this appeal, served only to confound the trial court's final ruling. See Cobb v. State, 511 So. 2d 698, 700 (Fla. 3d DCA 1987) (Baskin, J., specially concurring) ("Judicial pronouncements which are obiter dicta in character more often serve to confound than to clarify the jurisprudence of this State."). Because the trial court's comments did not address the merits of the modification proceedings then before it, such dicta did not constitute grounds upon which the Order Modifying Foreign Decree might be reversed.
We reject Appellee/Cross-Appellant's assertion that the trial court abused its discretion in denying her petition to modify the child's primary physical residence. See Jannotta v. Hess, 959 So. 2d 373 (Fla. 1st DCA 2007) (standard of review for denial of modification of child custody is abuse of discretion). The trial court's rejection of portions of the custody evaluation report was a valid exercise of the court's discretion, and the denial of modification of the child's primary physical residence was supported by competent substantial evidence other than the custody evaluation report. It is unnecessary to determine whether competent substantial evidence supports a denial of relief to the party carrying the burden of proof. See Mitchell v. XO Communications, 966 So. 2d 489, 490 (Fla. 1st DCA 2007); see also Fitzgerald v. Osceola County School Bd., 974 So. 2d 1161, 1164 (Fla. 1st DCA 2008) ("a decision in favor of the party without the burden of proof need not be supported by competent substantial evidence.").
AFFIRMED.
HAWKES, C.J., ALLEN, and CLARK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590948/ | 42 S.W.3d 407 (2001)
344 Ark. 433
Michael Drew KENNEDY
v.
STATE of Arkansas.
No. CR 00-1250.
Supreme Court of Arkansas.
April 19, 2001.
*409 Perroni & James Law Firm, by Samuel A. Perroni and Janan Arnold Davis, Little Rock, for appellant.
Mark Pryor, Att'y Gen., by Misty Wilson Borkowski, Ass't Att'y Gen., Little Rock, for appellee.
DONALD L. CORBIN, Justice.
Appellant Michael Drew Kennedy was convicted in the Van Buren County Circuit Court of first-degree battery and sentenced to ten years' imprisonment. Appellant appealed his conviction to the Arkansas Court of Appeals, asserting that the trial court erred when it allowed a prior statement given by an eyewitness to be read into evidence by the police officer who took the statement. In a 4-2 decision, the court of appeals affirmed the judgment of conviction. See Kennedy v. State, 71 Ark.App. 171, 27 S.W.3d 467 (2000). We granted Appellant's petition for review, pursuant to Ark. Sup.Ct. R. 1-2(e)(ii). We affirm.
The record reflects that on July 27, 1997, around 2:30 a.m., a fight occurred outside the 659 Club, in Choctaw, Arkansas. The fight was primarily between Appellant and Lanny Bates, although there was testimony that Appellant's friend, Rodney Brown, was also involved. As a result of the fight, Bates received multiple knife wounds to his back, neck, throat, and face. Appellant received a cut on his hand. Bates was taken by ambulance to a nearby hospital and later air-lifted to UAMS in Little Rock. Appellant was subsequently arrested and charged with first-degree battery. No other arrests were made. At trial, Appellant claimed that he had acted in self-defense and that Bates was the initial aggressor. Appellant admitted that he had cut Bates two times in the back with his knife; however, he denied making any of the other cuts to Bates.
The State presented testimony from numerous persons who witnessed the fight. Only two of the State's witnesses, Bates and Kim Kennedy, had knowledge as to how the fight started. Kim, who is the wife of Appellant's first cousin, Mark Kennedy, gave a statement to Arkansas State Police Investigator Ross Dean, approximately one week after the fight. Kim told Dean that Appellant had started the fight, and that he had a knife in his hand. At *410 trial, however, Kim did not recite the incident as she had to the police. Instead, she claimed that she could not recall much of the details about the fight. Specifically, Kim testified that she could not remember who started the fight or whether Appellant had a knife. When pressed by the prosecutor, she offered the excuse that she had been pregnant at the time and had been fighting with her husband. She also stated that she was nervous. When questioned about specific statements that she had made to police, Kim repeatedly claimed a lack of memory.
After Kim was excused from the witness stand, the prosecutor recalled Dean and asked him to tell the jury what Kim had told him. Defense counsel objected to the testimony on the ground that it was hearsay. A hearing was then held outside the presence of the jury. The prosecutor argued that he should be permitted to impeach the witness with her prior inconsistent statements. Defense counsel countered that Kim's inability to recall what happened was not inconsistent with her statements to Dean. Defense counsel further argued that the prior statements would be prejudicial to the defense, and that Appellant would be deprived of the opportunity to confront the witness if her statement was offered through the officer. The trial court allowed the testimony under Ark. R. Evid. 613(b) and this court's holding in Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). The trial court, however, did not allow the State to introduce the officer's written report of the statements.
Thereafter, Dean read Kim's statements to the jury. In pertinent part, Kim told the officer that she was in the parking lot of the 659 Club with her husband, Mark Kennedy, Bates, and another man. Kim saw Bates walk over to where Mark, Appellant, and Brown were standing. Kim followed Bates, but she could not hear what was being said, due to her hearing impairment. Kim saw Mark give Brown $10 to keep Brown from fighting him. Kim could not hear what Bates and Appellant were saying, but she observed a knife in Appellant's right hand. Kim then saw Appellant hit Bates in the face with his fist. The next thing she saw was that the knife had switched from Appellant's right hand to his left hand. She saw Bates fall to the ground, and she yelled for Mark to stop the fight. Mark declined, telling Kim that Bates had told him that he (Bates) could handle the fight himself. Kim then heard Bates call for Mark to help him. At that point, Mark grabbed Appellant and took him to his truck. Kim could see that Appellant had blood on his hand. When Bates, who was still on the ground, turned his head, Kim could see that his throat was cut.
In the court of appeals, Appellant argued that the trial court erred in allowing Kim's testimony to be impeached with extrinsic evidence of her prior statements to Dean. Specifically, he contended that (1) Kim's testimony was not inconsistent with her prior statements to police, as required by Rule 613(b); (2) Dean's testimony of her prior statements was impermissibly used and considered by the jury as substantive evidence, in violation of Ark. R. Evid. 801(d)(1)(i); and (3) he was denied his right to confront the witness because her prior statements were admitted through the testimony of Dean. The court of appeals rejected Appellant's arguments, relying entirely on this court's holding in Chisum, 273 Ark. 1, 616 S.W.2d 728. The dissent, on the other hand, concluded that Chisum was not applicable and had been limited in its scope by this court's holding in Smith v. State, 279 Ark. 68, 648 S.W.2d 490 (1983). We granted Appellant's petition for review in order to clarify any *411 perceived inconsistencies in this court's decisions. When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. See Miller v. State, 342 Ark. 213, 27 S.W.3d 427 (2000).
For purposes of clarification, we note that Appellant does not argue that it was error to allow the prosecutor to impeach Kim's testimony during his direct examination of her. Indeed, the record demonstrates that Appellant did not object to the prosecutor's questions to Kim about her prior statements to Dean. Thus, Appellant is not challenging the use of intrinsic evidence to impeach the witness. Rather, he argues only that it was error for the trial court to allow impeachment by extrinsic evidence, i.e., Dean's testimony of her prior statements. We discuss the points on appeal separately.
I. Admissibility of the Prior Statements under Rule 613(b)
Appellant first argues that the witness's lack of memory did not render her testimony sufficiently inconsistent with her prior statement to police. Correspondingly, he asserts that because her statements were not inconsistent with her testimony, the trial court erred in allowing the prosecutor to present extrinsic evidence of her prior statements. We disagree.
A. Degree of Inconsistency Required
The first issue we must resolve is whether Kim's professed lack of memory of the particular details of the incident rendered her trial testimony inconsistent with her prior statement to police. This court has previously recognized that an "`inconsistent statement' as used in Rule 613, is not limited to those instances in which diametrically opposite assertions have been made." Roseby v. State, 329 Ark. 554, 564, 953 S.W.2d 32, 37 (1997), overruled on other grounds, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998), (citing Truck Ctr. of Tulsa, Inc. v. Autrey, 310 Ark. 260, 836 S.W.2d 359 (1992); Flynn v. McIlroy Bank & Trust Co., 287 Ark. 190, 697 S.W.2d 114 (1985)). See also United States v. McCrady, 774 F.2d 868, 873 (8th Cir.1985) (quoting United States v. Dennis, 625 F.2d 782, 795 (8th Cir.1980)) (holding that under Fed.R.Evid. 613, inconsistency "may be found in evasive answers, inability to recall, silence, or changes of position"). This court has adopted Judge Weinstein's view that a statement is inconsistent "whenever a reasonable person could infer on comparing the whole effect of the two statements that they have been produced by inconsistent beliefs." Roseby, 329 Ark. at 564, 953 S.W.2d at 37. Considerable discretion is given to the trial court when determining where the line is drawn in the impeachment of a hostile witness, and those rulings will not be reversed absent an abuse of discretion. Id.; Hughey v. State, 310 Ark. 721, 840 S.W.2d 183 (1992).
The leading Arkansas case on this issue is Chisum, 273 Ark. 1, 616 S.W.2d 728. In that case, the appellant's sister, called as a witness for the state, testified that she had forgotten many of the details of the crime and had also forgotten what she had told the police in a prior interview. Due to her lack of memory, the trial court allowed the state to impeach her testimony by having the sheriff and his secretary narrate the statements given by the witness to the sheriff. On appeal, this court held that "the statements were unquestionably admissible for the purpose of impeachment[.]" Id. at 6, 616 S.W.2d at 730. This court reasoned that the fact that the witness had "professed not to remember what she had said to the sheriff did not preclude the prosecution from using her prior inconsistent statements." Id. at 8, 616 S.W.2d at 731. This court relied on the case of *412 Billings v. State, 52 Ark. 303, 12 S.W. 574 (1889), in which it was held:
The statute does not place the right to impeach a witness by proof of contradictory statements, upon the condition of his denial. It requires his cross-examination upon the matter; nothing more. This is exacted in order that he may explain apparent contradictions and reconcile seeming conflicts and inconsistencies. If he cannot remember the fact, he is unable to do what the law affords him the opportunity to do. If he cannot remember the statement made, it is quite as probable that his recollection of the occurrence about which he testifies is inaccurate or incorrect. If contradiction properly affects the value of his testimony when he denies, it is difficult to see why it should not when he ignores the contradictory or inconsistent statements. The testimony is discredited because he affirms today what he denied yesterday; the legitimate effect of such contradiction cannot depend upon his power to remember it. If the defect in the memory is real, the proof of the contradiction apprises the jury of this infirmity of the witness; if he has made a false statement under the pretense of not remembering, he should not escape contradiction and exposure. We think the evidence was properly admitted.
Chisum, 273 Ark. at 8, 616 S.W.2d at 732 (emphasis added) (quoting Billings, 52 Ark. at 308, 12 S.W. at 575).
Similarly, in Roseby, 329 Ark. 554, 953 S.W.2d 32, the witness, who was related to the defendant, admitted making statements to the police, but claimed that she could not remember what she had said. After she was given the opportunity to review her prior statements, the witness stated that she could not remember saying those things because she was under the influence of drugs at the time. The prosecutor then proceeded to ask the witness about specific information that she had given to the police. Each time, the witness responded that she did not remember. On appeal, the appellant argued that the prosecutor should not have been allowed to impeach the witness with her unsworn statements because she did not directly contradict her prior statements; rather she merely declared that she could not remember them. This court disagreed, relying in large part on the decision in Chisum. This court noted that just as in Chisum, the witness's "statements that she `forgot' were sufficiently inconsistent to allow the introduction of her prior sworn statement." Id. at 564, 953 S.W.2d at 37. This court then observed that it has "reached this same conclusion in numerous cases where a witness claimed to have forgotten a prior statement that is unfavorable to the defendant." Id. (citing Hughey, 310 Ark. 721, 840 S.W.2d 183; Flynn, 287 Ark. 190, 697 S.W.2d 114; Humpolak v. State, 175 Ark. 786, 300 S.W. 426 (1927); Billings, 52 Ark. 303, 12 S.W. 574).
The facts of the present case are very similar to those in Chisum and Roseby. Here, the witness, Kim Kennedy, is married to the Appellant's first cousin. Kim gave the police a detailed account of the fight, approximately one week after the incident had occurred, in which she stated that Appellant had a knife, and that he threw the first punch. At trial, however, she claimed that she had forgotten many of the details that were crucial to the State's case. When questioned by the prosecutor about many of those details, she repeatedly claimed that she could not remember them. The pertinent parts of her testimony are as follows:
BY MR. JAMES:
*413 Q. Okay. Kim, were you very close to what happened and saw what happened that night?
A. I don't quite remember all that happened. I was pregnant at the time.
Q. Okay. Kim, you made a statement to the police just a few days after this happened, isn't that right?
A. Yes, sir.
Q. And have you had a chance to review or would you like to review your statement?
A. I've already reviewed it, Sir.
Q. Okay. So, what you told the police that day, was that what you remember happening?
A. Part of it.
Q. Part of it?
A. Uh-huh.
Q. Are you saying that now that you've read your statement you're not sure about something?
A. II can't quite remember all for sure. I wasn't really for sure.
Q. Uh.
A. If it all happened. `Cause me and my husband was in an argument. We were fussing and fighting.
....
Q. Okay. All right. Now, during the fight, did you see a knife?
A. Not, I can't remember. I don't quite remember.
Q. Oh. Well, do you remember telling the police officer that you saw Michael Drew Kennedy with a knife in his hand?
A. I don't remember seeing Michael Drew Kennedy with a knife.
Q. And that youyou rememberdo you remember telling the police officer that you saw him hit Lanny in the face with his fist?
A. That's what I don't remember. I cannot remember if he did or not because that's when me and my husband both were standing there fighting; `cause we were arguing.
Q. Do you remember telling the police officer that the next thing you saw was that Michael had the knife in his left hand, he had moved it from the right hand to the left hand?
A. No, sir, I don't.
Q. And then Lanny fell to the ground. Do you remember telling the police officer that?
A. I can't remember if I did or not, sir.
Q. Okay. Do you remember yelling to Mark to stop the fight?
A. Pardon me?
Q. Do you remember yelling to Mark at that point to stop the fight?
A. I was, no. All I can remember was that [we] were talking about something and I was ready to go.
Q. You were just talking about something and you were ready to go?
A. Uh-huh. I can't quite remember.
....
Q. Okay. I'd like to show you a photograph. I'm going to show you a picture it's State's Exhibit No. 4. Did you see a wound on Lanny Bates like that on his neck?
A. I can't remember. I don't remember seeing noI didn'tall I saw was him laying on the ground.
Q. Do you remember telling the police officer that when Lanny turned his head while laying on the ground you could see that his throat was cut?
A. That's all I can remember. That's all I could see was blood. That's just all I could see.
Q. You don't remember telling the police officer
*414 A. I don't remember if his throat was cut or what. All I know I saw was blood.
....
Q. Well, do you believe that you told the police officer the truth on the day that you talked to him?
A. All I remember is what I told him what I saw and that's all I could remember at what I seen.
Q. All right. But you weren't lying to him when you talk[ed] to him, were you?
A. No, sir.
Q. Okay. So, if the police officer said that you told him these things on here, he would be telling the truth, wouldn't he?
A. Well, sir, all I know is Iwhat I told the cop is what I think I know. I didn'tI wasn't for sure. I just know what I thought.
Q. Okay.
A. But I was not for sure.
Q. But you wouldn't make up some specific things if you weren't pretty sure; like Michael Drew Kennedy having a knife in his hand, like Lanny Bates having his throat cut. You wouldn't have guessed on these things, would you?
A. No, sir. I do not guess on them things. I'm justI'm for sure.
Based on the foregoing exchange, we conclude that the witness's trial testimony was sufficiently inconsistent with her prior detailed statements to the police. Her claimed loss of memory, which was conveniently favorable to Appellant, her husband's first cousin, was similar to the testimony given by the witnesses in Chisum and Roseby. Accordingly, it was not error to allow impeachment of the witness.
B. Extrinsic Evidence
The next issue is whether the trial court erred in allowing the State to present extrinsic evidence of the witness's prior inconsistent statements under Rule 613(b), which provides in pertinent part:
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon[.]
Under this rule, three requirements must be met before extrinsic evidence of a prior inconsistent statement will be admissible. First, the witness must be given the opportunity to explain or deny the inconsistent statement. Second, the opposing party must be given the opportunity to explain or deny the witness's inconsistent statement. Third, the opposing party must be given the opportunity to interrogate the witness about the inconsistent statement. Additionally, this court has held that when the witness admits to having made the prior inconsistent statement, Rule 613(b) does not allow introduction of extrinsic evidence of the prior statement to impeach the witness's credibility. Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999); Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988). In other words, once a witness acknowledges having made a prior inconsistent statement, the witness's credibility has successfully been impeached. "An admitted liar need not be proved to be one." Id. at 18, 753 S.W.2d at 263 (quoting Gross v. State, 8 Ark.App. 241, 250, 650 S.W.2d 603, 608 (1983)). Where, on the other hand, the witness is asked about the prior statement and either denies making it or fails to remember making it, extrinsic evidence of the prior statement is admissible. See 1 John W. *415 Strong, McCormick on Evidence § 34, at 126 (5th ed.1999). See also United States v. Cline, 570 F.2d 731 (8th Cir.1978).
In the present case, the requirements for admitting extrinsic evidence of the witness's prior inconsistent statements were met. First, the foregoing exchange between the prosecutor and the witness demonstrates that the witness was given an opportunity to explain or deny the prior statements. During her questioning, Kim consistently demonstrated an inability to recall the facts or to remember what she had previously said to the police. We disagree with Appellant's assertion that Kim admitted making the prior statements. Her testimony in toto reflects that the only thing that she fully admitted was that she had given a statement or interview to the police. When asked about specific information or particular statements that she made, she professed a lack of memory. Indeed, even when she stated that she had not lied to the police or guessed at the details that she had previously provided, she hedged her answers by stating that she told the police what she thought she knew, but that she was not "for sure" about what happened. Her exact testimony bears repeating: "Well, sir, all I know is Iwhat I told the cop is what I think I know. I didn'tI wasn't for sure. I just know what I thought.... But I was not for sure." These answers are hardly full and unequivocal admissions of having made the prior inconsistent statements. See Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983).
The second and third requirements of Rule 613(b) were also met. Appellant was given the opportunity to explain or deny the witness's prior inconsistent statements, and he was given the opportunity to interrogate her about them. The record reflects that Appellant was able to conduct a full cross-examination of the witness, during which defense counsel attempted to rehabilitate her credibility. For example, defense counsel pointed out that it had been some nineteen months between the time the crime had occurred and the time of trial. Defense counsel also attempted to suggest that the witness was either too far away to have seen much of the fight or was too distracted from fighting with her husband to be able to accurately recall the event. Accordingly, the trial court did not abuse its discretion in allowing the State to present extrinsic evidence of the witness's prior inconsistent statements.
We reject Appellant's reliance on the holdings in Roberts, 278 Ark. 550, 648 S.W.2d 44, and Smith, 279 Ark. 68, 648 S.W.2d 490. Neither of those cases presented facts that would have sustained the use of extrinsic evidence for impeachment. Both cases involved witnesses who admitted that they had made prior inconsistent statements and that those prior statements were false. Thus, under Rule 613(b), extrinsic evidence was not admissible. Moreover, in Roberts, the state was aware before the trial that the witness had recanted his prior statements. Nonetheless, the trial court allowed the state to introduce the complete text of the witness's statement through a deputy sheriff. This court reversed, holding that "[o]nce a witness has fully and unequivocally admitted making the prior inconsistent statement, then it cannot be proven again through another witness." Roberts, 278 Ark. at 552, 648 S.W.2d at 46 (citing McCormick, Evidence § 37, at 72-73 (2d ed.1972)). This court held further that because the prior statement was unsworn, it could not be admitted as substantive evidence under Rule 801(d)(1)(i). This court ultimately concluded that the impeachment of the witness in that situation was "a mere subterfuge" for the prosecution's true intention of introducing the hearsay statements as substantive evidence of the defendant's *416 guilt. Id. Under those circumstances, this court held that the error was not cured by an instruction to the jury directing them to consider the prior statements for impeachment purposes only.
One month after the decision in Roberts, this court decided Smith, 279 Ark. 68, 648 S.W.2d 490. In that case, the witness recanted his prior statements on the witness stand, while testifying for the state. The witness readily admitted that he had lied in his previous statements to the police, and that he had falsely implicated the defendant in the crime charged. Despite his full and unequivocal admissions, the prosecutor sought to introduce the witness's written statement previously given to police. The trial court initially sustained defense counsel's objection that the statement was hearsay. Later, however, the prosecutor was permitted to read the statement to the jury over the defense's objection. On appeal, this court reversed on the ground that it was "manifest from the record that [the witness's] written statement was read to the jury, not for purposes of impeachment, but as substantive evidence to prove the truth of the matters asserted in it." Id. at 69, 648 S.W.2d at 491. As in Roberts, the decision in Smith turned on the pivotal fact that the witness had admitted making the prior inconsistent statements and had admitted that he had lied. Under those circumstances, extrinsic evidence of the lies was not admissible.
Contrary to the position taken by Appellant and the dissent in the court of appeals, the holding in Smith, 279 Ark. 68, 648 S.W.2d 490, did not limit that in Chisum, 273 Ark. 1, 616 S.W.2d 728. Smith merely concluded that Chisum was not controlling, because the witness had admitted to the jury that he had lied in his previous statements. Thus, through his own admission, his believability had been impeached, and extrinsic evidence of his prior statements was not admissible under Rule 613(b). Furthermore, because they were not given under oath and subject to the penalty of perjury, the prior statements were not exempt from the hearsay rule under Rule 801(d)(1)(i). Thus, the decision in Smith did not turn on the form of the evidence used, i.e., the witness's prior statements read in their entirety by another person. Rather, that decision turned on what this court concluded were impermissible purposes for admitting the evidence. Accordingly, Smith, does not stand for the proposition that it is error to allow the impeachment of a witness by introducing extrinsic evidence of prior inconsistent statements through the testimony of a second witness or through the admission of documentary evidence. Were that the case, Rule 613(b) would have no meaning. Nor does Smith stand for the proposition that a witness may not be impeached with prior inconsistent statements unless those statements were given under oath and are thus admissible as substantive evidence. Again, were that the case, Rule 613(b) would have no meaning independent of Rule 801(d)(1)(i).
In sum, the factual circumstances presented in Roberts and Smith precluded the use of extrinsic evidence to impeach the witnesses, who both admitted to having lied in their prior statements. The facts here are quite distinguishable from those. In this case, the witness did not fully and unequivocally admit that she had made the incriminating statements to the police. Rather, all she admitted was that she had given an interview to the police. Her testimony reveals that when asked about specific statements that she had made to the officer, she repeatedly professed a lack of memory. As such, the holdings in Roberts and Smith are not controlling of this appeal, and the trial court did not err in allowing the witness to be impeached *417 through the admission of extrinsic evidence of her prior inconsistent statements.
II. Use of Prior Inconsistent Statements as Substantive Evidence
In a related argument, Appellant contends that Smith, 279 Ark. 68, 648 S.W.2d 490, mandates reversal because the prosecutor impermissibly used Kim's prior statements to police, introduced through the officer, as substantive evidence of Appellant's guilt, in violation of Rule 801(d)(1)(i). Specifically, Appellant points to the prosecutor's repeated references to Kim's prior statements during his closing argument to the jury. Appellant thus contends that the prosecutor's actions demonstrate that the evidence was not admitted as impeachment evidence, but as substantive evidence of his guilt. We reject this argument for two reasons.
First, the record is devoid of any objection to the improper use of the evidence during the prosecutor's closing argument. Because he failed to make a timely objection in the trial court, he has waived this argument on appeal. See, e.g., Marshall v. State, 342 Ark. 172, 27 S.W.3d 392 (2000); State v. Montague, 341 Ark. 144, 14 S.W.3d 867 (2000). The record reflects that during the in-chambers hearing held prior to the introduction of the statements, the trial court ruled that it was admitting the testimony as impeachment evidence under Rule 613(b) and Chisum, 273 Ark. 1, 616 S.W.2d 728. Had Appellant objected to the prosecution's later use of the statements as substantive evidence, the trial court would have undoubtedly sustained the objection.
Second, we reject Appellant's argument because he failed to ask for a limiting instruction directing the jury to consider the prior statements only for purposes of determining the witness's credibility. "When evidence is admissible for one purpose but not for another, an objection is wholly unavailing unless the objecting party asks the court to limit the evidence to its admissible purpose." Chisum, 273 Ark. 1, 9, 616 S.W.2d 728, 732 (citing City of Springdale v. Weathers, 241 Ark. 772, 410 S.W.2d 754 (1967); Shipp v. State, 241 Ark. 120, 406 S.W.2d 361 (1966); Uniform Evidence Rule 105). Similarly, Ark. R. Evid. 105 provides that when evidence is admissible for one purpose but not another, it is up to the objecting party to request a limiting instruction from the trial court. Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992). When an appellant contends that the failure to give a cautionary or limiting instruction at trial constitutes reversible error, the failure to request the instruction precludes reversal based on that claim. Eliott v. State, 342 Ark. 237, 27 S.W.3d 432 (2000).
In the present case, as discussed above, the witness's prior statements were properly admitted for the purpose of impeaching her testimony at trial. It was thus Appellant's burden to request a limiting instruction directing the jury to consider her prior inconsistent statements only for the purpose of judging the witness's credibility, and not for the truth of the matter set forth therein. See AMCI 2d 202. Because there was no request for a limiting instruction, the trial court was not required to give one.
Again, we are not persuaded by Appellant's reliance on Smith, 279 Ark. 68, 648 S.W.2d 490, and Roberts, 278 Ark. 550, 648 S.W.2d 44. In those cases, extrinsic evidence of the witnesses' prior statements was not admissible for any proper purpose. Because the witnesses admitted to having lied in their prior statements, the statements themselves had no impeachment value and were thus not admissible *418 under Rule 613(b). Moreover, because, the prior inconsistent statements were not made under oath, they were not alternatively admissible under Rule 801(d)(1)(i). Accordingly, the error in admitting the prior statements in Smith and Roberts could not have been cured by a limiting instruction.
III. Right to Confrontation of the Witness
For his last point for reversal, Appellant argues that he was denied his right to confront the witness about her prior inconsistent statements because they were admitted through the testimony of another witness. He argues that it was not possible to ask the officer about Kim's powers of observation and perception at the time, as well as the physical circumstances that may have affected her statements about the fight. We find no merit to this argument, as Appellant was afforded a full opportunity to ask Kim about the circumstances surrounding the fight and her prior statements to Dean.
The Confrontation Clause, found in both the United States and Arkansas Constitutions, is intended to permit a defendant to confront the witnesses against him and to provide him with the opportunity to cross-examine those witnesses. See Smith v. State, 340 Ark. 116, 8 S.W.3d 534 (2000); Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999). Appellant was not denied his right to confront Kim at trial, nor was he denied the right to fully cross-examine her regarding her prior inconsistent statements. As evidenced by her direct testimony, set out above, the prosecutor asked Kim about the individual statements that she had made to the police. Appellant was then allowed to cross-examine her about those statements.
The record reveals that defense counsel cross-examined Kim on how close she stood to the fight, the effect of her fight with her husband, and the fact that the trial took place over a year and a half after the fight. Had he chosen to do so, he undoubtedly would have been allowed to ask her about the lighting that night, the type of knife that she allegedly saw Appellant use, the effect of her pregnancy on her ability to remember and recall the event, and any other issue that he now claims may have touched upon her ability to recall. There is no indication from the record that the trial court in any way attempted to limit Appellant's cross-examination of Kim. The record also reflects that Appellant was given a full opportunity to cross-examine Dean about the circumstances of his interview of Kim. Appellant certainly could have called Kim as his own witness if he had any further questions stemming from Dean's testimony of her statements. We thus conclude that Appellant was not denied the right to confront the witnesses against him.
IV. Conclusion
The trial court did not err in allowing the prosecutor to impeach Kim with her prior statements, as Kim's testimony was sufficiently inconsistent with her prior statements to the police. Moreover, because Kim was given the opportunity to explain or deny the prior inconsistent statements and did not admit having made the statements, it was not error to allow the prosecutor to introduce extrinsic evidence of her prior statements under Rule 613(b). Because the prior statements were properly admitted for impeachment purposes, and not for the truth of the matter asserted by them, the statements were not hearsay. Thus, it was irrelevant that they were not given under oath and subject to the penalty of perjury, as provided in Rule 801(d)(1)(i). That the prior statements were later used as substantive *419 evidence by the prosecutor during closing argument is of no consequence, as Appellant did not make a timely objection, nor did he ask for a limiting instruction directing the jury to consider the prior statements only as impeachment evidence. Lastly, there was no violation of Appellant's right to confront the witness due to the admission of extrinsic evidence of the witness's statements. Appellant was afforded a full and fair cross-examination of the witness. We thus affirm the judgment of conviction.
THORNTON, J., concurs.
RAY THORNTON, Justice, concurring.
In my view, it was error to allow Kimberly's previously unsworn statement to be admitted into evidence, and to be used as substantive evidence supporting Michael Kennedy's conviction.
The only permissible use of the unsworn statement was to impeach Kimberly's credibility as a witness. Kimberly did not deny making a prior inconsistent statement, but responded to a detailed cross-examination revealing the inconsistencies between her sworn statement during trial with the notes made by Officer Dean concerning what he heard her say within a few days of the incident.
Perhaps the use of Officer Dean's notes for purposes of cross-examination was appropriate to impeach Kimberly's sworn testimony at trial, but such use is a far cry from allowing Officer Dean's notes of his recollection of an earlier unsworn statement to be read to the jury and used by the prosecutor as substantive evidence of the commission of the crime.
By allowing the officer's notes to be read to the jury as a reflection of an earlier unsworn statement by Kimberly, we are standing the prohibition against hearsay on its head, and the use of Officer Dean's notes for that purpose was clearly an abuse of discretion. In Smith v. State, supra, the fact that a prior inconsistent statement was read in its entirety to the jury, and treated as substantive evidence in argument by trial counsel, convinced us that the statement was impermissibly used as substantive evidence and was not used merely for impeachment.
In this case, by having Officer Dean read his notes of Kimberly's prior unsworn statement to the jury and by using it as substantive evidence in its closing argument, the State used Kimberly's statement in precisely the manner that was proscribed by Smith v. State, supra.
In closing arguments, the State treated Kimberly's unsworn statement as if it were substantive evidence. Specifically, the prosecutor argued:
Kimberly Kennedy gave a very detailed statement to the police on August 4, 1997, which was a week after this incident. She had seven days to calm down and think about it. She saw a knife in Michael's right hand and in the left hand. She saw Lanny fall. She saw her husband pull Michael off of Lanny and take him back to the truck. Kim saw Michael hit Lanny first. That was her statement. The first blow Kim talked about was Michael striking Lanny in the face. That's what she said.
The prosecutor never points out that the earlier statement on which he relies was unsworn and not admitted as substantive evidence. The prosecutor also explained to the jury that they should "believe" Kimberly's earlier statement because, as a person with a hearing impairment, she was "more perceptive" and a better "observer."
However, as clear as the error in using an unsworn statement for substantive proof supporting a conviction, it is regrettably equally clear that Kennedy did not *420 request a limiting instruction to allow consideration of the prior statement only for impeachment purposes, and no objection was made to the prosecutor's flagrant use of the unsworn statement as substantive evidence supporting a conviction during closing arguments. As the majority correctly notes, we have often held that the failure to make a timely objection, thereby allowing the trial court to rule on the issue, prevents us from reaching a point on appeal. See Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). For that reason, I reluctantly concur in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591000/ | 972 So. 2d 1044 (2008)
WEDGEWOOD HOLDINGS, INC., a Florida corporation, Appellant,
v.
Alvin WILPON, an individual, and Evelyn Wilpon, an individual, Appellees.
No. 4D07-1731.
District Court of Appeal of Florida, Fourth District.
January 23, 2008.
*1045 Robert A. Stok of Stok & Associates, P.A., Aventura, for appellant.
Lawrence Bunin of Lawrence Bunin, P.A., Plantation, for appellees.
STEVENSON, J.
Wedgewood Holdings, Inc. ("Wedgewood") was the plaintiff and Alvin and Evelyn Wilpon were the defendants in this breach of contract and fraud in the inducement action arising out of a commercial real estate transaction. The trial court referred the case to non-binding arbitration and, in its notice of court-ordered arbitration, directed the arbitrator to determine the amount of costs to be awarded, if any. The arbitrator's decision named the Wilpons as prevailing parties, but was silent as to costs. The parties accepted the decision of the arbitrator, and the trial court entered final judgment in favor of the Wilpons. Wedgewood appeals the trial court's order finding that the Wilpons were entitled to costs and attorney's fees, and its subsequent order awarding those costs and attorney's fees. Having carefully considered the arguments raised in the appellate briefs, we find that we have jurisdiction. We reverse the award of costs because the trial court relinquished its authority to award costs under the terms of its notice of court-ordered arbitration and the Wilpons failed to timely seek correction of the arbitrator's failure to include costs before the arbitrator's decision became final. We reverse the trial court's award of attorney's fees and remand for a new evidentiary hearing to determine the amount of the Wilpons' attorney's fees because the amount of those fees was determined at an ex parte hearing that Wedgewood did not attend due to inadequate notice.
The trial court referred this case to nonbinding arbitration. Paragraph 15 of the notice of court-ordered arbitration states that "Wile arbitrator(s)' decision shall also indicate if a party is required to pay the costs of the suit and the amount of the costs to be awarded." The arbitrator issued a written decision in which it determined that the Wilpons were the prevailing parties. Notwithstanding the trial court's referral of the costs issue, the arbitrator's decision made no mention of costs. Neither party requested modification or correction of the arbitrator's decision, or a trial de novo.
Approximately 45 days after the arbitrator's decision was filed, the Wilpons moved for entry of final judgment in their favor. *1046 In paragraph 5 of said motion, the Wilpons stated:
At the conclusion of the arbitration proceeding, the parties agreed to defer the issue of attorney's fees until after the arbitrator rendered his decision; and, therefore, pursuant to the contract sued upon, Defendants have also served the attached Motion for Attorney's Fees and Costs. (Emphasis added).
In its order on said motion, the trial court held that the twenty-day period in which to request a trial de novo had passed and that no motion or request for a trial de novo had been filed. See Fla. R. Civ. P. 1.820(h). Accordingly, the trial court entered final judgment in favor of the Wilpons in accordance with the arbitrator's decision. In that same order, the trial court "reserved jurisdiction" to award attorney's fees and costs against Wedgewood. Following an ex parte evidentiary hearing on attorney's fees and costs, the trial court issued a "final judgment against plaintiff and in favor of defendant awarding costs and attorney's fees" in the total amount of $16,518.30. The judgment consists of $11,360.00 in attorney's fees and $5,158.30 in costs. In response thereto, Wedgewood moved to vacate the costs and fees award and moved for a rehearing, arguing that it did not attend the hearing on the amounts because it had not received adequate notice. At, the hearing on Wedgewood's motions, the trial court made an oral finding that Wedgewood did not receive proper notice of the hearing and orally ruled that Wedgewood was entitled to a new hearing on the amount of the Wilpons' attorney's fees and costs. That ruling, however, was never, memorialized in writing, the trial judge thereafter retired, and Wedgewood's motion requesting a written order was mislabeled as a "motion for execution of the order on the hearing" and ultimately denied by a successor trial judge.
First, we hold that since the arbitrator's decision was silent as to costs, a matter that, the trial court had expressly referred to the arbitrator, the Wilpons are procedurally barred from recovering their costs because they did not seek timely modification or correction of the arbitration decision before it became final. Cf. Connell v. City of Plantation, 901 So. 2d 317, 320 (Fla. 4th DCA 2005) (holding that a prevailing party in court-ordered arbitration is entitled to costs where the costs issue had not been previously submitted to the arbitrator by the trial court). "[A] party desiring changes to the arbitration award is required to seek timely modification or clarification from either the arbitrator, pursuant to section 682.10, or the court, pursuant to sections 682.13 or 682.14; otherwise, the award becomes ripe for confirmation." A-1 Duran Roofing, Inc. v. Select Contracting, Inc., 865 So. 2d 601, 604 (Fla. 4th DCA 2004).
While we accept Wedgewood's argument that the trial court referred the issue of costs to the arbitrator,[1] we reject Wedgewood's contention that the trial court's directive encompassed the issue of attorney's fees. Paragraph 15 of the notice of court-ordered arbitration, which requires the arbitrator to determine entitlement to "the costs of the suit," does not expressly mention attorney's fees and we *1047 find no basis upon which to infer that such "costs" include attorney's fees. Attorney's fees will not be regarded as "costs" unless they are specifically designated as such in a statute, by agreement or by contract. Fla. Patient's Comp. Fund v. Moxley, 557 So. 2d 863 (Fla.1990); Donner v. Red Top Cab & Baggage Co., 160 Fla. 882, 37 So. 2d 160, 161 (1948); see also Price v. Tyler, 890 So. 2d 246, 251 (Fla.2004) (holding that section 57.041, Florida Statutes, which entitles a prevailing party in a civil action to costs, does not encompass attorney's fees). We conclude that the most reasonable interpretation of the trial court's referral order is that it did not include attorney's fees in the term "costs."
Wedgewood further argues that paragraph 15 should be read to incorporate paragraph 18 of the referral order and that paragraph 18 defines "costs" to include attorney's fees. We disagree. Paragraph 18 applies only where a party has requested a trial de novo and states that "[i]f the judgment from the trial de novo is not more favorable than the arbitration decision, the party having filed for the trial de novo may be assessed the arbitration costs; additional court costs; and other additional reasonable costs of the other parties, including attorneys' fees. . . ." We find Wedgewood's argument unpersuasive. First, paragraph 18 expressly applies only where a party has requested a trial de novo. Second, in that context, attorney's fees are authorized by statute. See § 44.103, Fla. Stat. (2006).
Based upon the foregoing, we reverse the trial court's order denying Wedgewood's motion to vacate the trial court's final judgment awarding costs and attorney's fees. With regard to the attorney's fees, we hold that the trial court retained the authority to award attorney's fees to the prevailing party in the arbitration and that the recovery of attorney's fees is authorized by section XIX of the parties' real estate contract. In light of the trial court's finding that Wedgewood did not receive adequate notice of the evidentiary hearing on the amount to be awarded, we reverse the order awarding attorney's fees and remand for a new hearing limited to the amount of attorney's fees to be awarded to the Wilpons. With regard to costs, we reverse the trial court's order reserving jurisdiction to award costs as well as its order, awarding costs, based upon our holding that the Wilpons are procedurally barred from obtaining an award of costs from the trial court.
Affirmed in part; Reversed in part; Remanded for further proceedings in accordance with this opinion
STONE, J., and TRAWICK, DARYL EVAN, Associate Judge, concur:
NOTES
[1] The Wilpons argued below that the parties mutually agreed to defer the costs issue until after the arbitrator's decision became final. We find this claim, which is contested by Wedgewood, to be unsupported by the record. In paragraph 5 of their written motion to the trial court for entry of final judgment, supra, the Wilpons represented only that the parties agreed to defer the issue of "attorney's fees." Their motion made no mention of an agreement by the parties to defer the issue of costs, and they submit no evidence of such an agreement. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590994/ | 686 N.W.2d 98 (2004)
12 Neb.App. 790
Antonio Fernandez BAUCOM, appellee,
v.
DRIVERS MANAGEMENT, INC., appellant.
No. A-03-1080.
Court of Appeals of Nebraska.
August 31, 2004.
*101 John W. Iliff and Francie C. Riedmann, of Gross & Welch, P.C., Omaha, for appellant.
Maureen A. Fitzgerald for appellee.
IRWIN, Chief Judge, and SIEVERS and CARLSON, Judges.
IRWIN, Chief Judge.
I. INTRODUCTION
Drivers Management, Inc. (DMI), appeals from an order of the Nebraska Workers' Compensation Court awarding Antonio Fernandez Baucom benefits for an injury incurred on November 6, 2000. DMI argues that the trial court erred in admitting certain exhibits because the exhibits failed to comply with Workers' Comp. Ct. R. of Proc. 10 (2000). For the reasons stated below, we affirm.
II. BACKGROUND
In a work-related accident on November 6, 2000, Baucom incurred injuries to his left knee, head, and back. Baucom sought medical treatment and ultimately underwent surgery for a total knee replacement. On July 16, 2001, Baucom filed a petition in the Workers' Compensation Court seeking payment for medical expenses, temporary total disability, permanent partial disability, a waiting-time penalty, and attorney fees.
Trial was held on September 4, 2002. The trial court heard testimony from Baucom and admitted numerous exhibits into evidence, with several of those exhibits being admitted over the objections of DMI. On November 7, the trial court entered an order awarding Baucom temporary total disability benefits, permanent partial disability benefits, and medical expenses. Specifically, the trial court found that Baucom was injured in a work-related accident which caused Baucom to require a total knee replacement. The trial court also determined that Baucom's accident caused him to be temporarily totally disabled and permanently partially disabled.
DMI appealed the order of the trial court to a three-judge review panel of the Workers' Compensation Court. DMI argued that the trial court erred in finding causation and in awarding permanent partial disability benefits and medical expenses. The basis of DMI's arguments was that the court improperly admitted exhibits which did not comply with rule 10 and subsequently relied upon those exhibits in making its findings.
DMI also appealed the trial court's admission of exhibits 3 through 9. The review panel affirmed the trial court's admission of the exhibits for two reasons. First, the review panel found that DMI *102 failed to preserve on appeal its objection that the exhibits failed to comply with rule 10. The review panel stated that DMI had objected to the exhibits "from its belief that Rule 10 of the Rules of Procedure of the Nebraska Workers' Compensation Court was not satisfied, thus rendering the exhibits irrelevant." The review panel then stated, "[I]t is clear that the exhibits were, in fact, relevant." The review panel noted that under rule 10, medical reports that do not comply with rule 10 are inadmissible as hearsay, not as irrelevant. The review panel then determined that DMI objected only on the ground of relevance, not hearsay, and that DMI thus failed to preserve on appeal the argument that the exhibits failed to comply with rule 10.
Second, the review panel affirmed the ruling of the trial court because the review panel found that the trial court did not err in admitting the exhibits. The review panel stated:
To adopt [DMI's] narrow interpretation of Rule 10 would be to require that each and every scrap and piece of medical evidence submitted by a party be read without regard to any other medical evidence submitted. Each report, no matter the content of any companion records, would (under [DMI's] view) need to meet six specific requirements, i.e., "reports must be (1) signed and must (2) narrate (3) the history, (4) diagnosis, (5) findings, and (6) conclusions of the doctor. If any of those six elements is missing, the report does not meet the requirements of Rule 10."
The review panel then determined that the principles of Nebraska workers' compensation law require a more liberal interpretation of rule 10, which interpretation would permit the exhibits to be read in conjunction with each other when determining whether rule 10 has been complied with. In considering exhibits 3 through 9 in conjunction with each other, the review panel found that the exhibits met the requirements of rule 10.
DMI now appeals to this court.
III. ASSIGNMENTS OF ERROR
DMI asserts, restated and renumbered, that the trial court erred in (1) admitting into evidence certain medical reports in violation of rule 10, (2) finding that Baucom proved medical causation for his surgery for a total knee replacement, (3) determining that Baucom sustained a 38-percent permanent partial disability, and (4) awarding Baucom medical expenses.
IV. ANALYSIS
1. STANDARD OF REVIEW
An appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court did not support the order or award. Morris v. Nebraska Health System, 266 Neb. 285, 664 N.W.2d 436 (2003) (citing Zavala v. ConAgra Beef Co., 265 Neb. 188, 655 N.W.2d 692 (2003), and Vega v. Iowa Beef Processors, 264 Neb. 282, 646 N.W.2d 643 (2002)).
In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review panel, a higher appellate court reviews the findings of the trial judge who conducted the original hearing. Morris, supra (citing Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125 (2002), and Vonderschmidt v. Sur-Gro, 262 *103 Neb. 551, 635 N.W.2d 405 (2001)). Upon appellate review, the findings of fact made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Id. (citing Frauendorfer, supra).
An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. Id. (citing Larsen v. D B Feedyards, 264 Neb. 483, 648 N.W.2d 306 (2002), and Vega, supra).
2. RULE 10 MEDICAL REPORTS
DMI argues that the trial court erred in admitting Baucom's exhibits 3 through 9, because those exhibits did not comply with rule 10, thus making the exhibits inadmissible. DMI further argues that the three-judge review panel erred in affirming the ruling of the trial court on the basis that DMI failed to properly preserve its objection to the admission of the exhibits. We find that DMI's arguments are without merit.
The review panel determined that DMI failed to preserve on appeal its argument that exhibits 3 through 9 were inadmissible because they did not comply with rule 10. The review panel stated that a medical report which does not comply with rule 10 is inadmissible as hearsay, but that DMI failed to object on the basis of hearsay. DMI argues that the review panel was incorrect. Though DMI does not mention this, the review panel also stated, "[E]ven if one were to disregard or otherwise overlook the failure of [DMI] to preserve a hearsay objection, [DMI's] appeal would be otherwise flawed." The review panel then determined that when all of the reports are read in conjunction with each other, the exhibits complied with the requirements of rule 10.
We recognize the concern of the review panel regarding DMI's objection to exhibits 3 through 9. A reading of the bill of exceptions appears to reflect that DMI objected on the basis of relevance. When asked if DMI objected to the admission of exhibits 1 through 29, DMI stated: "Yes. To Exhibits 3 through 9 on the basis of relevance. Those are medical records. Those records are not rule ten reports and cannot be used to prove causation." DMI's objection could be interpreted to be that the reports are not relevant because they do not comply with rule 10. Such an argument would be incorrect, because whether the report complies with rule 10 goes to the admissibility of the report as evidence which would otherwise be inadmissible hearsay.
An objection, based on a specific ground and properly overruled, does not preserve a question for appellate review on any other ground. State v. Fahlk, 246 Neb. 834, 524 N.W.2d 39 (1994); State v. Schrein, 244 Neb. 136, 504 N.W.2d 827 (1993). See Havlicek v. State, 101 Neb. 782, 165 N.W. 251 (1917). DMI's apparent misunderstanding of rule 10 seems to have resulted in a specific objection on the ground of relevance, which would not preserve an objection on the ground of hearsay. However, if we interpret DMI's objection to be on the ground of relevance and that the reports were inadmissible because they did not comply with rule 10, implied from its statement that the exhibits "are not rule ten reports," DMI properly preserved its argument on appeal. Nonetheless, DMI's objections were essentially without merit.
DMI argues that rule 10 requires that in order to be admissible, a medical report must be signed and must narrate the history, diagnosis, findings, and conclusions of the physician that made the report. DMI further argues that Baucom's exhibits 3 *104 through 9 failed to comply with rule 10 and are thus inadmissible. The review panel held that the reports, when read in conjunction with each other, satisfied rule 10 and were thus admissible. A reading of rule 10 reveals that DMI and the review panel are misconstruing the rule.
Rule 10 states in part:
A. Medical and Vocational Rehabilitation. The Nebraska Workers' Compensation Court is not bound by the usual common law or statutory rules of evidence; and accordingly, with respect to medical evidence on hearings before a single judge of said court, written reports by a physician or surgeon duly signed by him, her or them and itemized bills may, at the discretion of the court, be received in evidence in lieu of or in addition to the personal testimony of such physician or surgeon; with respect to evidence produced by vocational rehabilitation experts, physical therapists, and psychologists on hearings before a single judge of said court, written reports by a vocational rehabilitation expert, physical therapist, or psychologist duly signed by him, her or them and itemized bills may, at the discretion of the court, be received in evidence in lieu of or in addition to the personal testimony of such vocational rehabilitation expert, physical therapist, or psychologist. A sworn statement or deposition transcribed by a person authorized to take depositions is a signed, written report for purposes of this rule.
A signed narrative report by a physician or surgeon, vocational rehabilitation expert, or psychologist setting forth the history, diagnosis, findings and conclusions of the physician or surgeon, vocational rehabilitation expert, or psychologist and which is relevant to the case shall be considered evidence on which a reasonably prudent person is accustomed to rely in the conduct of serious affairs. The Nebraska Workers' Compensation Court recognizes that such narrative reports are used daily by the insurance industry, attorneys, physicians and surgeons and other practitioners, and by the court itself in decision making concerning injuries under the jurisdiction of the court.
(Emphasis supplied.)
The only requirements for a medical report to be admissible under rule 10, as emphasized above, are that the report be a medical report and be signed. DMI's statement that rule 10 requires every medical report to also be narrative and include the history, diagnosis, findings, and conclusion of the physician is inaccurate. Rule 10 merely states that when a report is a narration setting forth the history, diagnosis, findings, and conclusions of the physician and when the report is relevant to the case, the report must be considered evidence on which a reasonably prudent person is accustomed to rely in the conduct of serious affairs. This is clear because the court rule then specifically articulates why such reports must be considered as such, stating that such reports are used daily in making decisions concerning injuries. Clearly, the words "narrative," "history," "diagnosis," "findings," and "conclusions of the physician" are not elements that every report must have in order to be admissible under rule 10.
DMI cites to Johnson v. Ford New Holland, 254 Neb. 182, 575 N.W.2d 392 (1998), for the premise that a report is properly excluded if the report does not comply with rule 10. We do not disagree with this premise. However, the report that was properly excluded in Johnson was excluded because it was not signed. Johnson does not stand for the proposition that rule 10 requires that in order to be admissible, *105 a medical report must be signed, narrative, and include the history, diagnosis, findings, and conclusions of the physician. These are not requirements of rule 10. In fact, Johnson states, "[R]ule 10 allows the compensation court to admit into evidence medical reports that would not normally be admissible in the trial courts of this state, providing that those reports are signed." 254 Neb. at 190, 575 N.W.2d at 397.
All of these exhibits objected to by DMI contain physicians' signatures except exhibit 6. DMI does not argue that any of the exhibits are not medical reports. Accordingly, exhibits 3 through 5 and 7 through 9 were properly admitted into evidence by the trial court. It was error for the trial court to admit exhibit 6 under rule 10, because the exhibit does not contain a physician's signature. However, admission of this exhibit was harmless error. At no time did the trial court expressly rely on exhibit 6. Furthermore, exhibit 6 is merely a description of the surgery Baucom underwent. The exhibit contains no information with regard to causation, the extent of Baucom's disability, or costs of medical treatment. The remaining exhibits in the record sufficiently establish causation, disability, and benefits owed, without the use of exhibit 6.
The review panel affirmed the ruling of the trial court on the bases that DMI failed to preserve its objection to exhibits 3 through 9 and that the reports, when read in conjunction with each other, did comply with rule 10. We find that exhibits 3 through 5 and 7 through 9 each independently comply with rule 10. We further find that the trial court committed harmless error in admitting exhibit 6, which exhibit did not comply with rule 10. As such, the review panel reached the right result, albeit for the wrong reasons. Because a proper result will not be reversed merely because it was reached for the wrong reasons, we affirm. See Thornton v. Grand Island Contract Carriers, 262 Neb. 740, 634 N.W.2d 794 (2001).
3. AWARD OF BENEFITS
DMI next argues that the trial court erred in finding causation and in awarding medical expenses and permanent partial disability benefits. We first note that DMI does not argue that the court was clearly wrong in relying on Baucom's medical reports for any other reason other than that the reports were not admissible under rule 10.
With regard to causation, DMI argues that the trial court erred in finding causation, because the court relied upon a physician's statement found in exhibit 5, which exhibit DMI claims was inadmissible. Because we found that the trial court did not err in admitting exhibit 5, the trial court could rely on the statement to find that Baucom's work-related accident caused his knee injury which necessitated surgery for a total knee replacement. As such, the trial court was not clearly wrong in relying on exhibit 5.
Similarly, DMI argues that the trial court erred in determining that Baucom sustained a 38-percent permanent partial disability to his left leg and in awarding future medical expenses. Again, DMI argues only that the basis of the trial court's decision was from an inadmissible medical report, exhibit 5. As stated above, the trial court did not err in admitting exhibit 5 and thus was not clearly wrong in relying on the exhibit to find that Baucom suffered a 38-percent permanent partial disability to his left leg and is entitled to future medical expenses.
Finally, DMI argues that the only admissible evidence in the record regarding Baucom's injury was exhibit 39, the medical *106 report of DMI's expert, whose diagnosis obviously would entitle Baucom to a substantially smaller award. In light of our findings above, this argument is clearly without merit.
V. CONCLUSION
For the reasons stated above, we find that exhibits 3 through 5 and 7 through 9 were not admitted into evidence in violation of rule 10. We further find that while exhibit 6 did not comply with rule 10, admission of the exhibit was harmless error. Accordingly, we affirm the ruling of the trial court as affirmed by the review panel.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590995/ | 972 So. 2d 525 (2007)
Alphonso HAYDEN
v.
STATE of Mississippi.
No. 2006-KA-00854-SCT.
Supreme Court of Mississippi.
November 15, 2007.
Rehearing Denied January 31, 2008.
*527 Michael R. Farrow, Columbus, Phillip Broadhead, Oxford, attorneys for appellant.
Office of the Attorney General by Jeffrey A. Klingfuss, attorneys for appellee.
EN BANC.
DICKINSON, Justice, for the Court.
¶ 1. Alphonso Hayden was indicted by the Lowndes County Grand Jury for unlawful possession of a stolen vehicle. At trial, the State called Hayden's former attorney to testify that two documents produced to the State in discovery (a certificate of title and a bill of sale) were provided by Hayden to his attorney. This testimony allowed the State to argue that, because Hayden had actual possession of the documents (which had different vehicle identification numbers), he knew, or should have known, the vehicle had been stolen.
¶ 2. Hayden was convicted and sentenced as a habitual offender to serve ten years imprisonment, without parole. The questions presented are: (1) whether the attorney-client privilege was breached when the former attorney testified he received the two documents from his client; and (2) whether by removing the former attorney from the case so he could testify the trial judge violated Hayden's right to counsel guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article 3, Section 26 of the Mississippi Constitution.
BACKGROUND FACTS AND PROCEEDINGS
¶ 3. On May 28, 2003, a 2003 white GMC Yukon Denali, bearing vehicle identification number ("VIN") 1GKEK63U73J140390 was stolen from the parking lot of Royal Automotive Company in Atlanta, Georgia.[1] Five days later, a man identifying himself as Curtis Powell entered the Madison County Tax Collector's office in Ridgeland, Mississippi, and *528 submitted a title application for a white 2003 Yukon Denali, with VIN 1GKEK63U73J140390. The application represented that the Yukon had no lien-holders, and that Powell had purchased it from Herrin-Gear Chevrolet in Jackson, Mississippi.[2] Deputy Tax Collector Lisa Duvall issued Powell a Madison County vehicle tag bearing the number 838 MBE for the white Yukon.
¶ 4. In early June 2003, Jerome Miller, a 31-year resident of Columbus, but more recently a resident of Shuqualak in Noxubee County, had a chance meeting with Hayden, whom Miller had known for many years. Miller's wife was about to retire from the local school system and Miller was interested in purchasing her a vehicle as a retirement gift. Miller noticed Hayden's white Yukon, and engaged him in a discussion about the vehicle.
¶ 5. On Saturday, June 21, 2003, city policeman Andrew Cotton, who was on routine patrol on North 18th Street near Sims Scott Park in Columbus, noticed a white GMC Denali "weaving" and being driven in "a careless manner." By checking tag number 838 MBE, Officer Cotton learned that the vehicle was registered to Curtis Powell of Ridgeland. Officer Cotton issued the driver, Hayden, a Uniform Traffic Ticket for careless driving.
¶ 6. On July 7, 2003, two men entered the Lowndes County Tax Collector's office together, and one of the men presented Deputy Tax Collector Pamela Lang a document purporting to be a copy of a title application for a white 2003 GMC Denali. The application, which listed no lienholder, represented that Marvin Harris[3] had purchased the vehicle from Herrin-Gear Chevrolet in Jackson. Although at that time, Lang did not know the identities of the two men, she would later identify Hayden as the man who presented her with the title application.[4] Lang issued Hayden a Lowndes County tag bearing number 677 LNX, for the white 2003 GMC Denali.
¶ 7. Later, Miller had another chance meeting with Hayden at a muffler shop on Highway 82 in Columbus. Hayden was a passenger in a red GMC Denali being driven by a man who was unknown to Miller. Recalling that Miller was interested in purchasing a vehicle for his wife, Hayden mentioned that he had purchased the white Denali (which Miller had seen before) from the man with him. Hayden stated that this man would be willing to sell Miller the red Denali. Miller checked out the red Denali by running a CARFAX, which revealed no negative information, and that the red Denali had been purchased in Baltimore, Maryland. Based on this information, and because Hayden in essence "vouched" for the unknown man who was supposedly from Prentiss, Mississippi, Miller and the man reached an agreement on the terms of purchase for the red Denali.
¶ 8. Miller borrowed some "up-front money" from a local bank so that he could take immediate possession of the vehicle. The seller "signed his title over to Miller" *529 so that Miller could get a vehicle tag.[5] According to the agreement, Miller was to pay the balance of the purchase price when he obtained a title in his name and a tag for the vehicle.
¶ 9. On July 15, 2003, Miller's wife went to the Noxubee County Tax Collector's office to purchase the vehicle tag. However, because the VIN on the title did not match the VIN on the red Denali, Mrs. Miller was unable to obtain the tag. When Miller came home that day from fishing, Trooper Randy Ginn of the Mississippi Highway Patrol was waiting to discuss this case with him. Miller learned from Trooper Ginn that the red Denali he had purchased from the unknown man had been stolen.
¶ 10. Trooper Ginn was trained in automobile theft detection and identification, including the method for inspecting a VIN plate to determine if it was fake. According to Trooper Ginn, two areas of inspection for fake VIN plates are the rivets used to attach the VIN plate to the dashboard and the font and style of the numbers and letters on the VIN plate. When Trooper Ginn arrived at the Millers's residence on July 15, he looked at the VIN plate on the red Denali and immediately determined that the VIN plate was fake. When he interviewed the Millers that day, he also reviewed the certificate of title which listed Robert Watson[6] as the owner of the red Denali. Trooper Ginn learned from Miller that Hayden had been present during the transaction concerning the red Denali.
¶ 11. The following month, upon learning that Hayden could be found at East Mississippi Community College, Golden Triangle Campus, in Mayhew, Trooper Ginn made plans with other law enforcement officials to travel to the EMCC campus to talk with Hayden about the ongoing investigation concerning the Millers red Denali. Trooper Ginn learned from Miller that Hayden was driving a white 2003 GMC Denali; therefore, when Ginn arrived at the EMCC campus on August 18, 2003, he first looked for the white Denali.
¶ 12. Once the vehicle was located in the parking lot, Ginn looked at the VIN plate and concluded from his training that the VIN plate on Hayden's vehicle was fake. As Trooper Ginn would later testify at trial, "[t]he rivets that attached [the VIN plate] to the the dashboard were not of consistent with General Motors rivets, and the font and distinguishing characteristics of the letters and numbers in the VIN were not characteristic with General Motors VINs." The displayed VIN was 1GKEK63UX3J238295, the same VIN on the title application Hayden presented to deputy tax collector Pamela Lang to purchase a Lowndes County vehicle tag for the white 2003 GMC Denali.
¶ 13. Ginn went to the proper school administrator to receive permission to have Hayden removed from class. Instead of talking about the Millers red Denali, Trooper Ginn was by then interested in questioning Hayden about his white Denali. In due course, Ginn was able to determine that the white GMC Denali in Hayden's possession had been stolen from the Royal car dealership in Atlanta.[7] Upon learning that "Marvin Harris" had been *530 listed as the owner on the title application which Hayden presented to Pamela Lang at the Lowndes County Tax Collector's office to purchase a Lowndes County tag for the white Denali, Ginn attempted to locate Harris, to no avail.
¶ 14. In due course, the Lowndes County Grand Jury indicted Hayden for the crime of possession of stolen property. The indictment alleged, inter alia, that Hayden
on or about the 18th day of August, 2003, in the County aforesaid, did unlawfully, willfully, and feloniously, possess one 2003 GMC Yukon Denali, bearing vehicle identification number 1GKEK63U73J140390; said property having a total value in excess of $500.00, and having been feloniously stolen away from the said Royal Oldsmobile Co., Inc., and further that the said ALPHONSO HAYDEN knew or should have known that said property had been so stolen, in violation of MCA § 97-17-70; contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Mississippi.
¶ 15. The trial court allowed two amendments to the indictment. The first allowed the above language[8] to be stricken, and the second allowed Hayden to be charged as a habitual offender under Mississippi Code Annotated Section 99-19-81 (Rev.2007). The habitual-offender amendment alleged that Hayden had two prior felony convictions in which he received sentences of one year or more in a state or federal penitentiary.
¶ 16. At trial, Hayden was represented by attorney Gary Street Goodwin of Columbus.[9] On the first morning of trial, during a break in the voir dire, Hayden gave Goodwin two documents to be produced to the State. One of the documents purported to be a bill of sale, and the other purported to be a certificate of title. Both documents related to a white 2003 GMC Yukon Denali vehicle.
¶ 17. Consistent with the rules of discovery as codified in URCCC 9.04, Goodwin promptly tendered the documents to the State. Out of the presence of the jury, the trial judge discussed the documents with counsel. During the discussion, the trial judge noticed that the VIN on the bill of sale (1GKEK63U73J140390), did not correspond with the VIN on the certificate of title (1GKEK63UX3J238295).
¶ 18. Because a necessary element of proof regarding possession of stolen property concerned whether the defendant knew or should have known that the vehicle was stolen, the State wished to offer the newly-discovered documents into evidence to prove that, because of the discrepancy in the VIN's on these two documents, Hayden knew or should have known that the vehicle was stolen. However, the prosecutor opined that, since Hayden could not be compelled to be a witness against himself, the only witness available to testify concerning the bill of sale and certificate of title was Hayden's lawyer, Goodwin.
¶ 19. The judge called a recess to allow Goodwin to confer with Hayden. When court reconvened, the State served a subpoena on Goodwin. The judge found that Goodwin had a conflict of interest with his client because he "very well may be a witness in this case." Based on this finding, *531 the judge discharged Goodwin and informed Hayden he should retain another attorney. The judge ordered a mistrial and reset the case for trial at the next term of court. By September 28, 2005, Hayden had not retained new counsel, so the trial court appointed Michael Farrow as Hayden's counsel.
¶ 20. Trial thereafter commenced on March 1, 2006. During the trial, the State called Goodwin to testify. However, before Goodwin testified, the judge conferred with the attorneys outside the hearing of the jury, to lay out the ground rules concerning Goodwin's testimony. In essence, the judge ruled that the State could question Goodwin only about the discovery process and the source of the bill of sale and certificate of title.
¶ 21. The direct and cross-examination of Goodwin consumed barely more than eight pages of transcript. During the State's direct examination, Goodwin testified that he previously represented Hayden. He testified about the discovery process in criminal cases, stating that he had made a request for documents in discovery, and that he was obligated, under the rules, to provide documents to the State. Goodwin further stated that, prior to the morning of trial, he had not provided the State with any reciprocal discovery. On the morning of trial, he said, he produced to the State the bill of sale and certificate of title, and he had received the documents from Hayden. In light of this testimony, the two documents were admitted into evidence. Finally, Goodwin testified that the first trial ended in a mistrial.
¶ 22. Hayden's counsel began a cross-examination of Goodwin by asking whether he and Hayden discussed the two documents. When Goodwin refused to answer without a waiver of the attorney-client privilege, the judge sent the jury out and engaged in a lengthy and detailed discussion with counsel and Hayden about the events which led up to Goodwin's testimony. He informed Hayden's counsel that, if questions were asked concerning conversations between Goodwin and Hayden, the attorney-client privilege would be waived. The judge carefully informed Hayden of his rights with respect to the attorney-client privilege. Thereafter, Hayden's counsel informed the court that she had no more questions for Goodwin.
¶ 23. In addition to Goodwin, who was the seventh witness to testify, the State called Jerome Miller, Yvette Worthington, Lisa Duvall, Pamela Lang, Vincent Hughes, Andrew Cotton, and Randy Ginn. Hayden was the only witness to testify in the defendant's case-in-chief, after which the State called Trooper Ginn as a rebuttal witness.
¶ 24. The jury returned a verdict of guilty. Hayden filed a motion for a new trial, which was denied. At the conclusion of the subsequent sentencing hearing, the judge found Hayden was a habitual offender and sentenced him to serve a term of ten years' imprisonment, without parole, in the custody of the Mississippi Department of Corrections, and to pay a fine of $10,000. Hayden timely perfected his appeal to this Court.[10]
*532 ¶ 25. Hayden presents two issues for our review: (1) "Whether the trial court erred in denying the appellant the protection of the attorney-client privilege when, after it removed the appellant's retained counsel, it required said counsel to testify against his former client as a witness for the prosecution that the appellant gave him documents introduced by the State;" and (2) "Whether the appellant was denied his fundamental right to counsel guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article 3, Section 26 of the Mississippi Constitution when the trial court removed the appellant's retained counsel."
ANALYSIS
¶ 26. Hayden's first assignment of error requires that we analyze the trial judge's conduct and Goodwin's testimony for any evidence or indication of a breach of the attorney-client privilege which existed between Goodwin and Hayden.
I. Attorney-Client Privilege
The documents were admissible into evidence.
¶ 27. We begin by pointing out that the issue before us is not whether the two documents provided by Hayden to Goodwin were properly admitted into evidence at trial. The documents were admissible because they were both relevant and authenticated. Our rules of evidence define relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Miss. R. Evid. 401. A reasonable juror could certainly conclude that, because Hayden produced the fraudulent documents in discovery, he knew the vehicle was stolen. Thus, the documents clearly were relevant.
¶ 28. The documents were also authenticated. Our rules of evidence state that "[t]he requirements of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Miss. R. Evid. 901. Thus, to authenticate the documents, the State had only to show that the documents were what the State claimed them to be, that is, that they were a purported certificate of title and bill of sale which had been produced by Hayden in discovery. Hayden offered no objection to the authenticity of the documents, nor could he have, since he produced them. That the documents were admissible, however, does not address the question of whether the attorney-client privilege was breached when Goodwin testified that he received the documents from Hayden.
Did Goodwin's testimony violate the attorney-client privilege?
¶ 29. Hayden's counsel, Goodwin, produced the documents to the State; however, this fact, in and of itself, does not prove that Hayden actually knew about them. Goodwin could have gotten the papers anywhere. For the documents to be relevant, the State needed to tie them to Hayden, personally. In other words, only if Hayden was the source of the documents would they tend to prove one of the elements of the crime that Hayden knew, or reasonably should have known, the Denali was stolen. This analysis in turn leads us to the question of whether Goodwin's testimony identifying Hayden as the source of the documents violated the attorney-client privilege.
¶ 30. Hayden correctly points out that "a confidential communication may be made by acts as well as by words." McCormick, Evidence § 89, 183 (1972). Thus, as a general rule, an attorney's testimony *533 that he or she received items from the client would violate the attorney-client privilege. However, as with most rules, there are exceptions.
¶ 31. In Jackson Medical Clinic for Women, P.A. v. Moore, 836 So. 2d 767 (Miss.2003), this Court stated that "the privilege relates to and covers all information regarding the client received by the attorney in his professional capacity and in the course of his representation of the client." Id. at 771 (internal citation omitted). However, this Court went on to point out that, "while only the client may invoke the privilege, the client may also waive the privilege in certain circumstances. Once the client has effectively waived the privilege, the attorney is competent as a witness regarding matters otherwise within the scope of the privilege." Id.
¶ 32. The necessity for a waiver of the privilege, however, presupposes that the particular communication to the attorney was privileged to begin with. Many communications from clients to their lawyers are not privileged because they do not meet the confidentiality test of Mississippi Rules of Evidence 502, which states:
A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client. . . .
Miss. R. Evid. 502(b). "A communication is `confidential' if not intended to be disclosed to third persons. . . ." Miss. R. Evid. 502(a)(5). For instance, statements made by a client in the presence of others, with no expectation of confidentiality or privacy, generally are not privileged. Rogers v. State, 928 So. 2d 831, 838 (Miss.2006). Nor are statements made by a client to the attorney, which the client intends to be relayed to third persons.[11]
¶ 33. It is equally true that a client may at first have no expectation of confidentiality or privilege with respect to a particular communication, but later because of the circumstances, wishes the communication to be considered confidential. And where a client clearly communicates this change of mind to the attorney assuming the information has not already been disseminated, and thus the privilege waived the attorney must respect the client's wishes and thereafter treat the communication as confidential. This brings us to the facts of this case.
¶ 34. The State argues that "once [the] defendant presented the documents to his counsel for the purpose of being used at trial in his defense he waived [the] privilege with regard to those specific documents." This argument assumes that the subject of Goodwin's testimony was privileged an assumption with which we do not agree.
¶ 35. Instead, we find that, when Hayden provided the documents to Goodwin, he expressed no intention or expectation that his act, or the documents themselves, would be considered by Goodwin or anyone else to be confidential or privileged. And even though subsequent circumstances may have caused Hayden to change his mind, it was too late because, in three separate places in the record, we find clear evidence that the trial judge already had been provided the documents and had been informed that Hayden was the source.
¶ 36. On the morning Hayden produced the documents to Goodwin, the trial judge noticed the discrepancy in the VINs on the *534 two documents. In discussing the issue with the attorneys, the judge stated: "Mr. Goodwin had three documents that his client had given him, I believe, from recollection this morning."
¶ 37. Later that same morning, following a brief recess, the judge again conferred with the attorneys concerning the documents. During that discussion, the judge stated: "Mr. Goodwin is not at fault for this situation, Mr. Hayden is. He has turned these documents over, and as I've said, Mr. Goodwin was duty-bound by law to do just as he's done."
¶ 38. Months later, during a break in Goodwin's testimony at trial while the jury was out, the trial judge stated:
On the morning of August 17th, 2005, we were preparing to try this case, this very case, and during the process of voir dire there was an indication that Mr. Goodwin had received some documents from his client that he might offer at trial, and I I believe I remember that was his exact words.
¶ 39. The trial judge made all three of these statements in the presence of Goodwin, Hayden, and the State. No one objected concerning the judge's statements, and no one indicated that his recollection was inaccurate. Thus, the record clearly indicates that prior to making any ruling concerning Goodwin the trial judge already had been informed that Hayden was the source of the two documents. And it is equally clear that the only two persons who could have communicated this information were Hayden and Goodwin. This is compelling evidence that, when Hayden provided the documents to Goodwin, there was no expectation of confidentiality or privilege concerning the documents or the fact that Hayden provided them. To the contrary, it is compelling evidence that Hayden intended the information to be communicated to the court and used in his defense.
¶ 40. A lawyer's representation to the court is binding on the client. Rogers v. Rogers, 662 So. 2d 1111, 1115 (Miss.1995) (a lawyer's statement concerning the amount of child support owed by his client considered an admission under the Mississippi Rules of Evidence and was binding on his client); Grand Court of Calanthe v. Downs, 98 Miss. 740, 743, 53 So. 417, 418 (1910) (stating a client is bound "by every act which the attorney does in the regular course of practice. . . . ").
Did Goodwin reveal confidential information?
¶ 41. In addressing Hayden's confidentiality argument, we look to Rule 502(d)(1), which clearly and specifically states that there is no privilege where "the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud."
¶ 42. The fraudulent documents as supplied by Hayden were to be presented to the State, the Court, and the jurors in Hayden's defense. Because Hayden supplied the documents, he clearly meets the "reasonably-should-have-known" test of Rule 502(d)(1). Thus, no privilege existed with respect to the documents, their source, or their content.
¶ 43. In accordance with Uniform Circuit and County Court Rule 9.04(c)(2),
[T]he defendant shall, subject to constitutional limitations, promptly disclose to the prosecutor and permit the prosecutor to inspect, copy, test and photograph the following information and material which corresponds to that which the defendant sought and which is in the possession, custody, or control of the defendant *535 . . . (2) Any physical evidence and photographs which the defendant may offer in evidence. . . .
(Emphasis added)
¶ 44. Hayden exercised his right to seek discovery regarding his case, which generated a reciprocal duty to disclose to the State all documents which he might have offered into evidence at trial. Thus, under such circumstances, documents furnished to an attorney by a client have no confidential status, a prerequisite to a claim of a privilege.
¶ 45. If, as the State might reasonably have argued, Hayden had actual knowledge he was offering false evidence, the case before us is nothing more than an attempt by an accused to use manufactured evidence to avoid incarceration. In offering false evidence, Hayden further attempted to embroil his attorney in his nefarious scheme. Our rules of evidence, including those related to the attorney-client privilege, were promulgated in order to "secure fairness in the administration . . ., and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and the proceedings justly determined." Miss. R.Evid. 102 (emphasis added).
¶ 46. It appears that the certificate of title and/or the bill of sale which Hayden furnished to his attorney were counterfeit. If this is the case, Hayden's actions were not only a fraud upon the court, but also a crime under Mississippi Code Annotated Section 97-9-125(Rev.2006).[12] Hayden's attorney unwittingly was involved in this fraud/crime, therefore destroying any privilege or confidentiality which arguably might have existed. Thus, neither the documents themselves nor the fact that they were supplied to Goodwin by Hayden, bear a "confidential" label.
Was it improper for Goodwin to testify?
¶ 47. The issue of whether it is improper for a client's former attorney to testify was not directly raised in this appeal. However, because the issue indirectly influences our decision today, we briefly address it.
¶ 48. Under the facts of this case, we find no impropriety associated with the trial court's requirement that Goodwin testify. With certain limited exceptions, "no person has a privilege to refuse to be a witness." Miss. R. Evid. 501(1). Specifically, the rule states: "Except as otherwise provided by the United States Constitution, the State Constitution, by these rules, or by other rules applicable in the courts of this state to which these rules apply, no person has a privilege to: (1) Refuse to be a witness. . . ." After diligent search, we are unable to find any constitutional provision or judicial rule which prohibited Goodwin's testimony.
¶ 49. For the reasons stated, we find no merit to Hayden's argument that Goodwin's testimony violated the attorney-client privilege.
II.
¶ 50. Hayden next argues that, by dismissing his attorney, the trial judge violated Hayden's right to counsel guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article 3, Section 26 of the Mississippi Constitution. Our standard of review on such *536 constitutional issues is de novo. Baker v. State, 802 So. 2d 77, 80 (Miss.2001).
¶ 51. As to this question, Hayden provides us with the appropriate authority, for he tells us in his brief:
From the time of independence from the crown of England, our forefathers and new states legislated and constitutionalized the right to counsel. From these early beginnings, the right has been understood to prevent the government from unjustifiably denying an accused the representation of counsel of his choice. In the rare instances where a trial court has deprived an accused of this right, the proper remedy has been a reversal of conviction and a new trial. "In sum, the right at stake here is the right to counsel of choice . . . the violation is complete." United States v. Gonzalez-Lopez, [548 U.S. 140,] 126 S. Ct. 2557, 2562[, 165 L. Ed. 2d 409] (2006). The violation in this case is a "structural defect" requiring a new trial. Id.
Both the United States Constitution and the Mississippi Constitution guarantee a person accused of a crime due process of law. To accomplish that end, the Sixth Amendment and Article 3 guarantee every criminal defendant the right "to Counsel." U.S. Const. amend. VI, XIV; Miss. Const., Art. 3, Section 26. An important component of this right to counsel is the presumption that citizens may retain counsel of their choice to represent them at trial, especially in a criminal prosecution. See Wheat v. United States, 486 U.S. 153, 159[, 108 S. Ct. 1692, 100 L. Ed. 2d 140] (1988). It is understood that a defendant should be allowed "a fair opportunity to secure counsel of his own choice." Powell v. Alabama, 287 U.S. 45, 53[, 53 S. Ct. 55, 77 L. Ed. 158] (1932). While there are exceptions to retained counsel of choice, such as conflicts arising from representation of multiple defendants, courts are aware that "the government may seek to `manufacture' a conflict in order to prevent a defendant from having a particular able counsel at his side." Wheat, 486 U.S. at 163[, 108 S. Ct. 1692]. It is a fundamental principle of our system of justice that the courts are charged with protecting the rights guaranteed by our Constitution. Rose v. Lundy, 455 U.S. 509, 518[, 102 S. Ct. 1198, 71 L. Ed. 2d 379] (1982) (citing Ex parte Royall, 177[117] U.S. 241, 251[, 6 S. Ct. 734, 29 L. Ed. 868] (1986)).
¶ 52. In essence, after documenting his constitutional right to counsel of his choice, Hayden then recognizes that his right is not unlimited. Although there are numerous exceptions, the one Hayden highlights is a conflict of interest. The trial judge pointed out the conflict of interest created by Hayden's production of the incriminating documents. The general rule is that an attorney may not proceed with the representation of a client with whom the attorney has a conflict of interest. Littlejohn v. State, 593 So. 2d 20, 23 (Miss.1992). The existence of the conflict was sufficient for, and in fact required, Goodwin's removal as counsel. We find no evidence or indication that the conflict was "manufactured" in order to deprive Hayden of Goodwin's services.
¶ 53. An exception to the general rule stated above is where the client waives the conflict of interest. In this case, Hayden might very well have proceeded with Goodwin as his attorney, had he waived the conflict of interest. Additionally, he simply could have stipulated to the single fact which required Goodwin's testimony, that is, that the documents were provided by Hayden. Such stipulation would have made Goodwin's testimony unnecessary.
¶ 54. Finally, we carefully have reviewed the record regarding Hayden's representation *537 following Goodwin's removal. We find no indication that Hayden suffered prejudice by proceeding with his new counsel.
¶ 55. For the reasons stated, Hayden's argument on this point is without merit.
CONCLUSION
¶ 56. For the reasons stated, we find Hayden's two assignments of error to be without merit. Specifically, we find no breach of the attorney-client privilege, and we find that Hayden was not deprived of any constitutional right. Thus, we affirm the judgment of the Circuit Court of Lowndes County.
¶ 57. CONVICTION OF POSSESSION OF STOLEN PROPERTY OVER $500.00 AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER AND PAY A FINE IN THE AMOUNT OF $10,000.00, AFFIRMED. SENTENCE SHALL NOT BE REDUCED NOR SUSPENDED NOR WILL APPELLANT BE ELIGIBLE FOR PAROLE, PROBATION, EARLY RELEASE, GOOD TIME CREDIT, OR ANY WEEKEND OR OTHER TYPE PASS.
SMITH, C.J., EASLEY, RANDOLPH AND LAMAR, JJ., CONCUR. RANDOLPH, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY SMITH, C.J., DICKINSON AND LAMAR, JJ. CARLSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER AND DIAZ, P.JJ., AND IN PART BY GRAVES, J. GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, P.J., AND IN PART BY WALLER, P.J. AND CARLSON, J.
RANDOLPH, Justice, Specially Concurring.
¶ 58. I fully concur with Justice Dickinson's well-reasoned and disciplined analysis of the Mississippi Rules of Evidence, the Uniform Rules of Circuit and County Court Practice and the Mississippi Rules of Discipline and Professional Conduct. Although I have the utmost respect for my colleague, Justice Carlson, prudence requires I address the dicta from Flowers and Turner which was relied upon in his dissent. See Flowers v. State, 601 So. 2d 828 (Miss.1992); Turner v. State, 721 So. 2d 642 (Miss.1998).
¶ 59. Whether one labels it obiter dictum or judicial dictum is the only issue for debate. Regardless of that rhetorical question, no serious argument can be advanced that the borrowed language from the aforementioned cases was supported by prior decisions of this Court, learned treatises, opinions adopted from sister states, the Mississippi Rules of Evidence, the Mississippi Rules of Professional Conduct and the Mississippi Rules of Discipline, or any other authoritative source. Both Flowers and Turner fail to address Mississippi Rule of Evidence 501(1) that "no person has a privilege to refuse to be a witness," with limited exception. In neither the case sub judice, nor in Flowers or Turner, were limited exceptions present.
¶ 60. Justice Carlson's dissent suggests that it is "harmful and prejudicial" for an attorney to testify against his former client, relying on Flowers. Flowers utilized an incomplete professional conduct analysis, after finding admissibility under the controlling Rules of Evidence, and then conversely opined exclusion would be proper, but only when applying an alternative factual scenario. Flowers, 601 So.2d *538 at 831. Finally Flowers concludes its convoluted analysis by finding the testimony was unnecessary and cumulative, but nonetheless harmless. Id. at 832. On the other hand, true to the majority opinion, Flowers illustrated exceptions by citing a Comment to Mississippi Rule of Professional Conduct 1.6, which states, "such information may be revealed by the lawyer, i.e., to prevent a criminal act. . . ." Id. at 832, or when the information has become generally known. Hayden was clearly attempting to use his attorney in furtherance of a criminal act, when Hayden caused information to be generally known, thus meeting both exceptions, although I submit the admissibility of evidence is controlled exclusively by the Mississippi Rules of Evidence.
¶ 61. The dicta in Turner v. State, 721 So. 2d 642, 649-50 (Miss.1998), proposes that "prosecutors should refrain from using a prior attorney as a witness against the defendant, regardless of the circumstances." However, painting with such a broad brush without citation to a single case, statute or rule as authority, and imposing a "one-size-fits-all" rule on our bench and bar is unwise. This prohibitory language is in direct contravention of our Rules of Evidence, not to mention violative of the Rules of Professional Conduct. See M.R.E. 501(1). See also M.R.P.C. 1.6. The Mississippi Rules of Professional Conduct may complement the Mississippi Rules of Evidence when a client seeks to ensnare his attorney in a crime of fraud, but unquestionably the Mississippi Rules of Evidence control the admissibility of evidence.[13] The Turner court found the defendant's claim procedurally barred and without merit, and correctly found there was no breach of attorney/client privilege. Turner, 721 So.2d at 649.
¶ 62. We should be ever cautious and prudent in announcing generalized rules of conduct before issuing condemnations and proclamations which contravene our Rules of Evidence. To do otherwise exposes our finite ability to foresee the future, and places constraints on that which was not perceived or foreseen, creating unintended results, and defeating the overall purpose of justice, i.e., the ascertainment of the truth. See M.R.E. 102.
SMITH. C.J., DICKINSON AND LAMAR, JJ., JOIN THIS OPINION.
CARLSON, Justice, Dissenting.
¶ 63. Because I find reversible error in the State's calling Hayden's former counsel, Gary Goodwin, as a witness in the States's case-in-chief to testify against his former client, Hayden, I respectfully dissent. The majority opinion, authored by Justice Dickinson and joined by some of my learned colleagues, very ably sets out the relevant facts and I thus deem it unnecessary to give a detailed recitation of the facts, other than for the purpose of hopefully making my point.
¶ 64. As noted by the majority, Hayden's case was first called up for trial in the Circuit Court of Lowndes County, Judge James T. Kitchen, Jr., presiding. Hayden was represented by his retained counsel of choice, Gary Street Goodwin of Columbus. On the day of trial, Alphonso Hayden presented to Goodwin documents which purported to be a bill of sale and a *539 certificate of title to the white 2003 GMC Yukon Denali vehicle. Consistent with the rules of discovery as codified in URCCC 9.04, Goodwin promptly tendered these documents to the prosecution. After reviewing the documents, the prosecutor noticed that the VIN on the bill of sale did not correspond with the VIN on the certificate of title. The VIN on the bill of sale was 1GKEK63U73J140390; however, the VIN on the certificate of title was 1GKEK63UX3J238295.
¶ 65. On the same day the State received the documents, the State issued a subpoena for Goodwin. When later confronted with this factual scenario, the trial court stated "[t]he dilemma now the Court has is Mr. Goodwin very well may be a witness in this case, although the rules do not allow for such, and the case law does not." Although I will later discuss in more detail the events regarding the trial court's discharge of Goodwin as Hayden's attorney since Goodwin was now a subpoenaed witness in the case, suffice it to state here that, as pointed out by the majority, the trial judge determined that there was a conflict with Goodwin continuing as Hayden's attorney. Therefore, the trial court discharged Goodwin and informed Hayden he would have to retain another attorney. In the end, the trial court entered an order granting a mistrial and resetting the case for trial at the next term of court. By September 28, 2005, Hayden had not retained counsel, and the trial court therefore appointed Michael Farrow as Hayden's counsel.
¶ 66. During the second trial, the assistant district attorney, Charlie Hedgepeth, called Hayden's previously-retained counsel, Gary Goodwin, to testify. Over the objection of Hayden's new trial counsel, the trial judge permitted Goodwin to testify that he previously had represented Hayden on these charges and that he had received these documents from Hayden on the day of trial. The prosecutor proceeded to question Goodwin about the discovery process and whether Hayden had delivered any discoverable matters to him. In particular, the prosecutor questioned Goodwin about the bill of sale and certificate of title. Goodwin testified that Hayden had handed him those two documents immediately before the commencement of trial, while they were in a witness room, and that during a recess of the voir dire examination, he (Goodwin) had delivered these two documents to the prosecutor to comply with the discovery rules. Goodwin further testified that, because of the late presentation of the two documents to the prosecutor, the trial judge declared a mistrial and continued the trial of the case until the next term of court in Lowndes County. I will address additional testimony from Goodwin, infra.
¶ 67. As Hayden's counsel correctly opined in his appellate brief, "[t]his case is very fact-intensive." With this in mind I now return to the first trial, when, on the day of trial, Hayden presented the bill of sale and certificate of title to Goodwin, who in turn produced these two documents to the prosecutor in compliance with URCCC 9.04, our discovery rule applicable to criminal cases. The attorneys quickly found themselves in chambers with the trial judge concerning this last-minute production of documents by Hayden. After the usual prosecutor/defense lawyer dispute as to whether discovery had been properly conducted by the parties, and who had or had not complied with discovery, the following exchange occurred with Judge Kitchens, Mr. Hedgepeth, the prosecutor, and Mr. Goodwin, Hayden's retained attorney, concerning the bill of sale and certificate of title:
BY THE COURT: How do you propose to get these into evidence?
*540 BY MR. GOODWIN: I don't know that I'm going to offer them into evidence at this point, Your Honor. I think the only way they come into evidence is through my client.
BY THE COURT: I was I was
BY MR. GOODWIN: And I don't know that I mean I'm sure at some point we're going to have a Peterson Hearing.
BY THE COURT: Sure.
BY MR. GOODWIN: And and I don't know whether he'll testify or not. And I don't know what my advice to him will be at that point.
. . . .
BY THE COURT: Because see what this purports to show is that Alphonso Hayden bought a vehicle from Curtis Powell. It is a Yukon Denali 2003, and it gives the VIN Number 1GKEK63U73J140390, and the next document I see is and I'm assuming this is the alleged Yukon Denali that Mr. Hayden was alleged to be driving in the Defense Exhibit 1 or 2, when he was arrested, and Serial Number 1GKEK63UX3J238295, which appears to be a different VIN number, and therefore you
BY MR. HEDGEPETH: I may want to use that then, Your Honor.
BY THE COURT: It's two different VIN numbers. Mr. Goodwin, do you need to confer with your client? And this is the one that Marvin Harris, the road and bridge tax, so it is a different VIN number after a point. 1GKEK6 is the same. Then it changes after that no, after 1GKEK63, and then after that it changes. The VIN number is a different VIN number. Different numbers.
BY MR. GOODWIN: I see that.[14]
(Emphasis added). After a brief recess, the following exchange occurred:
BY THE COURT: Court reporter, we are back on the record in the matter of State of Mississippi v. Alphonso Hayden. This is Cause Number 2004-0645-CR1. We have had a number of motions and a number of issues that we have talked about today, and probably one of the more innocuous matters I thought was going to be a discovery issue.
Mr. Goodwin had three documents that his client had given him, I believe, from recollection this morning. Mr. Goodwin has requested reciprocal discovery in this matter, and under his obligations under the Rules of Professional Conduct and and other rules, when he gets a matter in discovery or that is turned over to him, he has a reciprocal duty to turn that over to the State of Mississippi.
Mr. Goodwin did that, as required by the law and by the rules.
The State had the had some concerns about the document, because it had been supplied to them this morning.
We went ahead and ruled on the other motions, a motion to dismiss for failure to provide a speedy trial and motion in limine to keep certain evidence from the jury that was probably prejudicial and not relevant, given the few facts that I had before this Court.
*541 So we had ruled on those, and as we go to rule on the motion for late disclosure on the evidence, the Court is going through the evidence and asking the attorneys questions about it. And it's important at this point for the Court to remind the record that this defendant is charged with possession of stolen property; that being a 2003 Yukon Denali that has a serial number on it.
All right. Part of the proof in receiving stolen property or being in possession of stolen property is that you knew or should have known that the property was stolen.
As we were going through the evidence, and I believe it was a bill of sale, a certificate of title, and a bridge and roadbasically a tag receipt, showing that you had paid your taxes on the vehicle, there are two different VIN Numbers on this vehicle.
One isone set of numbers is on the State of Mississippi Road & Bridge Privilege Tax and registration receipt, and the certificate of title, and there is yet a totally different VIN number on the bill of sale that has Mr. Alphonso Hayden's signature on it.
This bit of evidence very well may be used by the State in its case to show that Mr. Hayden knew or should have known that the vehicle in question was stolen, because what it shows is a VIN number that has nine different either letters or numbers than the onethan the ones that are on thethe registration receipt and the certificate of title. The problem, as the Court sees it, is that the fact that Mr. Goodwin did what by law he's required to do, and turned this document over to the state, or documents, has now potentially made him a witness in this case. As I am given to understand, the State is either going to make a motion to have Mr. Goodwin served as a witness orhas the subpoena been issued?
BY MR. HEDGEPETH: May I, Your Honor?
BY THE COURT: You may.
BY MR. HEDGEPETH: Your Honor, for the record, after having a chance to review the documents and talking with the officers, thewith the VIN numbers being so different, and one of them being the true VIN number of the stolen vehicle and the second VIN number is actually the correct number on the VIN plate in the vehicle when it was seized from the defendant, which shows to be off of a vehicle from Silverthorne, Colorado, which is a total false VIN for that vehicle that hehe had, we believe that that shows very culpatory (sic) evidence toward whether or not he knew or should have known the vehicle was stolen.
And we wereI talked with the officers about introducing those documents, and we made the decision that we would try to introduce those.
Then I thought about how I would do that. The officer's couldn't testify to it. The only person that I could call as a witness is the person that gave me the documents, and that is Mr. Goodwin. So therefore I have requested a subpoena be issued for Mr. Goodwin. The bailiff in the courtroom, Ms. Lovick, has it, and I would ask her to serve Mr. Goodwin with that at this time.
BY THE COURT: All right. For the record, court reporter, Mr. Goodwin has been served a copy of a subpoena in this matter. These three documents were provided to the State by Mr. Goodwin, as required by law, by the Rules of Professional Conduct.
It was not work product, because it was supplied, and Mr. Goodwin had requested reciprocal discovery, and Mr. Goodwin *542 has done everything that the law requires him to do. He has been above board, and he has turned that information over to the State.
The dilemma now the Court has is Mr. Goodwin very well may be a witness in this case, although the rules do not allow for such, and the case law does not. There's an old case fromin the early 200s of the Southern Reporters, I can't remember the exact page now, but I can find it, or the case.
It involved a couple of co-defendants in ain a drug case, andand as I recall, the defendants were two ladies. I will get the case in a minute. It will come to mind.
But in that case, the defense lawyer continued on in the representation, person was convicted, and the Supreme Court chastised the lawyer and said, basically, thou shall not do that.
So I have an analogous situation here, not of Mr. Goodwin's making, but of Mr. Hayden's making. Mr. Goodwin is not at fault for this situation, Mr. Hayden is. He has turned these documents over, and as I've said, Mr. Goodwin was duty bound by law to do just as he's done. Therefore, I would be in the position of putting Mr. Hayden's attorney in a hopeless conflict, I think, because either Mr. Goodwin would have to be called to the stand, which would result in an immediate mistrial, or Mr. Goodwin would have to stipulate that these documents were given to him by Mr. Hayden.
Then, in the same case, Mr. Goodwin would have to try to advise Mr. Hayden whether it would be in his best interest to take the stand or not take the stand. Prior to those documents, it may have very well have been in Mr. Hayden's best interest not to take the stand.[15]
But if these documents are stipulated to, and that they came from Mr. Hayden, then I don't see how Mr. Goodwin can very well make thatthat advisement of whether to take the stand or not.
As I've said, Mr. Goodwin has done everything that the law requires of him. This is not of Mr. Goodwin's making.
This is one of those rare cases when the Court believes that manifest necessity requires that I mistry this case.
Also, Mr. Hayden, I think that I'm going to have to inform you that you are going to have to hire another lawyer. Because Mr. Goodwin, unless you stipulate at some future trial that these documents came from you, Mr. Goodwin is still going to be in that same position of being called as a witness. You have now made your lawyer a witness in this case, or in this case and in the future. Mr. Goodwin cannot continue his representation.
The Court is of the opinion that any funds that Mr. Goodwin has received in defense of you in this case has been earned, and you are not entitled to get the money back from him, because this is of your making, not of his.
He got ready to try the case and has argued these motions this morning effectively to limit some of the evidence that was going to come in against you.
Accordingly, I believe that I have no choice but to, one, declare a mistrial in this case, and two, remove Mr. Goodwin in this case because he is a potential witness in this case.
*543 Do you understand what I'm saying, Mr. Hayden?
BY THE DEFENDANT: Yes, sir.
. . . .
Mr. Goodwin ably argued that motion before hequite frankly, before he or the State realized the apparent conflict. The apparent conflict only became evident, Mr. Hayden, when the Court was reading the information that you had supplied in open court on the record, and the Court read the different VIN numbers and it showed two different VIN numbers apparently on the same vehicle that made this become an issue of whether you knew or should have known that this vehicle was stolen.
So therefore, the Court is of the opinion that this case should be mistried and that Mr. Goodwin will, by law, be removed from this case, because he is a potential witness, and he has been served as such.
Do you understand what I'm saying, Mr. Hayden?
BY THE DEFENDANT: Yes, sir.
BY THE COURT: Mr. Goodwin?
BY MR. GOODWIN: Might I just inquire of the Court, I don't know what my defendant's financial position is, but as I understand what the Court is saying, that I amI amI am hereby discharged, but thatandthis is what I want to be able to advises my client is, if he had another attorney, and knowing and counseled with that attorney and entered into a document that waived my conflict, would I still be allowed to proceed, assuming I could reach a stipulation with the District Attorney regarding the admissibility of that document without me taking the stand?
BY THE COURT: I don't believe that you could at this point
BY MR. GOODWIN: Okay.
BY THE COURT:Mr. Goodwin. I believe that you are
BY MR. GOODWIN: Hopelessly and forever conflicted.
BY THE COURT: Absolutely. I think you haveI think you have done the the right thing to do, you've done what the law requires, and I think because of that thethe Court does not believe that you can proceed under any circumstances.
(Emphasis added).
¶ 68. In considering this issue, I am mindful of the fact that I am reviewing a trial judge's decision concerning the admissibility of evidence. This Court consistently has held that the standard of review regarding the relevancy and admissibility of evidence is abuse of discretion. Robinson v. State, 940 So. 2d 235, 238 (Miss. 2006); Palmer v. State, 939 So. 2d 792, 794-95 (Miss.2006); Flowers v. State, 601 So. 2d 828, 831(Miss.1992). Thus, "a trial judge enjoys a great deal of discretion[,]" and unless the trial judge "abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this ruling." Robinson, 940 So.2d at 238; see also Flowers, 601 So.2d at 831. Additionally, "[t]he discretion of the trial judge must be exercised within the boundaries of the Mississippi Rules of Evidence." Flowers, 601 So.2d at 831.
¶ 69. I see no reason to discuss this case in the context of Rules 1.6 and 3.7 of the Mississippi Rules of Professional Conduct and related cases, concerning the attorney-client privilege as it relates to confidentiality and lawyers being called as witnesses. Nor is this a case in which I deem it necessary to address Mississippi Rule of Evidence 502 pertaining to the lawyer-client privilege. Likewise, I am not inclined to address this issue, as suggested by Hayden's counsel, from the standpoint of considering how foreign jurisdictions *544 have dealt with the "source" of disputed documents or information. Instead, in my opinion, this case turns on our prior criminal cases in which we addressed the issue of a defendant's former lawyer testifying for the prosecution.
¶ 70. In Flowers v. State, 601 So. 2d 828 (Miss.1992), the defendant made incriminating statements to a polygraph examiner with his lawyer present. The polygraph examiner had advised Flowers of his Miranda rights prior to administering the polygraph examination. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). By the time of trial, Flowers had a different lawyer and the State called Flowers's former attorney to testify about Flowers's incriminating statements. This Court affirmed Flowers's conviction applying a harmless-error analysis, since the polygraph examiner had also testified concerning these incriminating statements. But the Court found that the trial court had committed error in allowing Flowers's former attorney to testify about these statements. Additionally, while this Court addressed this issue by analyzing the Mississippi Rules of Professional Conduct and Mississippi Rule of Evidence 502, we also discussed the potential harmful and prejudicial effect of a lawyer in essence testifying against the lawyer's former client:
A lawyer's job at trial is to act as an advocate for his client. If the lawyer becomes a witness at the trial, it is easy to see how the jury could be confused by this dual role. Should his testimony be taken as proof or just a comment on the proof? Although [the former attorney] was not still representing Flowers at the time of trial, he had previously represented him in this same matter. It follows that the jury may have given his testimony more weight than that of the average lay witness. The fact that [the former attorney] no longer represented Flowers and testified against him may even have been taken to mean that once [the former attorney] learned what Flowers had done he wanted to help convict him rather than represent him. We can only speculate as to what [the former attorney's] testimony meant to the jury.
. . . .
It was foolish of the prosecution to call [the former attorney] . . . and such testimony would add nothing to the state's case. The trial judge erred in admitting [the former attorney's] testimony. By the offer and admission of this cumulative and questionable testimony, the state nearly succeeded in turning a simple, clean conviction into a reversal and retrial. Gilding can never improve the lily.
Flowers, 601 So.2d at 832-33.
¶ 71. This Court went further in Turner v. State, 721 So. 2d 642 (Miss.1998). Turner was indicted for automobile burglary. Tammy Porter testified on behalf of Turner and offered favorable testimony in Turner's defense. In the State's rebuttal, the prosecution, obviously in an effort to discredit Porter's testimony, called Turner's former attorney to testify before the jury that Porter was related to Turner's mother. On appeal, Turner submitted four issues for this Court's consideration, one of which was an assertion that the trial court committed reversible error in allowing Turner's former lawyer to testify for the State at trial; however, we found this issue to be procedurally barred since Turner failed to cite any authority to support this argument. Id. at 649 (citing McClain v. State, 625 So. 2d 774, 781 (Miss.1993)). Procedural bar notwithstanding, we discussed the merits of Turner's assignment of error. Id. Even though Turner's former attorney was never identified as such, *545 Turner's trial attorney attempted to cross-examine the former attorney about the fact that he had represented Turner at his preliminary hearing; however, the State's objections were sustained by the trial court. Inasmuch as the only efforts to elicit evidence concerning the fact that the lawyer/witness was Turner's former attorney in the same criminal action were made by Turner's trial attorney, this Court found no reversible error and in the end, affirmed Turner's conviction. However, concerning the practice of the prosecution calling a defendant's former attorney to testify for the State, this Court had a stern admonition for the trial bench and bar:
Nevertheless, we find [the former attorney's] testimony appears unseemly in this case. Prosecutors should refrain from using a prior attorney for a defendant as a witness against the defendant, regardless of the circumstances, so as to avoid any possible appearance or claim of impropriety. The prosecutor [not] using a prior attorney of the defendant as a witness against the defendant also helps to curtail any possible public criticism, distrust of the judicial system, and particularly helps to avoid any subsequent criticism or bar complaints against the attorney. This type of procedure is fraught with danger especially for the attorney so testifying and should always be avoided.
As a result, although we condemn the procedure, we hold that this assignment of error is both procedurally barred and alternatively under the facts here, without merit.
. . . .
[T]his procedure is condemned and is to be avoided. Prosecutor's should refrain from using a defendant's prior attorney as a witness in proceedings against the defendant because it appears unseemly, unnecessarily invites problems, causes possible distrust of the judicial system, and creates a possible appearance of impropriety.
Id. at 649-50 (emphasis added). See also Gullett v. State, 523 So. 2d 296, 300-01 (Miss.1988) ("trial judge in a perjury trial should be sensitive to the possibilities that presence of and identification of another judge and the district attorney [testifying] on the side of the prosecution may substantially prejudice the defendant in the eyes of the jury.")
¶ 72. Returning to the facts of today's case, contrary to the situation in Turner, Goodwin, Hayden's former attorney, was clearly identified before the jury as Hayden's former attorney on the very charges for which Hayden was then on trial. Goodwin testified before the jury that he had represented Goodwin for "[a]bout a year and a half . . . concerning these charges." Regarding how he came into possession of the disputed bill of sale and certificate of title on the morning of trial, Goodwin testified:
My recollection is that at some point either he (Hayden) handhe gave those to me when we were in the witness room preparing for trial, and I'm talking about like five minutes before the trial began. I may have put them in the file. I come out here, we started the voir dire with Judge Kitchens, and at some point during the break in the voir dire, either before or after the voir dire was finished, when I could actually get up and move across the room, I brought you (prosecutor) those documents and showed them to you and advised you that they were discovery, that I might or might not utilize them if there was a case in chief put on by us, and that I would make you copies during the break.
Through Goodwin's testimony, the documents which Hayden had presented to *546 Goodwin on the day of the first trial, namely the purported certificate of title and bill of sale to the white 2003 GMC Denali, were received into evidence as exhibits 5 and 7, respectively.
¶ 73. By the time Goodwin testified, deputy tax collector Pamela Lang already had testified. During Lang's testimony the certificate of title was marked as exhibit 5 for identification purposes only, and the prosecutor examined Lang as to the validity of this document. Lang unequivocally testified that this purported certificate of title was false (which no doubt it was). Lang testified that some of the indicators of this being a fraudulent title were that the document had the VIN placed in the top right-hand corner instead of the top left-hand corner, and that the title number was placed in the top left-hand corner instead of the top right-hand corner. Also the purported owner of the 2003 Denali was listed first namelast name, whereas the owner on a valid title will be listed with the last name appearing first and the first name appearing last.
¶ 74. In his opening statements to the jury, the prosecutor laid out a road map of some of the evidence which he expected to be presented:
Now, and to top that off, Mr. Hayden had this tag in Lowndes County issued to a guy by the name of Marvin Harris. He had it titled in his name. And the officer will tell you, he's hunted, can't find any Marvin Harris. All right?
Now, that's where it stands until August of 2005. And in August of 2005, this case was set for trial. And as usual, we start the voir dire process. During the jury voir dire process, Mr. Hayden hands to his attorneythis is going to be Augustlet me just go over here August of '05, he hands to his attorney, which is going to be Gary Goodwin at that timewho had been his attorney for a whilehe hands to him now, that morning, during voir dire, a bill of sale and a certificate of title.
The bill of sale, you're going to find there are things wrong with it, but it supposedly denotes that Mr. Curtis Powell sold Mr. Hayden the vehicle.
All right? And the certificate of title, which you know you get after you put your application in, which he put the application in, and you get a certificate of title later on? Shows Julylet's see, what dateI've forgotten the date. Anyway, it would have been not long after this application was made on this tag, where you would get a certificate of title mailed to you out of Jackson.
He gave him a certificate of title showing the tag, the vehicle, is now in Marvin Harris's name, which is what the application he asked Ms. Pam to do, was to title it in Marvin Harris's name. And now we've got a certificate of title.
But Ms. Lang will tell you, that certificate of title didn't come out of Jackson, that it's also bogus.
So not only did he have the application from Herrin-Gear that's wrong, get a bill of sale and certificate of title the morning of his first trial, which caused things to stop to have to be looked into to see if they were legitimate, and what we found is those were bogus.
During his closing arguments, the prosecutor reminded the jury of these "bogus" documents which Hayden had presented to Goodwin at the beginning of the first trial:
Now, by the way, he finally said that's not all he had. That was all he had to start with, but if you remember his testimony, he finally said, well, yeah, I did have the certificate, and yeah, I did have the bill of sale all at the same time. He finally said that, right?
*547 When y'all pick up that bill of sale and look at it, look at the date on the bill of sale. It's June the 4th.
Mr. Miller said he saw him, what, the first of June. Is he telling you the truth? No, he's not.
And the bill of sale has the true VIN number on it, when you look at it. And he's buying it from Curtis Powell to actually him.
Okay? Do you think he knew when he went to get the tag on July the 7th, over a month later, that I can't use this bill of sale and the certificate, which has the false, he's got to use what? It's not coming from am individual anymore, like this was, he uses this.
Because guess what? The certificate of title is in Morris HarrisMarvin Harris's name. That's not who he bought it from. Should he have known it was stolen?
¶ 75. Thus, contrary to the situations with which this Court was confronted in Flowers and Turner, I cannot find harmless error in today's case. This situation easily could have been avoided if the State had simply proceeded to trial in August 2005, without documents which were produced by Hayden to Goodwin on the day of trial; because the prosecution obviously was prepared to go to trial prior to learning of the existence of the bill of sale and certificate of title which Hayden had in his possession and tendered to his then-attorney.[16] The prosecution in Flowers and Turner narrowly escaped a reversal of the defendant's conviction. In fact, in Turner, this Court found the issue "under the facts here" to be without merit.[17]Turner, 721 So.2d at 650. However, with this Court having "fired a shot across the bow" in Turner, based on the record before us in today's case, I do not believe the State should be as fortunate as it was in Flowers and Turner. In Tanner v. State, 764 So. 2d 385, 399-400 (Miss.2000), this Court discussed the basic test for harmless error:
[T]he inquiry is not whether the jury considered the improper evidence or law at all, but rather, whether the error was unimportant in relation to everything else the jury considered on the issue in question.
Id. at 399-400 (quoting from Thomas v. State, 711 So. 2d 867, 872 (Miss.1998)). While, absent Goodwin's testimony, substantial evidence was before the jury concerning Hayden's guilt, on the other hand, when I remember this Court's words from Flowers as I look at the record in today's case, I am not prepared to say Goodwin's improper testimony was so unimportant, when compared with all the evidence, that it had no effect on the eventual outcome of the trial. Kolberg v. State, 829 So. 2d 29, 67 (Miss.2002). Likewise, I recall the statement of the learned trial judge in today's case when he declared a mistrial in this case that "[p]rior to those documents [Hayden's production of the bill of sale and certificate of title], it may have very well been in Mr. Hayden's best interest not to take the stand." In the second trial, Hayden took the stand and testified.
*548 ¶ 76. Another problem inherent with the procedure utilized by the trial judge in today's case is that if this procedure continues to be permitted, as evidently espoused by the majority, defense attorneys in criminal cases routinely may find themselves being subpoenaed by the State as witnesses only because the defense attorneys dutifully have complied with the reciprocal discovery provisions of URCCC 9.04. Likewise, as I have discussed, the potential is great for unfair prejudicial effect on the jury when a lawyer testifies for the prosecution and against a former client who is on trial for the very same charges on which the lawyer had represented the defendant.
¶ 77. Therefore, it is my fervent opinion that Goodwin should not have been permitted to testify. However, even though I have not focused on the attorney-client privilege, I mention here, in fairness to Goodwin, that the record in today's case reveals that on several occasions, Goodwin, while on the witness stand, successfully invoked the attorney-client privilege on behalf of Hayden.
¶ 78. In sum, I find that the trial judge abused his discretion in sua sponte removing Hayden's retained counsel, Gary Goodwin, and then later permitting Goodwin to testify for the State at Hayden's subsequent trial relating to the same charges. As this Court stated in Turner, "[p]rosecutors should refrain from using a prior attorney for a defendant as a witness against the defendant, regardless of the circumstances." Turner, 721 So.2d at 649. "This type of procedure is fraught with danger especially for the attorney so testifying and should always be avoided." Id. at 650.
¶ 79. I cannot say on the record before us that such error was harmless; therefore, I find this issue to have merit to the extent discussed. One caveat is that my concerns expressed here today relate only to criminal trials. I am in no way attempting to address this issue in the context of the civil setting.
¶ 80. For the reasons stated, I would reverse the trial court's judgment of conviction and sentence and remand this case to the Circuit Court of Lowndes County for a new trial, absent Gary Goodwin's testimony. Because the majority affirms the conviction and sentence, I respectfully dissent.
WALLER AND DIAZ, P.JJ., JOIN THIS OPINION. GRAVES, J., JOINS THIS OPINION IN PART.
GRAVES, Justice, Dissenting.
¶ 81. While I join Justice Carlson's dissent in part, I write separately to address the application of (1) the attorney-client privilege, (2) the Sixth and Fourteenth Amendments to the United States Constitution, and (3) Article 3 of the Mississippi Constitution. All are relevant to the instant case because of the trial judge's decision to disqualify Hayden's lawyer and compel him to testify during the State's case.
¶ 82. The attorney-client relationship is governed by Mississippi Rule of Evidence 502, which states: "A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself . . . and his lawyer." M.R.E. 502(b). A communication that is "not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication" is considered "confidential." M.R.E. 502(a). The purpose of the privilege "`is to encourage full and frank *549 communication between attorneys and their clients and thereby to promote broader public interests in the observance of law and administration of justice. That purpose, of course, requires that clients be free to make full disclosure to their attorneys.'" Williamson v. Edmonds, 880 So. 2d 310, 318 (Miss.2004) (citations omitted). The scope of the attorney-client privilege has been interpreted broadly by this State. This Court in Williamson stated, "the privilege relates to and covers all information regarding the client received by the attorney in his professional capacity and in the course of his representation of the client. . . ." Williamson, 880 So.2d at 319. Moreover, information is privileged if it "would facilitate the rendition of legal services or advice," and is not required to be "purely legal analysis or advice." Id.
¶ 83. While it is true that disclosure of documents to third parties may lead to waiver of the attorney-client privilege, a disclosure "made in furtherance of the rendition of professional legal service to the client" does not violate the confidential nature of the communication and therefore it does not waive the privilege. M.R.E. 502(a)(5); United Investors Life Ins. Co. v. Nationwide Life Ins. Co., 233 F.R.D. 483, 487 (N.D.Miss.2006). To hold otherwise would be contrary to public policy because it would discourage open and honest communication between attorneys and their clients, which is encouraged to promote fair administration of justice, as embodied in Mississippi Code Annotated Section 73-3-37 (Supp.2005), Mississippi Rule of Evidence 502, and Mississippi Rule of Professional Conduct 1.6. It is undisputed that Hayden gave the subject documents to his formerly-retained counsel during the course of the attorney's representation of Hayden. The documents pertained to the crime charged, and were surrendered to the prosecution as part of reciprocal discovery.
¶ 84. While Justice Carlson's dissent does not address the issue of whether the source of evidence obtained by an attorney from his client should fall within the attorney-client privilege, I will address it here. It is clear where information regarding the source of documents is "received by the attorney in his professional capacity" through communication with his client and where, in fact, that source is the client, that information is protected under Mississippi Rule of Evidence 502. While this Court has never addressed this specific issue, at least three other state supreme courts have been faced with it and have held the information to be privileged. See Dyas v. State, 260 Ark. 303, 539 S.W.2d 251, 256 (1976); People v. Meredith, 29 Cal. 3d 682, 691-93, 175 Cal. Rptr. 612, 631 P.2d 46 (Cal.1981); State v. Olwell, 64 Wash.2d 828, 394 P.2d 681, 685 (1964).
¶ 85. The Supreme Court of Washington recognized the attorney-client privilege should be preserved even where the attorney turns over evidence in his possession. State v. Olwell, 64 Wash.2d 828, 394 P.2d 681, 685 (1964). By allowing the prosecutor access to such information, the public's interest is served, and by protecting disclosure of the source of the information by the attorney-client privilege, the client's interest is preserved, thereby striking an important balance between these conflicting interests. The attorney-client privilege protects knowledge obtained during representation, including that the client was the source of the documents produced by the defense. Therefore, even when the physical evidence itself is not privileged, the prosecution should be precluded from disclosing that the defendant's attorney was the source of the evidence. Norman Lefstein, Incriminating Physical Evidence, The Defense Attorney's Dilemma, and the Need for Rules, 64 N.C.L.Rev. 897, 922 (1986).
*550 ¶ 86. Hence, in the instant case, the production of the documents did not waive the attorney-client privilege as to the substance of any communications between Hayden and his attorney surrounding those documents or the transfer of them. In order for the prosecution to offer the documents turned over to them in reciprocal discovery, the State would have needed to present the information in a manner which avoided revealing the original source of the information. Thus, the trial judge erred in forcing Hayden's former counsel to testify as to the source of the documents.
¶ 87. Finally, I will address the Sixth Amendment of the United States Constitution and Article 3 of the Mississippi Constitution, both of which are implicated by the facts of this case. One of the primary purposes of defense counsel is to assist and guide the defendant through the criminal justice system. The Sixth Amendment to the United States Constitution and Article 3 of the State Constitution provide that every criminal defendant has the right "to Counsel." U.S. Const. amend. VI, XIV; Miss. Const. art. 3, § 26. With limited exceptions, an element of this right is the right of a citizen, who does not require appointed counsel, to choose who will represent him throughout the legal process. United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S. Ct. 2557, 2561, 165 L. Ed. 2d 409 (2006). See also Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988). "[A] defendant should be afforded a fair opportunity to secure counsel of his own choice." Powell v. Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 77 L. Ed. 158 (1932). The United States Supreme Court has stated that the Sixth Amendment "commands . . . a particular guarantee of fairness." Gonzalez-Lopez, 126 S.Ct. at 2562. While trial courts are given broad discretion in balancing the needs of fairness and the right of defendants to have counsel of their choice, trial courts are charged with an "independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them." Gonzalez-Lopez, 126 S.Ct. at 2566 (quoting Wheat, 486 U.S. at 160, 108 S. Ct. 1692).
¶ 88. The trial court failed to make any attempt at balancing the foregoing interests, asking only how counsel intended to introduce the subject documents, and allowing the State to serve Hayden's former counsel with a subpoena to be a witness in the case. In removing Hayden's retained counsel, the trial court denied Hayden his fundamental right to counsel of choice, guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article 3, Section 26 of the Mississippi Constitution. The trial court further exacerbated the unjust denial of Hayden's constitutional rights when it allowed the State to use Hayden's former attorney as a witness to introduce otherwise inadmissible evidence.
¶ 89. For the foregoing reasons, I respectfully dissent.
DIAZ P.J., JOINS THIS OPINION. WALLER, P.J., AND CARLSON, J., JOIN THIS OPINION IN PART.
NOTES
[1] At the time of the crime, the white Yukon was assigned to Royal's employee, Yvette Worthington, as a demonstrator.
[2] Herrin-Gear employee Vincent Hughes would later testify at Hayden's trial that "we don't sell GMC Denalis."
[3] Harris's address was listed on the title application as 186 Lehmberg Rd., Apt. 1A, Columbus, MS 39702. Mississippi Highway Patrol Investigator Randy Ginn would later testify at Hayden's trial that he diligently searched for Harris, but to no avail.
[4] Lang testified the reason she remembered Hayden and this particular transaction was because "anytime somebody buys a 40, $50,000 vehicle with no lienholder, I mean, you just you're just suspicious, I guess," especially when the person is young.
[5] The owner on the certificate of title was listed as Robert Watson, and the signature on the back of the certificate of title indicated that the seller was Robert Watson.
[6] Trooper Ginn later attempted to locate Watson, to no avail.
[7] Yvette Worthington, the Royal employee who was driving this vehicle as a demonstrator at the time it was stolen, would later testify at Hayden's trial that the original VIN for this vehicle was 1GKEK63U73J140390.
[8] The trial court found the stricken language to be surplusage, and not an element of the offense which the State was required to prove pursuant to the statute.
[9] Although Mr. Goodwin was one of several public defenders for Lowndes County, he was retained as counsel in this case by Hayden.
[10] After the appeal was perfected, Justice Randolph entered a single-justice order on behalf of the Court, granting Hayden's motion for appointment of special counsel. This order provided, inter alia, that Dennie B. Mayhone and Kara Lynn Lincoln, law students at the University of Mississippi School of Law participating in the Criminal Appeals Clinic, were specially appointed as counsel; and, that Phillip W. Broadhead, Clinical Professor and Director of the Criminal Appeals Clinic was appointed as an attorney of record. Hayden's trial counsel, Michael R. Farrow, is also an attorney of record for Hayden in this appeal.
[11] For example, a client who tells her lawyer that she is sick and cannot be in court, certainly has no claim that the communication is privileged.
[12] The pertinent sections of Mississippi Code Annotated Section 97-9-125 state: "(1) A person commits the crime of tampering with physical evidence if, believing that an official proceeding is pending or may be instituted, and acting without legal right or authority, he: . . . (b) Knowingly makes, presents or offers any false physical evidence with intent that it be introduced in the pending or prospective official proceeding. . . . (2) Tampering with physical evidence is a Class 2 felony."
[13] "The fact that in exceptional situations the lawyer under the Rules has a limited discretion to disclose a client confidence does not vitiate the proposition that, as a general matter, the client has a reasonable expectation that information relating to the client will not be voluntarily disclosed and that disclosure of such information may be judicially compelled only in accordance with recognized exceptions to the attorney-client and work product privileges." M.R.P.C. Preamble.
[14] From the record, it is obvious that this is the first time that Goodwin realized that the VINs on the bill of sale and certificate of title which Hayden had given him that day did not match up. Stated differently, the totality of the record reveals that at the time Goodwin presented these documents to the prosecutor in an effort to comply with the discovery rules, Goodwin did not realize that there was a discrepancy in the VINs on these two documents.
[15] As it turned out, in the second trial, Hayden did take the stand and testify, although the trial judge opined at the time of the mistrial in the first trial that before these two disputed documents were presented, "it may have very well have been in Mr. Hayden's best interest not to take the stand."
[16] The record reveals that on August 9, 2005, eight days prior to this case being called up for trial, the District Attorney was successful in securing an order from the trial judge approving payment of $831.79 to cover the expenses of an out-of-state witness traveling to Mississippi to testify at Hayden's trial. I am confident the District Attorney would not have incurred this expense on behalf of the State if he were not otherwise fully prepared to go to trial and confident of securing a conviction.
[17] Again, for the sake of emphasis, the issue in Turner was procedurally barred, but this Court alternatively addressed the issue on its merits. Turner, 721 So.2d at 649-50. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590971/ | State of Wisconsin, Plaintiff-Respondent,
v.
Laverne R. Burchard, Defendant-Appellant.
No. 03-2336-CR.
Court of Appeals of Wisconsin.
Opinion Filed: July 1, 2004.
Before Deininger, P.J., Dykman and Higginbotham, JJ.
¶ 1. PER CURIAM.
Laverne Burchard appeals from a judgment convicting him of three counts of repeated sexual assault of the same child, in violation of Wis. Stat. § 948.025(1) (2001-02).[1] He raises two issues: (1) Whether the trial court correctly denied a motion to suppress his confession; and (2) Whether the trial court properly exercised its discretion by denying his motion to withdraw his no contest plea. We conclude that the confession was properly admitted because it was voluntary. We also conclude that the trial court did not erroneously exercise its discretion by denying Burchard's postconviction motion because the record supports the denial. We affirm.
¶ 2. Burchard contends the trial court erred by allowing his in-custody confession to be used as evidence. He argues the confession was not voluntary because the investigating police officers coerced him into confessing. "Voluntariness is a question of constitutional fact because the determination requires the application of a constitutional standard to uncontroverted facts." State v. Hajicek, 2001 WI 3, ¶14, 240 Wis. 2d 349, 620 N.W.2d 781. "A question of constitutional fact presents a mixed question of fact and law reviewed with a two-step process." Id., ¶15. First, we review the trial court's findings of historical fact under the clearly erroneous standard. Id.; Wis. Stat. § 805.17(2). Then we review the trial court's determination of constitutional fact de novo. Hajicek, 240 Wis. 2d 349, ¶15.
¶ 3. Burchard specifically challenges psychological tactics the police used during the interrogation. He argues that the police used "extensive tactics to exert psychological pressure on Burchard." The officers told Burchard that his youngest victim's life would be ruined unless Burchard confessed because the police would have to accuse the boy of lying. The trial court determined that these tactics were proper, though the police may have, at times, gone "somewhat beyond the scope of what normally occurs."
¶ 4. Police may use some psychological tactics when seeking a statement from a suspect. They are "allowed to play on a suspect's ignorance, his anxieties, his fears, and his uncertainties." United States v. Rutledge, 900 F.2d 1127, 1130 (7th Cir. 1990). Investigators, however, may not "magnify those fears, uncertainties, and so forth to the point where rational decision becomes impossible." Id. Here, the investigating officers did not cross the bounds of propriety. They explained that the youngest victim's life would be ruined because he would not get the psychiatric help he needed if Burchard denied ever harming him. Burchard agreed with the officers.
¶ 5. Burchard argues that the interviewing officers promised him leniency in return for his confession. He contends that the investigators suggested he would receive psychological help if he admitted the charges were true. Burchard also argues that the two-and-a-half-hour interrogation was inappropriately long and that it resembled "an effective high pressure sale."
¶ 6. Voluntariness of a confession is based upon the totality of the circumstances. State v. Jarrell C.J., 2004 WI App 9, ¶13, 269 Wis. 2d 442, 674 N.W.2d 607. This involves balancing the personal characteristics of the defendant against the pressures imposed upon the suspect by investigators. Id. Promises or threats are factors to be considered in the voluntariness inquiry. State v. Knapp, 2003 WI 121, ¶98, 265 Wis. 2d 278, 666 N.W.2d 881. Other factors to be considered under the totality of the circumstances inquiry include:
[T]he individual's age, maturity, intelligence, education, experience, ability to understand, and presence of ... counsel as well as the defendant's physical and emotional condition ....
[T]he length of the questioning, any delay in arraignment, the general conditions under which the statements took place, any excessive physical or psychological pressure brought to bear on the defendant, any inducements, threats, methods or strategies used by the police to compel a response, and whether the defendant was informed of the right to counsel and right against self-incrimination.
Jarrell C.J., 269 Wis. 2d 442, ¶13 (quoting State v. Hoppe, 2003 WI 43, ¶39, 261 Wis. 2d 294, 661 N.W.2d 407).
¶ 7. The trial court concluded the interrogation techniques were appropriate and not unreasonable for a man of Burchard's age, maturity, intelligence, education, and experience with law enforcement. Based on the totality of the circumstances, the trial court determined that the confession was voluntary and admissible. We agree. The interview was relatively long but was punctuated by several breaks. It took place in a typical interrogation room of adequate size. The police informed Burchard of his rights. Burchard did not request counsel or ask to stop the interrogation. The officers were sensitive to Burchard's emotions and gave him tissues when he became emotional, though he did not appear overly emotional or nervous. The officers were in plain clothes and did not carry weapons, and they did not restrain Burchard in any way. The police did not make physical threats or make explicit promises to Burchard. The trial court correctly denied Burchard's motion to suppress.
¶ 8. The second issue Burchard raises pertains to the denial of a post-conviction motion to withdraw his no contest pleas. Burchard argues the trial court erred by not informing him that a no contest plea admits all the facts in the criminal complaint. He contends the trial court's statement, "You're not necessarily saying that you're guilty, but you're not asserting you're innocent or not guilty on these charges," misled Burchard to believe that his plea was "consistent with a continued denial of guilt."
¶ 9. A defendant who moves to withdraw a plea after sentencing must establish by clear and convincing evidence that letting the plea stand would result in a manifest injustice. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 635-36, 579 N.W.2d 698 (1998). The defendant must show a "serious flaw in the fundamental integrity of the plea" to demonstrate that a manifest injustice would result. State v. Nawrocke, 193 Wis. 2d 373, 379, 534 N.W.2d 624 (Ct. App. 1995).
¶ 10. The trial court determined Burchard did not prove a manifest injustice. A court's decision to permit a defendant to withdraw a plea is a matter of discretion, subject to the erroneous exercise of discretion standard of review. State ex rel. Warren, 219 Wis. 2d at 635. We will find an erroneous exercise of discretion if the trial court failed to exercise its discretion, if the facts fail to support the trial court's decision, or if the trial court applied the wrong legal standard. State v. Black, 2001 WI 31, ¶9, 242 Wis. 2d 126, 624 N.W.2d 363.
¶ 11. Wisconsin Stat. § 971.08(1)(a) provides a trial court must "address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted." The trial court questioned Burchard in detail to ensure that he was aware of the nature of the charges against him and of his potential punishment. Burchard said he understood that his plea would result in convictions for each count. He read and discussed the plea questionnaire/waiver with his attorney.
¶ 12. We conclude the facts found by the trial court support the denial of Burchard's motion to withdraw his plea. The trial court explained to Burchard that the plea questionnaire/waiver Burchard signed is designed to ensure that defendants understand their pleas. Burchard said he understood the waiver and had discussed it with his attorney. Burchard's responses to the trial court's questions indicated that he fully understood the nature of the charges against him and his potential punishment. The preferable practice is for a trial court to explain to a defendant that a no contest plea is the equivalent of a plea of guilty in criminal proceedings, but the trial court's phrasing, "You're not necessarily saying that you're guilty, but you're not asserting you're innocent or not guilty on these charges." was not incorrect or inadequate. See, e.g., State v. Trochinski, 2002 WI 56, ¶11, n.6, 253 Wis. 2d 38, 644 N.W.2d 891 (court's statements that if defendant pled no contest, it would find him guilty of the charge, and if defendant did not dispute the claim, then it would "take the claim as so" were adequate). The trial court did not erroneously exercise its discretion by denying Burchard's motion.
By the Court. Judgment affirmed.
NOTES
[1] All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590986/ | 972 So. 2d 444 (2007)
Toby P. ARMENTOR
v.
SAFEWAY INSURANCE COMPANY, et al.
No. 2007-805.
Court of Appeal of Louisiana, Third Circuit.
December 19, 2007.
*445 Barton W. Bernard, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant, Toby P. Armentor.
Keith M. Borne, Borne, Wilkes & Brady, Lafayette, LA, for Defendants/Appellees, Safeway Insurance Company, Leroy D. Batiste.
Court composed of MICHAEL G. SULLIVAN, GLENN B. GREMILLION, and BILLY HOWARD EZELL, Judges.
SULLIVAN, Judge.
Plaintiff, Toby Armentor, appeals a judgment rendered in his favor following a bench trial. Defendants, Safeway Insurance Company and Leroy Batiste, answer the appeal. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
This lawsuit arises out of a rear-end collision that occurred at 1:20 p.m. on November 24, 2004, on Pinhook Road near its intersection with Bonin Road in Lafayette Parish. Armentor was seatbelted in his pickup truck and stopped at a red light when he was struck from behind by a pickup truck driven by Batiste. The force of the collision pushed Armentor's vehicle forward eight to ten feet and into the rear of another vehicle.
Armentor filed suit against Batiste and his automobile liability insurer, Safeway, for the injuries that he sustained as a result of the accident. A bench trial was held on November 13, 2006. Although liability was not stipulated, Batiste admitted at trial that the collision occurred because he was inattentive and distracted and that Armentor had done nothing to cause or contribute to the accident. Other than Batiste and Armentor, the only other witness to testify live at trial was Father Louis Richard, a Catholic priest who was Armentor's workout partner both before and after the subject accident. Certified copies of Armentor's medical records and bills were submitted as exhibits, along with the depositions of his three treating physicians. Defendants submitted a copy of Batiste's Safeway policy as an exhibit. At the close of testimony, the matter was taken under advisement.
The trial court rendered written Reasons for Judgment on December 11, 2006, awarding Armentor general damages in the amount of $30,000.00, past medical expenses in the amount of $13,093.50, and future medical expenses in the amount of $5,000.00. Judgment was signed on February 1, 2007, in accordance with the previously rendered reasons, in favor of Armentor and against Safeway and Batiste, in solido, in the amount of $10,000.00,[1] and in favor of Armentor and against Batiste, individually, in the amount of $38,093.50.
Armentor devolutively appealed from the judgment, assigning the following as error:
*446 1. The trial court erred, as a matter of law, by imposing an illegal burden of proof upon Plaintiff, i.e., that he prove his case as "definite" as opposed to "more probable than not."
2. The trial court erred in its award of future medical expenses to Plaintiff, as the award was based on an illegal burden of proof and was abusively low and contrary to the law and the evidence.
3. The trial court erred in its award of general damages to Plaintiff, as the award was based on an illegal burden of proof and was abusively low and contrary to the law and the evidence.
Safeway and Batiste answered Armentor's appeal, alleging that the trial court abused its discretion in the amounts awarded to Armentor for general damages and future medical expenses in that the evidence supports much lower awards, if any.
STANDARD OF REVIEW
This court recently recited the standard of review to be applied when an appellant alleges that the trial court committed legal error by holding them to an improper burden of proof. In Lanningham v. Walton, 06-1103, pp. 2-3 (La.App. 3 Cir. 2/7/07), 950 So. 2d 922, 924, we stated:
A trial court's findings of fact will not be disturbed unless they are manifestly erroneous or clearly wrong. Fuselier v. State, through Dep't of Transp. & Dev., 05-681 (La.App. 3 Cir. 1/11/06), 919 So. 2d 867, writ denied, 06-334 (La.4/28/06), 927 So. 2d 289. "This standard, however, is not applicable when one or more legal errors by the trial court interdicts the fact-finding process, and, when permitted by the record, the appellate court should conduct a de novo review to determine the preponderance of the evidence." Trahan v. Deville, 05-1482, p. 2 (La.App. 3 Cir. 5/10/06), 933 So. 2d 187, 190, writ denied, 06-2103 (La.11/17/06), 942 So. 2d 534 (citation omitted). "Legal errors occur when trial courts prejudicially apply incorrect principles of law." Id. "These errors are prejudicial when they materially affect the outcome of the matter." Id. "In these cases, appellate courts are bound, if possible, to apply the correct principles of law, determine material facts, and render judgment on the record." Id.
DISCUSSION
Burden of Proof
Armentor asserts that the trial court imposed an illegal burden of proof, requiring him to prove his case with "definite" evidence, instead of the less strict "more probably than not" standard that the law actually imposes on a plaintiff in a personal injury case. Accordingly, Armentor requests that this court review this matter de novo, applying the correct burden of proof.
Armentor's argument is based upon the following excerpt from the trial court's Reasons for Judgment:
Neither Dr. Montgomery nor Dr. Kasarla stated that the Plaintiff was definitely a surgical candidate. Both stated that it would depend on whether the injections continued to improve the Plaintiff's condition. Dr. Kasarla speculated that the Plaintiff may need injections for six months or maybe forever. The doctors simply cannot make a definitive determination at this point as to Plaintiff's prognosis and it is not this Court's job to speculate as to what the future may bring.
(Emphasis added).
Defendants vehemently disagree that the above-quoted language supports Armentor's *447 premise that the trial court applied an incorrect burden of proof. They characterize Armentor's argument as disingenuous and claim that it ignores the context within which the two statements were made. They contend that the statements were simply findings of fact made by the trial court, which in no way indicate that the trial court applied an incorrect burden of proof. Accordingly, Defendants submit that this court should apply the manifest error standard of review.
The Louisiana Supreme Court discussed the plaintiff's burden of proof regarding causation in the context of a personal injury lawsuit in Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615, p. 3 (La.2/20/95), 650 So. 2d 757, 759 (citations omitted):
In a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. Plaintiff must prove causation by a preponderance of the evidence. The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident.
As the trial court stated in its Reasons for Judgment, "[l]iability on the part of Mr. Batiste is not at issue, as he testified at trial that he was solely at fault in causing the accident. The only issue before the Court is the nature and extent of the damages sustained by Mr. Armentor." We are convinced that the trial court applied the correct burden of proof in deciding whether Armentor's injuries were caused by the subject accident, especially in light of the fact that liability was not contested. Moreover, the language complained of is found in the section of the Reasons for Judgment discussing future medicals.[2] Armentor's first assignment of error lacks merit.
Future Medicals
Armentor submits that the trial court required him to prove his need for future medicals with "definite" evidence, rather than with the "more probably than not" standard that the law actually imposes. Pointing to the opinion of Dr. Amarendar. Kasarla, Armentor's pain management doctor, that he will definitely need more injections in the future and that if the injections quit easing his pain, he may end up requiring surgery, Armentor argues that the trial court's award of only $5,000.00 in future medicals is reversible error. He suggests that an award of at least $175,000.00 is warranted under the circumstances.
Defendants counter that the trial court applied the correct burden of proof and that it was correct in limiting its award of future medicals to $5,000.00. Defendants stress that Armentor's orthopedist, Dr. Thomas Montgomery, the only physician qualified to opine whether Armentor will need surgery in the future, testified that Armentor was not a surgical candidate when he last saw him in February of 2005. Dr. Montgomery further testified that he could not render an opinion as to whether Armentor was a surgical candidate at the time of trial because he had not evaluated him in over a year and a half.
With regard to Armentor's need for future injections, Defendants point out that Dr. Kasarla could not opine as to how far into the future Armentor would need injections *448 from a more probable than not standpoint. Rather, Dr. Kasarla stated that "he's gonna need . . . injections and it depends, it may be six months to a year or it may be forever; infinitely. But most likely he's going to need injections in the near future." Defendants additionally submit that Dr. Kasarla did not testify that Armentor would probably need surgery in the future, nor did he testify as to the cost of any future surgery.
In their answer to appeal, Defendants ask this court to reverse the trial court's award of future medical expenses on the basis that Dr. Kasarla's testimony was too speculative to support any such award.
This court discussed the burden of proof on a plaintiff seeking an award for future medical expenses in Veazey v. State Farm Mutual Auto Insurance, 587 So. 2d 5, 8 (La.App. 3 Cir.1991):
Future medical expenses, like any other damages, must be established with some degree of certainty. The plaintiff must show that, more probably than not, these expenses will be incurred. Awards will not be made in the absence of medical testimony that they are indicated and setting out their probable cost.
An appellate court reviews an award for future medical expenses, which are items of special damages, pursuant to the manifest error standard of review. Cormier v. Colston, 05-507 (La.App. 3 Cir. 12/30/05), 918 So. 2d 541.
The "definite" language that Armentor suggests indicates that the trial court applied an incorrect burden of proof is found in the section of the Reasons for Judgment where the trial court was discussing Armentor's need for future medical expenses. This court has used similar language in reviewing a trial court's award of future medicals to automobile accident victims. In Simmons v. Custom-Bilt Cabinet & Supply Co., 509 So. 2d 663 (La.App. 3 Cir. 1987), two elderly plaintiffs were injured when their vehicle was rear-ended. Following a bench trial, Mr. and Mrs. Simmons were awarded general damages of $30,000.00 and $8,000.00, respectively, along with their documented past medical expenses. In addition, Mr. Simmons was awarded $5,000.00 for future medical expenses, and Mrs. Simmons was awarded $1,000.00 for future medical expenses. In reversing the awards for future medicals, we found that although the evidence showed that the plaintiffs would likely continue to experience pain as a result of the effects of the accident, "[t]here is no definite evidence as to how much medication would be required in the future, or how much it might cost." Id. at 665 (emphasis added). Moreover, although a doctor who had examined the plaintiffs made suggestions as to medications and tests, we concluded that those suggestions "remained only possibilities, not definite enough to form the basis of an award for future medical expenses." Id. (emphasis added). In the present case, the trial court stated the following in its Reasons for Judgment:
[I]t is this Court's opinion that Plaintiff has failed to establish that he will need surgery or injections to the extent he has claimed in the future. While the need for extended injections has not been satisfactorily proven to this Court, the need for some limited future medicals could be possible and the Court would assess $5,000.00 for future medicals.
Our reading of the above-quoted language convinces us that the trial court applied the correct standard when evaluating Armentor's need for future medicals. Thus, the propriety of the award will be examined under the manifest error standard. We have reviewed Armentor's trial testimony, along with his medical records, *449 and the depositions of his treating physicians. Given Dr. Kasarla's opinion that Armentor will need injections in the near future, we cannot say that the trial court committed manifest error in awarding Armentor an amount sufficient to cover a limited amount of future medical expenses. Armentor's second assignment of error lacks merit. For the same reasons, Defendant's argument that the award is too generous is likewise without merit.
General Damages
Armentor next asserts that the trial court erred by basing his general damage award on an illegal burden of proof, resulting in an award that was abusively low given the severity and duration of his injuries.
Armentor submits that the uncontradicted trial evidence showed that he was in good health and pain free before the collision, but immediately afterward he began suffering pain in his neck and back. He contends that the injuries he received resulted in his having to restrict both his hobbies and his daily activities, including the type of job that he is able to perform, and that his pain and restrictions are permanent and are increasing with the passage of time. Armentor argues that the medical evidence established that it was more probable than not that he will need injections in the future and surgery if his pain persists and the injections stop offering him relief.
Defendants again submit that the trial court applied the proper standard of review in assessing the proper amount to award Armentor in general damages. In opposition to Armentor's arguments, they counter that Armentor's documented medical history since the accident belies his assertion that the $30,000.00 in general damages awarded to him was abusively low. Defendants submit that although Armentor was under consistent treatment from his regular doctor for approximately three months following the accident, he then sought no medical treatment for ten months, followed by another period of eleven months without treatment, with his last treatment being rendered within two months of the trial date.
Defendants refer this court to Armentor's testimony on cross-examination wherein he admitted that the primary reason he quit his offshore employment was the stress placed on his family by his having to work twenty-four/seven and his always being on call. Armentor additionally admitted that, starting approximately two months after the accident, he resumed participation in his normal activities, such as bow fishing and bow hunting. Given the minimal effect on his lifestyle and the speculative testimony as to Armentor's need for future treatment, Defendants submit that the trial court's general damage award more than adequately compensated Armentor for his injuries. Moreover, in their answer to Armentor's appeal, Defendants suggest that the evidence shows that Armentor's injuries were minimal and that his general damage award should be reduced.
The appellate court's role in reviewing a trial court's general damages award was discussed in Fontenot v. Laperouse, 00-130, p. 7 (La.App. 3 Cir. 11/2/00), 774 So. 2d 278, 283 (footnotes omitted), writs denied, 00-3268, 00-3286 (La.1/26/01), 782 So. 2d 638, 1027:
It is well settled that the discretion vested in the trier of fact, when awarding general damages, is great and even vast, so that the award should rarely be disturbed on appeal. An appellate court is not to decide what it considers to be an appropriate award but to determine whether the trier of fact has abused the discretion it is afforded when awarding such damages. It is only when the appellate *450 court determines that the trier of fact abused its vast discretion that the court should increase or reduce the award.
We have reviewed the record in its entirety. When Armentor last saw his family physician, Dr. Ben Doga, on December 13, 2004, he was of the opinion that Armentor was suffering from a cervical and lumbar strain, and he referred him to Dr. Montgomery, an orthopedic surgeon, for further evaluation. Dr. Montgomery ordered cervical and lumbar MRI's, the results of which, he opined, showed arthritic and degenerative changes that preexisted, but were rendered symptomatic by, Armentor's motor vehicle accident.[3] When he last saw Armentor in February of 2005, Dr. Montgomery's impression was that Armentor was suffering from cervical and lumbar degenerative disc disease, and he referred him to Dr. Kasarla, a pain management doctor. Significantly, Armentor did not see Dr. Kasarla until eight months after the referral. When this fact was made known to Dr. Montgomery at his deposition, he stated that he would have expected Armentor to see Dr. Kasarla sooner based on his complaints of pain at his last visit. Dr. Kasarla gave Armentor a lumbar steroid injection in November of 2005 and instructed him return in three weeks for a follow-up visit. Armentor chose not to comply with Dr. Kasarla's request, instead returning eleven months later, at which time he was given both lumbar and cervical injections.
The trial court was able to evaluate Armentor's credibility. While it determined that he was injured in the accident in question, it found that Armentor had not met his burden of proving that he was in need of more than limited future medicals. Given his patchy treatment history, most significantly the inconsistency of his actions as compared to his subjective complaints of pain, we cannot say that the trial court erred in making its general damage award based on a two-year cervical and lumbar strain. We are satisfied that the trial court applied the correct burden of proof and that it did not abuse its vast discretion in awarding Armentor $30,000.00 in general damages. Armentor's third assignment is without merit as is Defendant's claim that the general damage award to Armentor should be lowered.
CONCLUSION
For the foregoing reason, the judgment of the trial court is affirmed in its entirety. Costs of this appeal shall be split equally among the parties.
AFFIRMED.
NOTES
[1] The Safeway policy issued to Batiste and in effect on the date of the subject accident had limits of $10,000.00/$20,000.00.
[2] As will be discussed later in this opinion, this court has approved language similar to that complained of herein in the context of a trial court's decision to deny or limit a plaintiff's claim for future medicals.
[3] Dr. Montgomery did admit that the areas of disc protrusion in Armentor's cervical spine could have been caused by the accident. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590966/ | 42 S.W.3d 248 (2001)
In the Interest of A.P. and I.P., Minor Children.
No. 10-00-00105-CV.
Court of Appeals of Texas, Waco.
February 28, 2001.
*252 Robert C. Dunn, Corsicana, for appellant.
Cathren Page Koehlert, Texas Dept. of Protective and Regulatory Services Austin, William L. Smith, Corsicana, for A.P. and I.P., Minor Children.
Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
OPINION
VANCE, Justice.
Daniel Peddicord and Natalie Conner had two children who were removed from their home by workers from the Texas Department of Protective and Regulatory Services-Child Protective Services *253 ("CPS") after Daniel and Natalie were arrested on felonies. Daniel was later imprisoned. CPS workers believed the conditions at home endangered the children. After attempts failed over the next year to remedy these conditions, CPS filed a petition to terminate Daniel's and Natalie's parental rights. Natalie relinquished her rights by affidavit. Daniel proceeded to jury trial, after which his rights were terminated.
Daniel complains on appeal that: (1) there was insufficient evidence to support the jury's answers to the three questions which resulted in the termination of his rights, and (2) testimony of statements made by the children was improperly admitted. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Daniel and Natalie lived in a trailer with their son, I.P., age four, and their daughter, A.P., age five and one-half. Natalie's other daughter, S.C., almost seven, also lived with them. The location of S.C.'s father is unknown.
In February of 1997, CPS was called to the home by the Navarro County Sheriff's Department because Daniel and Natalie were being arrested on stolen-property and drug charges. When the CPS worker arrived, she found the inside of the trailer to be virtually uninhabitable and dangerous, with no working toilet or bathtub, one bed for five people, trash and garbage strewn about, exposed electrical wires, holes in the ceiling and floor, and heat from only a heater connected to a small butane tank. I.P. and A.P. were in the trailer. They had not eaten or bathed for a considerable period of time and had lice. I.P. told the CPS worker he smoked marijuana his daddy gave him.
S.C. was retrieved from school by CPS. Although the oldest child, she appeared to be the youngest, being very small for her age, possibly as a result of Fetal Alcohol Syndrome.
All three children were taken into custody by CPS, and were eventually placed in foster care. On March 3, 1997, CPS filed a petition and obtained an emergency order appointing CPS as temporary managing conservator of the three children. A hearing on temporary orders was held on March 7. At the hearing, it was revealed that CPS had files dating back to 1993 regarding incidents involving medical and physical neglect of all three children, and conditions similar to the ones just discovered. The court appointed CPS the temporary managing conservator of the children, and appointed Natalie and Daniel temporary possessory conservators.
Over the next few months, CPS developed Child's Service Plans and worked with Natalie to make changes necessary for the eventual return of the children. Several review and status hearings were held by the court. However, Natalie refused to comply with the service plans. Daniel, who had been in jail, was eventually convicted on January 22, 1998, of four home burglaries and sentenced to ten years in prison. Meanwhile, the children lingered in foster care. Finally, in January of 1998, the Texas Department of Protective and Regulatory Services filed an amended petition to terminate Daniel's and Natalie's parental rights.
Natalie eventually signed affidavits on April 2, 1999, to relinquish her parental rights to all three children. A Judgment of Termination was signed on July 26. Daniel continued to assert his parental rights to I.P. and A.P., and a jury trial was held January 10-12, 2000. The jury returned its verdict, finding by clear and convincing evidence that: (1) Daniel knowingly placed or allowed the children to *254 remain in conditions or surroundings which endangered their physical or emotional well-being; (2) Daniel engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children; (3) the termination of Daniel's parental rights would be in the best interest of the children.
At the conclusion of trial, Daniel's lawyer approached the bench and the following exchange occurred:
Ms. Glicksman: Your honor, I had requested that I might
The Court: Oh, yeah. Excuse Me.
Court Reporter: Do youall want this on the record?
The Court: No. No, it doesn't have to.
Presumably the lawyer requested to withdraw, because when the Order of Termination was signed on January 24, 2000, Daniel filed a pro-se "Motion to Appeal," requesting an appeal and based on indigency, appointment of a lawyer, which was granted on February 3, ten days after the final order.
ISSUE: SUFFICIENCY OF THE EVIDENCE
Termination of parental rights is governed by Tex. Fam.Code Ann. §§ 161.001-.211 (Vernon Supp.2001). As alleged in this case, Daniel's rights could be terminated if the jury determined by "clear and convincing evidence":
(1) that the parent has:
* * *
(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; [or]
(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;
* * *
and
(2) that termination is in the best interest of the child.
Tex. Fam.Code Ann. § 161.001 (Vernon 1996 and Supp.2001). If a jury found that Daniel violated either "D" or "E," and that termination was in the children's best interest, the court could terminate his rights. The jury's findings must be by clear and convincing evidence. Id., §§ 161.001, 161.206(a). Clear and convincing evidence means "that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Spangler v. Texas Dept. of Regulatory Services, 962 S.W.2d 253, 256 (Tex. App.-Waco 1998, no pet.); Leal v. Dept. of Protective and Regulatory Services, 25 S.W.3d 315, 319 (Tex.App.-Austin 2000, no pet.).
Preservation and Review of the Complaint
At the outset we note that Daniel failed to preserve his sufficiency complaint. Normally, we do not review complaints in civil jury trials unless they have been preserved in the trial court.[1] Tex.R.App. P. 33.1. However, there is precedent for reviewing an unpreserved sufficiency complaint *255 in an involuntary termination case. In Interest of S.R.M., 601 S.W.2d 766, 769-70 (Tex.Civ.App.-Amarillo 1980, no writ) (parental rights were terminated based on trial evidence of grounds not pled, without objection; case reviewed, and reversed, for insufficient evidence in spite of trial by consent, because of the constitutional dimension of termination cases).
We take heed that the "natural right existing between parents and their children is of constitutional dimensions." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (referencing In re G.M., 596 S.W.2d 846, 846 (Tex.1980)). "[F]reedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment." Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599 (1982); Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49 (2000) (grandparent's rights case; "... the interest of parents in the care, custody, and control of their childrenis perhaps the oldest of the fundamental liberty interests recognized by this Court .") (citing Meyer v. Nebraska, 262 U.S. 390, 399, 401, 43 S. Ct. 625, 67 L. Ed. 1042 (1923)). A parent's right to the parent-child relationship is "essential," "a basic civil right of man," and "far more precious than property rights." Holick, 685 S.W.2d at 20, (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551 (1972)).
Because of the right's elevated status, the standard of proof required in a termination proceeding is elevated from "preponderance of the evidence" to "clear and convincing evidence ." Santosky, 455 U.S. at 747, 102 S.Ct. at 1391. "[S]tate intervention to terminate the relationship between [a parent] and [the] child must be accomplished by procedures meeting the requisites of the Due Process Clause." Id., 455 U.S. at 753, 102 S.Ct. at 1394 (quoting Lassiter v. Department of Social Services, 452 U.S. 18, 37, 101 S. Ct. 2153, 2156, 68 L. Ed. 2d 640 (1981) (first dissenting opinion), and at 24-32, 101 S.Ct. at 2158-2162 (opinion of the Court), and at 59-60, 101 S.Ct. at 2176 (STEVENS, J., dissenting)); see also M.L.B. v. S.L.J., 519 U.S. 102, 120, 117 S. Ct. 555, 566, 136 L. Ed. 2d 473 (1996) (state statute denying appeal from a termination proceeding because appellant could not afford the cost of the record violated procedural due process and equal protection). Therefore, "termination proceedings should be strictly scrutinized." Holick, 685 S.W.2d at 20.
We are not persuaded that application of Rule 33.1 in an involuntary-termination-of-parental-rights case to preclude review of the sufficiency of the evidence affords the parent due process. To terminate parental rights when there is insufficient evidence only because the complaint was not preserved in the trial court does not adhere to Fourteenth Amendment procedural due process. See Santosky, 102 S.Ct. at 1394. There is no "strict scrutiny" (quoting Holick) in such an approach.
The standard of proof in a termination case"clear and convincing evidence"is similar to the standard of proof in a criminal case, i.e., "beyond a reasonable doubt," in that a greater degree of evidence is required. Both are distinguished from the standard of proof in civil cases generally, i.e., "preponderance of the evidence." In criminal cases, sufficiency issues need not be preserved to be reviewed on appeal. Clewis v. State, 922 S.W.2d 126, 130-31 (Tex.Crim.App.1996) (Tex. Const. art. V, §§ 5 & 6 empowers the appellate courts to review evidence for sufficiency); Tex.R.App. P. 21.2 (a motion for a new trial is not required to preserve a complaint on appeal except when necessary *256 to adduce facts not in the record); Chesnut v. State, 959 S.W.2d 308, 311 (Tex. App.-El Paso 1997, no pet.) (a claim of factual insufficiency does not need to be preserved); Davila v. State, 930 S.W.2d 641, 649 n. 7 (Tex.App.-El Paso 1996, writ refused) (a claim of legal insufficiency does not need to be preserved). Comporting with that, even without the constitutional imperative of due process, review of the sufficiency of the evidence in termination cases regardless of preservation of the issue is a logical extension of the rule in criminal cases because there is an elevated burden of proof.
We believe the proper approach is to review the merits of the sufficiency complaints even if they have not been preserved procedurally. Our holding is limited to the core issues to be decided by a jury in an involuntary termination case, i.e., the section 161.001(1) violations of a predicate act and whether termination is in the best interest of the child. We hold that when either of these two core issues is challenged on appeal for sufficiency of the evidence, and no motion or objection was made at the trial court which would have preserved the complaint for appellate review under ordinary civil-review standards, we will nevertheless review the complaint.
Was the Evidence Sufficient
To determine whether the evidence is legally sufficient to support a jury finding, we consider only the evidence supporting the verdict "in the light most favorable to the party in whose favor the verdict has been rendered, and every reasonable inference deducible from the evidence is to be indulged in that party's favor." We will find the evidence legally insufficient if: (1) there is a complete absence of evidence for the finding, (2) there is evidence to support the finding, but rules of law or evidence bar the court from giving any weight to the evidence, (3) there is no more than a mere scintilla of evidence to support the finding, or (4) the evidence conclusively establishes the opposite of the finding. Merrell Dow Pharms, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (citing Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L.Rev. 361, 362-63 (1960)). "More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, `rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'" Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995) (quoting Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994)). The "no evidence" standard is the same for findings made under the "clear and convincing standard" as for a preponderance standard. See Justice Bill Vance, The Clear and Convincing Evidence Standard in Texas: A Critique, 48 Baylor L.Rev. 3 (1996).
To determine whether the evidence is factually sufficient to support a jury finding made under the "clear and convincing" standard, we consider all the evidence in the record both for and against it, and we will find the evidence factually insufficient "if the trier of fact could not reasonably find the existence of the fact to be established by clear and convincing evidence." Spangler, 962 S.W.2d at 257. This could occur if: "(1) the evidence is factually insufficient to support a finding by clear and convincing evidence; or (2) a finding is so contrary to the weight of contradicting evidence that no trier of fact could reasonably find the evidence to be clear and convincing." Id. This intermediate standard of review is necessary to protect the constitutionally protected interests involved in a termination of parental rights. Id.
*257 The charge required the jury to answer the following three questions:
1. Do you find from clear and convincing evidence that the father, Daniel Dale Peddicord, knowingly placed or knowingly allowed the children, I.P. and A.P., to remain in conditions or surroundings which endangered the physical or emotional well-being of the children?
2. Do you find from clear and convincing evidence that the father, Daniel Dale Peddicord, engaged in conduct or knowingly placed the children, I.P. and A.P., with persons who engaged in conduct which endangered the physical or emotional well-being of the children?
If you have answered "Yes" to either Question No. 1 or 2, then answer Question No. 3; otherwise, do not answer Question No. 3.
3. Do you find from clear and convincing evidence that termination of the parent-child relationship between the father, Daniel Dale Peddicord, and the children, I.P. and A.P., would be in the best interest of the children?
The jury answered "Yes" to all three questions. Daniel complains that the evidence was insufficient to support these answers. We disagree.
Legal Sufficiency of the Evidence
To be legally sufficient, there must have been more than a scintilla of evidence that Daniel endangered the children by either placing them or allowing them to remain in circumstances which endangered them, or by engaging in conduct or placing the children with persons who engaged in conduct which endangered them, and that termination was in the children's best interest.
As more fully described in the section below on "factual sufficiency of the evidence", witnesses testified that the children lived in squalid surroundings at home. There were unsanitary living conditions and no indoor toilet facilities. The children's physical and medical needs were not properly attended to. They were dirty, wore soiled clothes, and had head lice. I.P. was given marijuana by Daniel, and Daniel may have sexually abused A.P.
We find this evidence legally sufficient to prove both of the grounds alleged for termination. It also is more than a mere scintilla that termination was in the children's best interest for their physical and psychological well-being.
Factual Sufficiency of the Evidence
To determine if the evidence was factually sufficient for each of the three jury findings, we review all the evidence to determine if the jury could reasonably have found the facts at issue to be established by clear and convincing evidence. Spangler, 962 S.W.2d at 259.
The jury heard evidence about the first investigation by CPS in 1993. CPS workers found Natalie and the children living in a cab-over camper. There was no toilet, a lack of sanitation, no refrigerator, and no food. The children were dirty and smelled, had on dirty diapers, and had untreated colds. Their eyes were running with pus. Workers had no contact with Daniel during this incident, although there was a conversation with him fourteen days later at a status hearing. The children were temporarily placed in foster care, and later returned to Natalie.
Testimony was also presented about a 1995 investigation. Workers found unsanitary conditions inside the residence, holes in the floor, and sharp protruding edges from metal objects in the children's bedrooms. The children again were dirty and had on soiled clothing. They also had lice. In 1995, Daniel was not living with Natalie and the children. The children were temporarily placed with friends or relatives.
*258 There was also testimony of a 1996 incident in which a law enforcement officer tried to visit the home of Daniel and Natalie. He was met by Daniel who was carrying a shotgun, cursed by Natalie, and threatened by other family members.
Finally, the jury heard evidence and was shown pictures about the 1997 incident which began the series of events leading to the termination of Daniel's parental rights. In January of 1997, Daniel committed four home burglaries of which he was later convicted and sentenced to ten years incarceration. He was arrested for these burglaries in February of 1997 at the trailer where he lived with Natalie and the children. During this arrest and search of the trailer, police officers and a CPS worker found evidence of unsafe and unhealthy living conditions.
Officers found raw sewage on the ground outside the trailer. One officer testified that in his twenty-six years of experience the inside of the residence was one of the top ten nastiest he had seen. There was mud everywhere, holes in the floor and ceiling, clothing piled around, and a bad smell which permeated the place. Some marijuana and narcotics paraphernalia were found in and around the bed.
A CPS worker testified there was trash inside the trailer which smelled, medicine on the floor in easy access of the children, trash in the bathtub, and no operable toilet. Clothes were piled to the ceiling in one room, there was no place to sit, and there was a pest control problem. The children were hungry, had head lice, and could not recall when they had last bathed or eaten. I.P. told a CPS worker he smoked marijuana which he got from his father, and he explained how to roll a marijuana cigarette.
After this evidence, the jury heard testimony about the current physical and psychological conditions of the children. Witnesses included foster parents, a foster-care worker, and a therapist.
A.P. lived in foster care. Overall, she had made some progress since being placed in the state's care. However, she had serious eye problems, and also speech problems requiring weekly therapy. She required occupational therapy because she was uncoordinated, and she was in a special reading class at school. A.P. liked to sleep with the lights on because she was afraid she would be taken away. She was angry and defiant, and would not obey adults. She said Daniel was mean, whipped her and hit Natalie, was mean to animals and killed them, and that she hated him and was mad at him for being in jail. Only eight years old, she acted out sexually with men, and masturbated often, even in public. She told her foster mother that Daniel taught her to masturbate, and that she wanted to stay with the foster mother so she would not have to stay locked up all the time. Her therapist stated Daniel probably sexually abused her.
I.P. was also in foster care. He attended weekly counseling for behavioral problems. Age seven, he still wore diapers, would not use the toilet, and frequently wet his pants. I.P. liked to use curse words, and talked a lot about taking drugs and alcohol given him by his dad. I.P. had a problem with his temper, and according to his therapist, had oppositional defiant disorder. He displayed signs of having no conscience. He also expressed suicidal ideas. I .P. was angry with Daniel, who he said was mean. He also said Daniel gave him drugs and alcohol. I.P. blamed himself for Daniel being in jail, and for Daniel's drug and alcohol problems.
CPS workers testified that adoption was the only acceptable long-term solution for *259 the children. The chances were good that suitable adoptive homes could be found.
Daniel also testified at trial. He had served three of his ten-year sentence, and was eligible for parole in 2000. He thought Natalie was a good mother, although he said the marijuana found in the trailer in February of 1997 was hers. He said the care-taking of the children was left to Natalie. He claimed the disarray in the trailer in 1997 was caused by police officers tearing up the place looking for contraband. He denied that the living conditions testified about in 1993 and 1997 were bad. He also denied that the children had behavioral problems. He testified he had sent letters and other items over the years to the children. He admitted he could not provide for his children now, but was taking a life-skills course and a computer course in prison.
Daniel called a relative, Timothy Peddicord, to testify. He said Daniel was a good and loving father, and he denied ever witnessing any abuse of the children by Daniel.
The evidence strongly supports the jury finding that Daniel caused the children to be endangered. Although "`endanger' means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family life, it is not necessary that the conduct be directed at the child or that the child actually suffers injury." Texas Dept. of Human Services v. Boyds, 727 S.W.2d 531, 533 (Tex. 1987). The term simply means "to expose to loss or injury; to jeopardize." Id. For example, allowing children to live in unsanitary conditions, and neglecting their physical condition, can be endangerment. In re M.C., 917 S.W.2d 268, 269 (Tex.1996).
In addition, the evidence supports the finding that termination was in the children's best interest. The Texas Supreme Court has identified some of the factors which might justify this finding. The list is not exhaustive, nor must there be evidence of all the factors. The factors pertinent to this case are: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the plans for the child ... by the agency seeking custody; (5) the stability of the home or proposed placement; (6) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (7) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex.1976). The evidence is strong that termination was in the best interest of I.P. and A.P.
We find that there was more than sufficient evidence to support the jury's findings by clear and convincing evidence. Daniel's sufficiency issue is overruled.
ISSUE: HEARSAY
Daniel's complaint is that five witnesses gave hearsay testimony about statements made to them by the children. He claims the hearsay was properly objected to during the trial. The alleged hearsay was:
Sarena Wilki, A.P.'s foster mother, testified A.P. said she did not get to see much of the world, did not have conversations with Daniel and Natalie about her relatives, and was afraid of Daniel, who beat Natalie and hit Natalie in the head.
Ramona Harris, I.P.'s foster mother, testified I.P. said he blamed himself for being in foster care, because if he had told his daddy to not take drugs and alcohol, his daddy would be at home.
Anntionette Johnson, a foster care worker, testified about "... statements [which] were not hearsay as to what the *260 child said, but were actions which were no more than short hand rendering of hearsay...."[2]
Barbara Buss, a therapist, testified A.P. said Daniel taught A.P. how to masturbate, was mean to animals and killed them, and was mean to Natalie. A.P. also said she hated Daniel because he is in jail, and because of his drug and alcohol use.
Karen Griffin, a CPS worker, testified I.P. told her during the 1997 incident at the trailer, that he smoked marijuana given him by Daniel.
Daniel asserts that this testimony was hearsay, governed by article 38.072 of the Code of Criminal Procedure. That article is entitled: "Hearsay Statement of Child Abuse Victim." Section 1 of the article states: "This article applies to a proceeding in the prosecution of an offense under any of the following provisions of the Penal Code, if committed against a child 12 years of age or younger." It allows for hearsay from a child to be admitted if (1) the hearsay is about the alleged offense, (2) the hearsay was made to the first person age eighteen or over to whom the child made his or her first statement about the offense, (3) certain notice and discovery requirements are followed, (4) the judge conducts a hearing to determine if the hearsay is reliable, and (5) the child testifies or is available to testify at trial. Daniel presents no authority that article 38.072 applies to a civil proceeding to terminate parental rights. Daniel's argument actually is one under the Rules of Evidence, specifically Rules 801 through 806.
On the second day of trial, Sarena Wilki testified. At one point, she was asked: "What has [A.P.] told you about the life she had when she lived with." Defense counsel objected: "That's hearsay." The objection was overruled, and Wilki testified about A.P.'s statements concerning not getting to see the world, not having conversations about relatives, and Daniel. Defense counsel then objected: "I'm going to object to this line of questioning as hearsay. Anything thatjust, I'm going to make one objection to anything that's repeated that the children [say] as being hearsay and also prejudicial value outweighs probative [value]." The court responded: "Proceed." Ramona Harris testified next, and the day concluded. The other three witnesses about whom Daniel complains were called the next day of trial. Defense counsel did not make any more objections about hearsay concerning the children after the two objections during Wilki's testimony.
Defense counsel attempted a running objection. Running objections are an exception to the general rule that a party must continue to object and get a ruling for each individual instance of inadmissible testimony. Ethington v. State, 819 S.W.2d 854, 858-59 (Tex.Crim.App. 1991); see Leaird's Inc. v. Wrangler, Inc., 31 S.W.3d 688, 690 (Tex.App.-Waco 2000, pet. denied). Such an objection should "not encompass too broad a reach of subject matter over too broad a time or different witnesses. Rule 52(a)[3] must be complied with." Ethington, 819 S.W.2d at 859. Arguably, the objection was not worded sufficiently to even qualify as a running objection. In addition, the objection was to "anything that's repeated that the children [say]," which is too broad because it extends to all testimony by all witnesses about any statements made by the children. Not all statements made by the children are necessarily hearsay. Finally, no ruling was obtained on the objection as *261 required by Rule 33.1(a), and so the complaint was not preserved.
Assuming arguendo the complaint had been properly preserved, in jury trials running objections generally apply only to similar testimony by the same witness. Commerce, Crowdus & Canton v. DKS Const., 776 S.W.2d 615 (Tex.App.-Dallas 1989, no writ); Leaird's, 31 S.W.3d at 690; City of Fort Worth v. Holland, 748 S.W.2d 112, 113 (Tex.App.-Fort Worth 1988, writ denied). The extent to which a running objection may cover testimony of subsequent witnesses depends on an analysis of several factors: (1) the nature and similarity of the subsequent testimony to the prior testimony, (2) the proximity of the objection to the subsequent testimony, (3) whether the subsequent testimony is from a different witness, (4) whether a running objection was requested and granted, and (5) any other circumstances which might suggest why the objections should not have to be reurged. Correa v. General Motors Corp., 948 S.W.2d 515, 518-19 (Tex.App.-Corpus Christi 1997, no writ).
Applying these factors, the running objection did not run to the other four witnesses. Wilki testified A.P. told her she did not get to see much of the world, did not have conversations about her family, and was afraid of Daniel who beat Natalie and hit her in the head. Only the last statement by Ms. Wilki is similar to any of the alleged hearsay testimony of the other four witnesses. In addition, the other alleged hearsay was from four different people, three of whom testified the next day. Furthermore, the objection was not requested as a running objection, and it was never granted. Considering all these facts, defense counsel could not reasonably expect the objection made to Wilki's testimony to apply to the other four witnesses. Therefore, the objection did not extend to the other four witnesses.[4] Tex.R. Evid. 103(a); Tex.R.App. P. 33.1.
Even if a proper running objection had been made as to Wilki, her alleged hearsay either was not hearsay or was admissible under an exception to hearsay. The statements concern the state of mind of A.P., and so are not hearsay because they are not offered to prove the truth of the matter asserted. Tex.R. Evid. 801(d). They also fall under exceptions in Rule 803 of the Rules of Evidence to the inadmissability of hearsay. Examples are Rule 803(3), "A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health)," and Rule 803(4), "Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."
Daniel's hearsay issue is overruled.
CONCLUSION
We affirm the Order of Termination.
NOTES
[1] Legal sufficiency is preserved by: (1) a motion for new trial, (2) a motion for an instructed verdict, (3) an objection to the submission of a question in the charge, (4) a motion for a judgment notwithstanding the verdict, or (5) a motion to disregard the jury's answer to a question in the verdict. Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex.1991). Factual sufficiency is preserved by a motion for a new trial. Tex.R. Civ. P. 324(b)(2).
[2] Appellant's brief, p. 20.
[3] Now 33.1(a).
[4] Relevant to Daniel's other issue on appeal, the sufficiency of the evidence, any inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay. Tex.R. Evid. 802. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2440864/ | 962 N.E.2d 487 (2011)
356 Ill. Dec. 802
PEOPLE
v.
RIGGS.
No. 112961.
Supreme Court of Illinois.
November 1, 2011.
Disposition of Petition for Leave to Appeal Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2586530/ | 226 P.3d 130 (2010)
233 Or. App. 509
MACKLIN
v.
NOOTH.
A141804
Court of Appeals of Oregon.
January 27, 2010.
Affirmed Without Opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1548802/ | 119 F.2d 218 (1941)
NATIONAL LABOR RELATIONS BOARD
v.
HIGHLAND SHOE, Inc.
No. 3625.
Circuit Court of Appeals, First Circuit.
April 15, 1941.
Edward Schneider, Regional Atty., of Boston, Mass. (Robert B. Watts, Gen. Counsel, Laurence A. Knapp, Associate Gen. Counsel, Ernest A. Gross, Asst. Gen. Counsel, and Samuel Edes and Walter B. Wilbur, all of Washington, D. C., on the brief), for the Board.
David V. Berman, of Lewiston, Me. (Berman & Berman, of Lewiston, Me., on the brief), for respondent.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
WOODBURY, Circuit Judge.
This is a petition by the National Labor Relations Board under § 10(e) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., for the enforcement of an order[1] directing the respondent, upon *219 request, to bargain collectively with the United Shoe Workers of America as the exclusive bargaining representative of its production employees. All facts necessary to sustain the jurisdiction of this court are admitted.
In proceedings duly had under § 10(b) of the Act, the Board found that the respondent, a Maine corporation having a factory in Lewiston in that State, was, in 1937 and prior thereto, engaged in the business of manufacturing women's novelty shoes. In March, 1937, a general strike of shoe workers occurred in Lewiston and the adjoining city of Auburn which affected the respondent and caused it to suspend operations. On May 15, 1937, while this strike was still in progress, a consent election, under the supervision of the Regional Director and a conciliator of the United States Department of Labor, was held for the purpose of determining the bagaining representative of the respondent's employees. In this election only production employees were permitted to vote, that is, foremen, assistant foremen, office help and salesmen were excluded from it. The Board finds that this election was fairly conducted and that it accurately reflected the will of the participating employees. A substantial majority of the employees entitled to vote selected the United Shoe Workers of America as their bargaining representative. The respondent admits the foregoing facts, and it also admits that the employees who were allowed to vote constituted an appropriate unit for the purpose of collective bargaining and that the United Shoe Workers of America was then and still is a labor organization within the meaning of § 2(5) of the Act.
On June 12, 1937, the respondent and the Union entered into a closed shop contract, the salient provisions of which, so far as material to the issues raised by this petition, were that there should be a 10 per cent increase in wages to take effect on June 16, 1937, and a further 5 per cent increase in wages to take effect on November 1, 1937; that "no worker or group of workers shall have the right to modify or waive any of the provisions of this Agreement"; and that "This contract shall remain in force until June 16, 1938 but in event of a strike or labor trouble by the Firm's Employees or the Union, then this contract shall terminate forthwith."
Following the execution of this contract the respondent resumed operation, but during the summer and fall of 1937 orders were few and business was slack. During the latter part of September one of the respondent's directors named Arissian approached a local organizer for the Union with a request for permission to reduce wages 5 per cent below the level called for by the contract. The organizer informed Arissian that he had no authority to grant such a request but suggested that the matter be taken up with the Union's Boston office. Arissian did so by letter on the following day but his request was refused. Arissian then tried once more to obtain a reduction in wages from the local organizer for the Union referred to above but was again told by the latter that he lacked authority.
*220 On October 12 the respondent closed down its factory completely and did not reopen it again until after the middle of December. Since the factory was closed on November 1, the provision in the contract calling for a 5 per cent increase in wages on that date did not go into effect, and the respondent did not put it into effect when the factory was reopened as will appear hereafter.
On November 26 the respondent mailed post cards to each of the 167 employees who had actually worked for it during the week ending September 25 inviting them to meet at the factory at 2 P. M. on November 29. Approximately 70 of the respondent's employees attended this meeting. At it, the Board finds: "They were addressed by Arissian, who told them that the respondent had been unable to reopen the plant because of competitive conditions in the shoe industry; that other manufacturers had reduced wages as much as 12½ per cent; that it was impossible for the respondent to stay in business under the wage scale provided in the contract with the Union; but that if the employees accepted a ten per cent wage reduction they could have steady work." At the suggestion of one of the employees a vote was taken at this meeting on the question of returning to work with a 10 per cent reduction in wages. Of the employees present 65 voted to accept the reduction and 3 voted not to.
On November 30, 1937, the day following this meeting, Arissian, on behalf of the respondent, wrote a letter to the Boston office of the Union making what he called a "last appeal" for permission to reduce wages. On this occasion he asked for a reduction of 15 per cent. This letter was never answered in writing but on December 22, shortly after the respondent had reopened its factory, one Rogers, an attorney-at-law retained by the Union, and Mackesy, a local Union organizer, called at the respondent's factory and advised Arissian and two other directors of the respondent who were then present, that the Union, in order to allow the respondent to meet competition, had decided to consent to a 10 per cent reduction in the wage scale called for by the contract. The respondent's officials did not at once accept this offer, nor did they reject it, but they told Rogers that they would take it under advisement and inform him of their decision later. On the day following Rogers returned to the factory where he was told by Morian, the respondent's president, that his offer of the day before had, after consideration, been rejected by the directors. Morian also told Rogers that the directors wanted an answer to their letter of November 30. When Rogers replied that he was clothed with authority to discuss and close the matter of wage reductions with the respondent and that he was present in answer to the respondent's letter of that date he was told, "it doesn't make any difference, we don't want anything more to do with you".
On December 28, at about 8 o'clock in the morning, a strike occurred at the respondent's factory. The Board found that this strike could not "be ascribed to the Union or to the respondent's employees", but that it was fomented by the wife of one of the respondent's directors and the daughter of another, both of whom were production employees and unwilling members of the Union, and that it was "planned and instigated" by the respondent "in order to terminate its relations with the Union and avoid bargaining with it".
During the afternoon of the day of the strike an authorized representative of the respondent informed a Union organizer orally, the Union itself by letter, and the public generally by advertisement in the local evening newspaper, that it considered its contract with the Union terminated because of the strike and that from then on it would conduct an open shop.
On the day following the strike, Arissian told Mackesy that he would not confer or deal with the Union in any way and since then neither he nor any of the other directors have done so. On this same day Mackesy wrote a letter to the respondent in which he asked for a conference between representatives of the respondent and representatives of the Union "so that this matter may be satisfactorily straightened out". This letter was not answered and the Union made no further effort to negotiate with the respondent. The Board finds that "To have done so would have been futile, since Arissian testified that had the Union officials come to his office thereafter to discuss these matters with him, he would have `listened to them' but `that is all'."
On the basis of the facts briefly summarized above, the Board concluded that the respondent had refused to bargain collectively with the Union as the exclusive representative of its employees; *221 that the actions of the respondent throughout the period in question were such as to indicate to its employees its distaste for dealing with the Union and to discourage membership therein; that it had interfered with its employees' rights of self organization; and that by dealing with the employees directly rather than through the Union, it had discredited the Union as the exclusive bargaining agency for its employees. It therefore decided that the respondent had violated § 8(1) and (5) of the Act.
The finding of the Board that the respondent is engaged in interstate commerce and that its activities set forth above tend to cause labor disputes burdening and obstructing that commerce have not been challenged.
In its argument before us the respondent takes the position that some of the Board's findings of fact are not supported by the evidence and that certain of its conclusions of law are erroneous. More specifically, it contends that the mailing of cards by the respondent to its employees on November 26, 1937, and the meeting held in the factory on November 29 in consequence thereof, did not constitute an unfair labor practice; that the record contains no substantial evidence to support the finding by the Board that the respondent's directors instigated the walk-out of December 28; that the instigation of this walk-out, even if properly found, did not constitute an unfair labor practice under the Act but only a breach of contract; that there was no refusal on the part of the respondent to bargain collectively with the Union; and that the affirmative order of the Board to so bargain was improper because at the time of the hearing before it the Union had ceased to represent a majority of the respondent's employees.
The initial question presented is whether or not the acts of the respondent on November 26 and 29 were within the ban of § 8 of the Act. We have no doubt that they were. That section provides: "It shall be an unfair labor practice for an employer * * * (5) To refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a) [159(a) of this title]." The latter section reads: "Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment." Clearly to bargain directly with one's employees is not to bargain with their designated exclusive representative, but the respondent contends that the evidence does not warrant the conclusion that it in fact bargained with its employees at the meeting on November 29. This position is not well taken.
While it is true that at the meeting Arissian did not directly ask the respondent's employees to accept a cut in wages, and while it is equally true that the suggestion for a vote on the question of a wage-cut came not from him but from one of the employees present, still the fact remains that the only reason why the meeting was called was so that rates of pay might be discussed between the respondent and its employees directly and in circumvention of the Union. No other reason for the meeting has been suggested or appears in the evidence; no other reason for it can be inferred. Even though the respondent refrained from directly asking its employees to take a reduction in wages it is evident that its whole purpose in calling the meeting was to induce them to do so.
To hold that the Board must accord controlling importance to the respondent's obviously studied act of restraint would be to permit it to evade the clear mandate of the Act. In addition such a holding would be tantamount not only to a denial of the power of the Board to draw inferences from the facts before it (National Labor Relations Board v. Link-Belt Co., 61 S. Ct. 358, 85 L.Ed. ___, decided Jan. 6, 1941), but also to a denial of the power of the Board to consider the "patent imponderables permeating the entire record". International Association of Machinists v. National Labor Relations Board, 311 U.S. 72, 61 S. Ct. 83, 85 L.Ed. ___, decided Nov. 12, 1940.
Neither is there any merit to the respondent's contention that, prior to November 29, the Union had refused to bargain with it and so created an impasse which excused the respondent from its statutory duty to bargain collectively. The basic reason why this contention cannot be sustained is that there is no evidence that up to November 29 negotiations between the Union and the respondent had broken down. All that appears is that until after *222 November 29 the Union had no representative in Lewiston possessing authority to bargain for it with respect to wages, although such representatives were continuously available to the respondent in Boston, and that up to that time the Union had refused to consent to any reduction in the wage scale called for by its contract of June 12. We are unable to see any legal significance in the fact that the representative of the Union authorized to bargain for it resided in Boston instead of Lewiston, and the fact that the Union refused its consent to a reduction in wages is wholly insufficient to warrant the conclusion that it refused to bargain. It only indicates that the Union refused to consent to an alteration in the terms of a bargain already made, and there can be no doubt that a Union, like any other party to a contract, is wholly within its rights in so doing. In consequence we have no hesitation in upholding the Board's conclusion that the respondent, on November 29, 1937, violated the statute by bargaining directly with its employees as to a matter which the statute describes as appropriate for collective bargaining, after they, in an appropriate unit, had made a valid selection of an exclusive bargaining representative.
The respondent's next contention may be briefly disposed of. Even though we assume, contrary to the Board's finding, that the strike of December 28 was not instigated by the respondent and therefore that the respondent was within its rights in treating the contract of June 12 as terminated thereby according to its terms, still the respondent's statutory duty to bargain collectively with the Union as the exclusive representative of its employees did not also come to an end. There is nothing in the Act to indicate that its framers intended that its force should be expended after it had once operated to cause an employer to bargain collectively with his employees. In our view, if Congress had intended that the duty to bargain collectively which it imposed should be limited in duration to the term of an employment contract of the sort which it contemplated the Act would encourage (National Labor Relations Board v. Sands Manufacturing Co., 306 U.S. 332, 342, 59 S. Ct. 508, 83 L. Ed. 682), it would have so provided in clear and specific terms.
Furthermore, unless the statutory duty to bargain collectively is held to remain in force even after a labor contract previously made has been broken, the purpose of the Act to promote industrial peace through collective bargaining will be attained only in small measure. Whether this duty continues after an impasse has been reached in negotiations between an employer and the representative of his employees is a point we need not consider because there is nothing in the record in the case at bar to indicate that such a point was reached in the negotiations between the Union and the respondent. Consequently the refusal of the respondent to bargain with the Union after the strike of December 28 was also a violation of § 8(5) of the Act.
From the facts stated in this opinion (many unfavorable to the respondent have been omitted for the sake of brevity), all of which are amply supported by the evidence, it is clear that the respondent also violated § 8(1) of the Act in that it interfered with the right of its employees to organize themselves for the purpose of collective bargaining through representatives of their own choosing. Respondent's conduct in meeting with its employees directly on November 29 instead of with their duly constituted representatives; its conduct on December 22 in refusing to recognize Rogers' authority to represent the Union but instead insisting upon a written answer to its letter of November 30; and its further conduct, after December 28, in flatly refusing to treat with any representative of the Union, must have been designed to discourage Union activity on the part of its employees and could have had no other effect.
Recent decisions of the Supreme Court of the United States provide the answer to the respondent's contention that the order of the Board should not be enforced for the reason that at the time of the hearing before it the Union had ceased to represent a majority of the respondent's production employees.
In National Labor Relations Board v. Bradford Dyeing Association, 310 U.S. 318, 339, 340, 60 S. Ct. 918, 929, 84 L. Ed. 1226, the Supreme Court directed the enforcement of an order of the Board requiring that the respondent bargain collectively with the Textile Workers Organizing Committee and reversed an order of the Circuit Court of Appeals which had vacated that order of the Board "Until a new election has taken place by order of the Board, and the employees have expressed their preference as to what group or body shall *223 represent them." In the above case the Supreme Court found substantial support in the evidence for the Board's finding that "had it not been for the unfair labor practices of the respondent in organizing and fostering" a labor organization in competition with T. W. O. C. and "in persuading, intimidating and coercing" its employees to join that organization "and leave the T. W. O. C., the respondent's employees would have remained members of the T. W. O. C.", and endorsed the Board's conclusion that "The unfair labor practices of the respondent cannot operate to change the bargaining representative previously selected by the untrammelled will of the majority." Accordingly the court held that the Board "was justified in its finding `that on April 4, 1937, and at all times thereafter, the T. W. O. C., pursuant to Section 9(a) of the Act, was the exclusive representative of all the employees in the appropriate unit for purposes of collective bargaining * * *.'"
Substantially the same question was again considered by the Supreme Court in the case of International Association of Machinists v. National Labor Relations Board, 311 U.S. 72, 61 S. Ct. 83, 89, 85 L.Ed. ___, decided Nov. 12, 1940. In this case the court said with reference to proceedings under § 10 of the Act: "Where as a result of unfair labor practices a union cannot be said to represent an uncoerced majority, the Board has the power to take appropriate steps to the end that the effect of those practices will be dissipated. That necessarily involves an exercise of discretion on the part of the Board discretion involving an expert judgment as to ways and means of protecting the freedom of choice guaranteed to the employees by the Act. It is for the Board not the courts to determine how the effect of prior unfair labor practices may be expunged." The court also said: "It cannot be assumed that an unremedied refusal of an employer to bargain collectively with an appropriate labor organization has no effect on the development of collective bargaining."
In the case at bar the findings of the Board with respect to the effect of the respondent's unfair labor practices upon the attitude of its employees toward their Union are substantially similar to those in the Bradford Dyeing Association case, and those findings are amply supported by the evidence. Furthermore it is as apparent here as it was in the International Association of Machinists case that the unfair labor practices of the respondent tended to undermine the prestige of the Union in the eyes of those of its members who were employed by the respondent. Consequently, in accordance with the decisions cited above, we hold that the question of what, if any, action should be taken with respect to a redetermination of the bargaining representative of the respondent's employees is one for the Board under § 9(c) of the Act and not for this court in proceedings under § 10 thereof.
Since no part of the Board's order except that which has been considered above has been questioned by the respondent, we need give that order no further consideration.
A decree will be entered enforcing the order of the Board.
NOTES
[1] "Upon the basis of the above findings of fact and conclusions of law, and pursuant to section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Highland Shoe, Inc., Lewiston, Maine, and its officers, agents, successors, and assigns shall:
"1. Cease and desist from:
"(a) Refusing to bargain collectively with United Shoe Workers of America as the exclusive representative of its employees of the Lewiston, Maine factory, exclusive of foremen, assistant foremen, office help, and salesmen;
"(b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in section 7 of the National Labor Relations Act.
"2. Take the following affirmative action which the Board finds will effectuate the policies of the Act:
"(a) Upon request, bargain collectively with United Shoe Workers of America as the exclusive representative of its employees at its Lewiston, Maine, factory, exclusive of foremen, assistant foremen, office help, and salesmen, in respect to rates of pay, wages, hours of employment, and other conditions of employment;
"(b) Post immediately in conspicuous places at its Lewiston, Maine, factory and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees, stating (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1(a) and (b) of this order; and (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) of this order;
"(c) Notify the Regional Director for the First Region in writing, within ten (10) days from the date of this order, what steps the respondent has taken to comply herewith." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591021/ | 14 So. 3d 1015 (2009)
ALTIDOR
v.
STATE.
No. 4D08-864.
District Court of Appeal of Florida, Fourth District.
January 9, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591053/ | 972 So. 2d 674 (2007)
Adrian TRAVIS a/k/a Adrien Travis, Appellant
v.
STATE of Mississippi, Appellee.
No. 2004-KA-00097-COA.
Court of Appeals of Mississippi.
May 15, 2007.
Rehearing Denied October 2, 2007.
*676 Julie Ann Epps, Michael V. Ward, Canton, attorneys for appellant.
Office of the Attorney General by Deirdre McCrory, attorney for appellee.
EN BANC.
ROBERTS, J., for the Court.
SUMMARY OF THE CASE
¶ 1. On September 15, 2003, a jury sitting before the Madison County Circuit Court found Adrian Travis guilty of DUI homicide, in violation of Sections 63-11-30(1)(c) and 63-11-30(5) of the Mississippi Code Annotated (Rev.2004). On October 17, 2003, the circuit court sentenced Travis to a twenty-five year sentence with fifteen years suspended and ten years to serve. The circuit court also sentenced Travis to five years of supervised probation. Following unsuccessful motions for JNOV or, alternatively, for a new trial, Travis appeals. Travis raises three issues, listed verbatim:
I. TRAVIS'S CONVICTION MUST BE REVERSED BECAUSE THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW TO SHOW THAT HE IS GUILTY.
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ADMITTING TESTIMONY FROM OFFICER HENDERSON THAT BASED ON HIS INVESTIGATION HE BELIEVED TRAVIS HAD BEEN DRIVING THE CAR.
III. THE PROSECUTION'S ARGUMENT AND ATTEMPTS TO INTRODUCE INADMISSIBLE EVIDENCE OF TRAVIS'S SILENCE VIOLATED TRAVIS'S DUE PROCESS RIGHTS AGAINST SELF-INCRIMINATION AND TO A FAIR TRIAL UNDER THE FEDERAL AND STATE CONSTITUTIONS.
Finding no error, we affirm.
FACTS
¶ 2. The events that led to Travis's appeal originated from a fatal traffic accident that occurred during the late night of February 6, 1999, or the early morning hours of February 7, 1999. At any rate, at approximately 2:05 a.m., on February 7, 1999, Sergeant George Henderson of the Mississippi Highway Patrol received a call regarding an automobile accident at the intersection of Highway 51 and Davis Road just north of Canton in Madison County, Mississippi. Sergeant Henderson responded and arrived at the scene of the accident at 2:20 a.m. and found a two-vehicle accident. Sergeant Henderson was not the first responder at the scene, as a number of emergency responders were already there when he arrived.
¶ 3. Sergeant Henderson found a man lying in the intersection. Another man stood near the intersection. Sergeant Henderson discovered that the man lying in the intersection had no pulse. The deceased *677 was later identified as Milton Garrett. The man near the intersection was Adrian Travis. Sergeant Henderson found Travis confused and disoriented.
¶ 4. Travis told Sergeant Henderson that "he couldn't remember" what happened. According to Travis, he "was going to his girlfriend's house" and he could not remember from where he was coming. That is, Travis could not remember where he had been earlier that evening. Sergeant Henderson was concerned that Travis had suffered some form of head trauma, but Travis had no scratches, cuts, or bruises. Sergeant Henderson placed Travis in the back seat of his patrol car, but he did not handcuff Travis. However, in the process, Sergeant Henderson smelled alcohol on Travis.
¶ 5. Sergeant Henderson completed his investigation while Travis remained in his patrol car. Sergeant Henderson found no eyewitnesses to the collision. Later, Sergeant Henderson drove Travis to the station, informed Travis of his Miranda rights, and conducted an Intoxilyzer test on Travis. According to the Intoxilyzer report, Travis had a blood alcohol content of .14%, while the legal limit is .08%.
¶ 6. Sergeant Henderson's subsequent investigation revealed that Milton Garrett owned one car and that the other car was registered to a man named Eddie Winston. Neither car was registered to Travis. Sergeant Henderson did not contact Eddie Winston to determine just how his vehicle ended up involved in the collision.
¶ 7. Dr. Steven Hayne, a forensic pathologist, conducted an autopsy on Garrett. Dr. Hayne concluded that Garrett died as a result of the automobile accident. Dr. Hayne also found that the cause of Garrett's death was damage to his heart, lungs, liver, and spleen.
¶ 8. Sergeant Cecilia Kazery, an accident reconstructionist with the Mississippi Highway Patrol, determined that as Garrett proceeded north in the right lane of Highway 51, the second car ran the stop sign and "t-boned" the side of Garrett's vehicle. Sergeant Kazery did not determine the rate of speed at which the cars were traveling at the time of the collision. Sergeant Kazery did not determine the speeds of the cars for two reasons. For one, when the cars were removed from the scene of the accident, the tow truck had to manipulate Garrett's vehicle. In the process, the tow truck operator made it impossible for her to conduct the necessary tests based on the impact to the car. Second, after the collision, the cars came to rest against an embankment. That embankment stopped the progress of the cars. Accordingly, Sergeant Kazery could estimate as to a range of speed, but she could not determine a precise or accurate rate of speed.
¶ 9. However, Sergeant Kazery was able to conclude that, despite having a blood alcohol content of .18%, Garrett was traveling in the proper lane of traffic at the time of the collision. Sergeant Kazery could not conclude whether Garrett used his headlights or whether he obeyed the speed limit.
PROCEDURAL HISTORY
¶ 10. On April 28, 1999, the Madison grand jury returned an indictment against Travis and charged him with DUI homicide, in violation of Sections 63-11-30(1)(c) and 63-11-30(5) of the Mississippi Code Annotated. Travis pled "not guilty." Accordingly, the matter proceeded to trial.
¶ 11. Travis went to trial before the circuit court on September 11, 2003. The prosecution called Sergeant Henderson and Sergeant Kazery as witnesses. Additionally, the parties stipulated to the conclusions *678 in Dr. Hayne's autopsy of Garrett. At that point, the prosecution concluded its case-in-chief.
¶ 12. Subsequently, Travis's attorney made an ore tenus motion for a directed verdict. Travis then rested without calling any witnesses. The jury deliberated and found Travis guilty. On October 17, 2003, the circuit court sentenced Travis. Following unsuccessful motions for JNOV or for a new trial, Travis appeals.
ANALYSIS
I. TRAVIS'S CONVICTION MUST BE REVERSED BECAUSE THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW TO SHOW THAT HE IS GUILTY.
¶ 13. Travis claims the circuit court erred when it overruled his motion for JNOV. Travis claims we should reverse because there was insufficient evidence to find that he actually drove the vehicle registered to Eddie Winston.
¶ 14. A motion for JNOV challenges the legal sufficiency of the evidence. Griffin v. State, 883 So.2d 1201(¶ 6) (Miss.Ct.App. 2004). We will only reverse if the evidence of one or more of the elements of the charged offense is such that, considered in the light most favorable to the prosecution, reasonable and fair-minded jurors could only find the accused not guilty. Id. In testing the sufficiency of the evidence to substantiate a verdict, we are required to accept as true all the evidence favorable to the verdict as well as all reasonable inferences favorable to the verdict. E.g., Smith v. State, 907 So.2d 292(¶ 33) (Miss.2005). Based on our standard of review, we must find that reasonable and fair-minded jurors exercising sound judgment could have logically concluded that Travis was guilty.
¶ 15. The jury found Travis guilty of "operating a motor vehicle negligently while legally intoxicated" in violation of Mississippi Code Annotated §§ 63-11-30(1)(c) and (5) (Rev.2004). "[T]o be guilty of driving or operating a motor vehicle . . . with an illegally high blood alcohol content, the person must be shown by direct proof or reasonable inferences to have driven the vehicle while in that condition." Lewis v. State, 831 So. 2d 553(¶ 18) (Miss.Ct.App. 2002).
¶ 16. "A person may be arrested, tried, and convicted of operating a motor vehicle while under the influence of an intoxicating liquor even if there is no eyewitness presented who viewed the defendant operating the vehicle, provided there is sufficient evidence." Holloway v. State, 860 So.2d 1244(¶ 12) (Miss.Ct.App.2003). "Reasonable doubt need not be removed about whether the defendant had actually driven the vehicle prior to his discovery." Id. With due respect for the opinion of my colleagues, as expressed in the dissent, based on our careful review of the record, the prosecution sufficiently demonstrated, by reasonable inferences, that Travis drove the car registered to Eddie Winston.
¶ 17. The time and location of the collision allowed the jury to form a reasonable inference that Travis drove the car that hit Garrett. The collision occurred at approximately 2:00 a.m., at the intersection of Highway 51 and Davis Crossing, three to four miles north of Canton, Mississippi in Madison County. Pictures introduced into evidence show that Highway 51 and Davis Crossing are both two lane roads and are not in highly developed areas. The area can accurately be described as rural. There were no sidewalks and there was nothing to indicate the presence of pedestrian traffic. The jury could have found it unlikely that Travis would have been walking in that area at that time of the morning. *679 Accordingly, the jury could have reasonably inferred that Travis was at the scene of the collision because he drove one of the two cars involved in the collision.
¶ 18. Other pictures introduced into evidence showed the vehicles involved in the collision. Based on the condition of the two vehicles, the collision could fairly be described as severe. The jury could have found that a participant in that collision would not have been able to leave the scene of the accident. Thus, the jury could have inferred that Travis's presence at the scene indicated that he was involved in the collision in some manner.
¶ 19. Further, there were two cars involved. Both were located off the highway in a nearby ditch. Garrett, the victim, was the registered owner of one of the two cars. There was only one other car involved. There was only one other person at the scene who was not an emergency responder or a law enforcement officer. The jury could reasonably conclude that Travis was driving the only car that was not registered to the only other person at the scene. When Sergeant Henderson arrived at the scene of the accident shortly after he was dispatched, he found emergency responders, one deputy, and two civilians. One of those civilians was Garrett, the victim. Garrett was lying dead in the middle of Highway 51 when Sergeant Henderson arrived. Travis was the only living person present who was not an emergency responder. The jury could have found that Travis's proximity and his status as the sole non-emergency personnel present indicated his involvement in the collision.
¶ 20. Sergeant Henderson testified that, when he arrived at the scene, emergency personnel were tending to Travis. The jury could have reasonably inferred that, by needing some degree of medical assistance, Travis had been involved in that accident. What is more, Sergeant Henderson opined that he thought Travis had some form of head trauma. The picture of the vehicle that struck Garrett shows a large "spiderweb" section of the windshield in front of the driver's seat. A reasonable juror could have concluded that the driver of that car hit the windshield with his head. By the same logic, a reasonable juror could have concluded that Sergeant Henderson's testimony regarding the possibility that Travis suffered from head trauma was corroborated by the presence of the broken windshield. Additionally, Sergeant Henderson testified that Travis was in a "dazed," "lost," or "confused" mental state. The jury could have inferred that Travis was in that mental state as a result of his being involved in the collision and having struck his head on the windshield.
¶ 21. According to Sergeant Henderson, Travis stated that he was in transition between some unknown point and his girlfriend's house. Specifically, Travis told Sergeant Henderson that "he was on his way to his girlfriend's house." Travis did not indicate that he was on foot or that he left from some place nearby or that he was on his way to some place nearby. The jury certainly could have concluded that Travis was not on foot at that time of the morning in a remote area.
¶ 22. Statements by Travis to Sergeant Henderson supported the jury's decision. Travis told Sergeant Henderson that he could not "remember" how the collision happened. Travis did not state that he did not know how the collision occurred. The jury could have concluded that Travis was involved in the accident. That is, there is a difference between happening upon an accident that had already occurred and being unaware of how it occurred, versus being involved in a collision and not remembering how the collision occurred.
*680 ¶ 23. Sergeant Henderson tested Travis to see if Travis had been driving under the influence. On redirect, Sergeant Henderson testified that Travis never said he was not driving or that someone else was driving. Travis never told Sergeant Henderson that he was on foot. Travis also never mentioned anyone else who could have possibly been driving. While this does not demonstrate that Travis had been driving, it is certainly evidence that Sergeant Henderson was of the opinion that Travis had been driving.
¶ 24. Sergeant Henderson was absolutely of the opinion that Travis drove the car that struck Garrett. He testified that Travis drove the car that was not registered to Garrett. Additionally, the prosecutor asked Sergeant Henderson whether Travis indicated which car he had been driving. Sergeant Henderson testified that "[i]t seems like [Travis] did." A rational juror could conclude that Travis had been driving one of the two cars. "It [is] within the jury's province to draw reasonable inferences from the evidence based on their experience and common sense." Broomfield v. State, 878 So.2d 207(¶ 30) (Miss.Ct.App.2004). On cross-examination, Travis's attorney asked Sergeant Henderson what caused him to conclude that Travis drove the other car. Sergeant Henderson testified that he concluded that Travis was driving based on Travis's presence, the presence of emergency responders, and "common sense." The Mississippi Rules of Evidence permit Sergeant Henderson's opinion and inference testimony because his testimony was "(a) rationally based on the perception of the witness, (b) helpful to the clear understanding of testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." M.R.E. 701; Christian v. State, 859 So.2d 1068(¶ 7) (Miss.Ct.App.2003).
¶ 25. While reviewing challenges to the sufficiency of the evidence, we must consider the evidence in the light most consistent with the verdict. Jordan v. State, 936 So.2d 368(¶ 24) (Miss.Ct.App. 2005). In the context of an appeal of a criminal conviction, we give the State the benefit of all favorable inferences that may reasonably be drawn from the evidence. Id. If we conclude that reasonable jurors could not have found beyond a reasonable doubt that Travis was guilty, then we must reverse Travis's conviction. Id. Otherwise, we must affirm. Id.
¶ 26. The circuit court instructed the jury that it was "permitted to draw such reasonable inferences from the evidence as seem justified in the light of [their] own experience." The jury heard ample evidence to form a reasonable and permissible inference that Travis was guilty. While there was no eyewitness testimony that Travis, in fact, drove the car that hit Garrett, there was sufficient circumstantial evidence to convict Travis. "Our system of justice allows the jury to make logical and reasonable inferences and presumptions." Broomfield, 878 So.2d at 215(¶ 31). As was his constitutional right, Travis did not testify nor did he call a single witness in defense of the charge laid in the indictment. Based on the totality of the circumstances detailed at trial, a juror would have had to rely on speculation and conjecture to arrive at the conclusion that Travis was not the driver of the car that hit Garrett. "We will affirm if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt and excluding every reasonable hypothesis consistent with innocence." Dunaway v. State, 919 So. 2d 67(¶ 9) (Miss.Ct.App.2005) (internal quotations omitted). "Moreover, a mere *681 fanciful or farfetched or unreasonable hypothesis of innocence is not sufficient to require an acquittal." Id. (internal quotations omitted). The jury could only have found Travis not guilty by just such a fanciful, farfetched or unreasonable hypothesis of innocence. Accordingly, we affirm.
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ADMITTING TESTIMONY FROM OFFICER HENDERSON THAT BASED ON HIS INVESTIGATION HE BELIEVED TRAVIS HAD BEEN DRIVING THE CAR.
¶ 27. In his second issue, Travis suggests that the circuit court erred when it allowed Sergeant Henderson to testify as to his opinion that Travis drove the car registered to Winston. We review a circuit court's decision to admit evidence pursuant to our familiar abuse of discretion standard. Burton v. State, 875 So.2d 1120(¶ 6) (Miss.Ct.App.2004). We will find an abuse of discretion where a defendant shows clear prejudice resulting from an undue lack of constraint on the prosecution or undue constraint on the defense. Id. We will not disturb the circuit court's decision unless it is clearly wrong. Id.
¶ 28. During direct examination, the prosecution asked Sergeant Henderson whether he determined who had been driving the two cars. Sergeant Henderson testified that Garrett drove one car. Sergeant Henderson also testified that Travis drove the car registered to Winston. The prosecution attempted to ask Sergeant Henderson, "where did you get that information, sir?" At that point, counsel for Travis objected on the basis of hearsay. The circuit court sustained Travis's objection. Still, Sergeant Henderson testified, without objection, that Travis drove the car registered to Winston.
¶ 29. Later during direct examination, Sergeant Henderson testified that Travis never denied driving the car registered to Winston. However, Travis objected and the circuit court sustained Travis's objection. During cross-examination, Sergeant Henderson testified that he did not see Travis operate a vehicle at the time of the collision. Similarly, Sergeant Henderson testified that no witnesses told him that they saw Travis operate a vehicle at the time of the collision.
¶ 30. On redirect, the prosecution asked Sergeant Henderson "who is driving the car shown in State's Exhibit 3?" At that point, counsel for Travis objected and argued that the prosecution had failed to lay a foundation for the question. The circuit court conducted a side-bar conference. After counsel presented their respective arguments, the circuit court found:
[Sergeant Henderson] answered yes [on direct examination], when asked was this the car the Defendant was driving, or however the question was phrased. And there was no contemporaneous objection at that time. If there had been, then a foundation would have certainly been required. From a practical standpoint, usually there are no objections made to that type of question. I guess because it's presented that the witness has some basis for knowing or a basis of knowledge. Then, it comes out on cross that nobody told him. He didn't see him. The Defendant didn't tell him. So, I think that before that question is re-asked that there ought to be some further foundation for it. So, sustained, denied, and just, you know, establish a foundation. And you can ask the Defendant to challenge the points made on cross. I think at this point you'd have to establish some sort of further evidentiary basis and foundation.
*682 ¶ 31. Following the circuit court's ruling, Sergeant Henderson apparently began to again testify that Travis drove Winston's car. The circuit court instructed the prosecution that it would have to establish a foundation. The prosecution then questioned Sergeant Henderson regarding Travis's presence at the scene of the collision, Travis's statement that he "didn't remember" how the accident occurred, Travis's destination, Travis's inability to remember from where he came, the fact that Sergeant Henderson gave Travis an Intoxilyzer test, that Travis never claimed that he was not driving Winston's car, that he informed Travis that he was being charged with DUI, and that, aside from emergency personnel, Travis was the only living person at the scene.
¶ 32. At that point, the prosecution asked Sergeant Henderson, "were you able to conclude who was driving the vehicle depicted in State's Exhibit No. 3?" Counsel for Travis stated, "Same objection, Your Honor." The circuit court overruled Travis's objection and Sergeant Henderson testified that Travis had been driving. Eventually, the prosecution asked Sergeant Henderson again whether he knew who drove the car that collided into Garrett. Again, Sergeant Henderson testified, over objection, that Travis drove that car.
¶ 33. On appeal, Travis argues that the prosecution failed to establish a foundation. Travis also claims that Sergeant Henderson's testimony was not admissible as a lay opinion. The admissibility of lay witness opinion testimony is determined by a two part test under M.R.E. 701 and M.R.E. 602. Pursuant to M.R.E. 602, "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter." As for the admissibility of Sergeant Henderson's opinion and inference testimony, it is admissible if it was "(a) rationally based on the perception of the witness, (b) helpful to the clear understanding of testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." M.R.E. 701; Christian v. State, 859 So.2d 1068(¶ 7) (Miss.Ct.App.2003).
¶ 34. It is important to note that, during direct examination, Sergeant Henderson testified that Travis drove Garrett's car. Counsel for Travis did not object or otherwise challenge Sergeant Henderson's initial testimony. Consequently, the procedural bar operates, and this issue is deemed waived. Gary v. State, 796 So.2d 1054(¶ 6) (Miss.Ct.App. 2001). Accordingly, even if we found that the circuit court erred when it allowed Sergeant Henderson to testify, on redirect, that Travis drove Winston's car, we could not find that Sergeant Henderson's redirect testimony prejudiced Travis because Sergeant Henderson testified to the same thing, without objection, during his direct testimony.
¶ 35. Further, Sergeant Henderson's testimony was based on his personal knowledge. Sergeant Henderson personally observed numerous facts and circumstances at the scene of the accident. Based on those personal observations, Sergeant Henderson formed his opinion that Travis operated Winston's vehicle. Additionally, the prosecution asked Sergeant Henderson whether Travis indicated which car he had been driving. Sergeant Henderson testified that "[i]t seems like [Travis] did." A rational juror could conclude that Travis had been driving one of the two cars. On cross-examination, Travis's attorney asked Sergeant Henderson what caused him to conclude that Travis drove the other car. Sergeant Henderson testified that he concluded that Travis was driving based on Travis's presence, the *683 presence of emergency responders, and "common sense." All things considered, we cannot find that the circuit court abused its discretion, particularly where the substance of the testimony at issue went before the jury without objection.
III. THE PROSECUTION'S ARGUMENT AND ATTEMPTS TO INTRODUCE INADMISSIBLE EVIDENCE OF TRAVIS'S SILENCE VIOLATED TRAVIS'S DUE PROCESS RIGHTS AGAINST SELF-INCRIMINATION AND TO A FAIR TRIAL UNDER THE FEDERAL AND STATE CONSTITUTIONS.
¶ 36. Here, Travis claims the prosecution improperly argued that, at the scene of the accident and during the investigation that followed, Travis's failure to state that he did not drive the car at the scene was evidence that Travis actually did drive the car at the scene. According to Travis, that evidence was inadmissible for two reasons: "(1) there is no evidence that anyone ever accused Travis of the crime under circumstances so that there is in fact no admissible `admission by silence'" and "(2) evidence of a defendant's silence after Miranda warnings is not admissible." The standard of review announced in issue two, above, applies here. For brevity's sake, we will not repeat it. Suffice it to say, we review under the familiar abuse of discretion standard.
¶ 37. The first time the prosecution asked Sergeant Henderson, "Did [Travis] ever deny driving?" Counsel for Travis objected, the circuit court sustained the objection, and Travis did not request any further relief. Where a circuit court sustains an objection and a party does not ask the circuit court to instruct the jury to disregard the objectionable matter, there is no error. Perry v. State, 637 So. 2d 871, 874 (Miss.1994). Said differently, when a defendant received the relief he requested, the defendant has no basis to complain on appeal. Broomfield, 878 So.2d at 221(¶ 57).
¶ 38. On redirect, the prosecution asked Sergeant Henderson whether Travis ever told him that someone else had been driving. Sergeant Henderson answered, "No sir. He did not." Counsel for Travis did not object. We will not find that a circuit court erred when it declined to grant relief that was not requested. That is, Travis cannot complain about testimony to which he did not object. Roberson v. State, 595 So. 2d 1310, 1315 (Miss.1992).
¶ 39. During closing arguments, the prosecution stated, "[W]hen Sergeant Henderson approaches [Travis], walks up to him to find out how this accident happened, you didn't hear Henderson testify that Travis told him somebody else was driving. You would expect that." Counsel for Travis objected. The circuit court sustained the objection. Counsel for Travis did not request any further relief. As mentioned above, this statement cannot serve as the basis for reversible error, as Travis received the exact relief he requested. Similarly, after Travis's attorney presented his closing argument, the prosecution had an opportunity to rebut. During rebuttal, counsel for Travis objected to a similar argument. Again, the circuit court sustained the objection. Counsel for Travis did not ask the circuit court to admonish the jury to disregard the argument. Likewise, Travis's attorney did not request a mistrial. Regardless, the jury instructions directed the jury that it was to "disregard all evidence which was excluded by the Court from consideration during the course of the trial." "[T]he law presumes the jury is competent and follows the instructions they are given." Curry v. State, 939 So.2d 785(¶ 17) (Miss.2006). Because Travis received the relief he requested, and did not object to a separate instance, *684 we cannot find reversible error. As such, we affirm.
¶ 40. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF CONVICTION OF DUI HOMICIDE AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIFTEEN YEARS SUSPENDED, TEN TO SERVE AND FIVE YEARS OF SUPERVISED PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
MYERS, P.J., GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR. KING, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, P.J., IRVING AND CHANDLER, JJ.
KING, C.J., Dissenting.
¶41. Because I find that the evidence is not legally sufficient to support the inferences suggested by the majority, I respectfully dissent.
FACTS
¶ 42. On February 7, 1999, at approximately 2:05 a.m., Sergeant George Henderson of the Mississippi Highway Patrol received a call regarding an automobile accident at the intersection of Highway 51 and Davis Road just north of Canton, Mississippi. Henderson arrived at the scene of the accident at 2:20 a.m. to find a two-vehicle accident. According to Henderson's testimony at trial, he noted several emergency workers were already there and working the scene.
¶ 43. Upon his arrival, Henderson found a man lying in the intersection and a man standing in the vicinity of the intersection. Henderson attended to the man in the intersection first to determine whether the man needed medical attention. This man was later identified as the deceased, Milton E. Garrett. Finding no pulse, Henderson turned his attention to the second man, Adrian Travis, who appeared confused and disoriented.
¶ 44. Henderson testified that Travis said that "he couldn't remember" what happened. Travis further stated that he "was going to his girlfriend's house" but could not remember where he had been earlier that evening. Henderson testified that at this point in the investigation, he was concerned that Travis might be suffering from head trauma. Henderson also testified that Travis had no injuries no scratches, cuts, or bruises. Henderson then placed Travis in the back seat of the patrol car but did not handcuff him. Only then did Henderson detect the smell of alcohol on Travis' person.
¶ 45. Henderson testified that he completed his investigation while Travis remained in the patrol car. Henderson testified that there were no eyewitnesses to the accident. Henderson then drove Travis back to the station, where he read Travis his Miranda rights and conducted an Intoxilizer test to determine Travis' blood alcohol content. According to the Intoxilizer report, Henderson conducted the test at 3:21 a.m., and Travis registered a blood alcohol content of .14%, a reading above the legal limit of .08%.
¶ 46. Henderson's subsequent investigation revealed that the first car belonged to the deceased, but the second car was registered to Eddie Winston not to Travis. Henderson also testified at trial that he did not contact Winston.
¶ 47. At trial, the parties stipulated to the findings of Dr. Steven Hayne, the forensic pathologist who conducted the autopsy on Milton Garrett. Dr. Hayne concluded that the immediate cause of death was the automobile accident. The underlying *685 causes of death included damage to Garrett's heart, lungs, liver, and spleen.
¶ 48. The State's only other witness was the accident reconstructionist, Cecila Kazery. She testified that Garrett was driving north on Highway 51 in the right lane. Based on the skid marks at the intersection, she concluded that the second car ran the stop sign and "t-boned" Garrett's vehicle. She did not conduct speed tests to determine how fast the cars were traveling for the following reasons: First, when the cars were removed from the scene of the accident, the tow truck had to manipulate Garrett's vehicle, rendering it impossible for her to conduct the necessary tests based on the impact to the car. Second, the cars came to rest against an embankment, which stopped the progress of the cars; therefore, while Kazery could estimate a range of speed, she could not determine the speed of the vehicles accurately because the embankment interrupted the movement of the vehicles.
¶ 49. Kazery did conclude, however, that despite his .18% blood alcohol content, Garrett was traveling in the proper lane of traffic. She could not testify, however, whether he was obeying all other traffic laws, including use of headlights and observing the speed limit.
PROCEDURAL HISTORY
¶ 50. Travis was indicted for DUI homicide, in violation of Mississippi Code Annotated Sections 63-11-30(1)(c) and 63-11-30(5), on April 28, 1999. The trial began on September 11, 2003. Following the presentation of the State's case, Travis' attorney made an ore tenus motion for a directed verdict, which the trial court denied. The defense then rested without presenting any witnesses. Following the guilty verdict, Travis filed a motion for a judgment notwithstanding the verdict or for a new trial. The trial court denied that motion, and Travis timely filed this appeal.
¶ 51. I believe that the trial court improperly admitted Sergeant Henderson's opinion testimony and that the evidence was insufficient to support the guilty verdict.
ANALYSIS
Inadmissibility of Sergeant Henderson's testimony
¶ 52. With regard to the admission or exclusion of evidence, this Court considers those issues under an abuse of discretion standard. See Watkins v. State, 910 So. 2d 591, 594(¶ 14) (Miss.Ct.App.2005). In considering the admission or exclusion of evidence under that standard, this Court has held that
[w]hen we find there to have been an abuse of discretion, we still `will not reverse an erroneous admission or exclusion of evidence unless the error adversely affects a substantial right of a party.' Thus, employing this standard, we examine the trial court's ruling for abuse of discretion, and if we find an abuse of discretion we then inquire into the effect, if any, the ruling had on a substantial right of the party.
Id. at 594-95 (citations omitted).
¶ 53. Before this Court can determine whether the evidence was sufficient to support the guilty verdict, this Court must first determine whether the evidence before the jury was properly admitted. In his second point of error, Travis argues that Henderson was allowed to testify that, based upon his investigation, Travis was operating the second vehicle involved in the accident. Travis contends that the prosecutor unsuccessfully attempted to elicit testimony from Henderson that Travis was driving. Travis' objections to those attempts were sustained on the *686 grounds that the prosecutor had failed to establish a foundation for that testimony. On redirect examination, the prosecutor again attempted to elicit testimony from Henderson that Travis was driving the second vehicle. The following testimony was given:
Q: And who is driving the car shown in State's Exhibit 3?
Mr. Ward: Your Honor, I'm going to object for lack of foundation.
The Witness: Mr. Adrian Travis.
Mr. Ward: Lack of foundation.
The Court: Sustained.
¶ 54. The court then conducted a side-bar conference outside the presence of the jury. Following arguments from counsel, the Court stated as follows:
He answered yes [on direct examination], when asked was this the car the Defendant was driving, or however the question was phrased. And there was no contemporaneous objection at that time. If there had been, then a foundation would have certainly been required. From a practical standpoint, usually there are no objections made to that type of question. I guess because it's presented that the witness has some basis for knowing or a basis of knowledge. Then, it comes out on cross that nobody told him. He didn't see him. The Defendant didn't tell him. So, I think that before that question is re-asked that there ought to be some further foundation for it. . . . I think at this point you'd have to establish some sort of further evidentiary basis and foundation.
¶ 55. The prosecutor then resumed his re-direct examination. Henderson reiterated his initial testimony that the deceased, Travis, and the emergency personnel were the only persons Henderson observed at the scene. Henderson also re-iterated his testimony on cross-examination, that Travis never admitted driving the car and that even after being advised that he would be charged with DUI Travis never denied driving the car. The following exchange then occurred:
Q: Officer Henderson, were you able to conclude who was driving the vehicle depicted in State's Exhibit No. 3?
Mr. Ward: Same objection, Your Honor.
The Court: Overruled.
The Witness: Yes, sir.
Q: And who was that?
A: Mr. Adrian Travis.
¶ 56. On appeal, Travis argues that the prosecutor failed to establish a foundation. Travis argues further that Henderson's testimony constituted an inadmissible lay opinion and that the admission of that testimony violated Travis' constitutional right to confront and cross-examine witnesses and his right to a fair trial.
¶ 57. Based upon Sergeant Henderson's limited investigation, I believe that the trial court abused its discretion in permitting Sergeant Henderson to testify that it was his opinion that Travis was operating the vehicle that struck Garrett and caused his death. The admissibility of lay witness opinion testimony is determined by "a two part test under M.R.E. 701 and M.R.E. 602. The matter testified to must be within the witnesses [sic] personal knowledge, and the testimony must be helpful to the trier of fact in resolving the issue." Bower v. Bower, 758 So. 2d 405, 413(¶ 37) (Miss. 2000); Jones v. State, 678 So. 2d 707, 710 (Miss.1996).
¶ 58. Mississippi Rule of Evidence 602 states that "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter." In this case, Henderson had no personal knowledge that Travis had driven the car. *687 He did not witness Travis behind the wheel, he did not speak to others who saw Travis behind the wheel, and Travis did not admit to driving the car. In fact, Henderson testified that he could not remember whether he even asked Travis if he had been driving. Clearly, Henderson had no personal knowledge or evidence that Travis was operating the vehicle, and the initial objection was properly sustained.
¶ 59. Additionally, Mississippi Rule of Evidence 701 only permits opinion testimony from lay witnesses when that testimony "is limited to those opinions or inferences which are (a) rationally based on the perception of the witness. . . ." According to the comment to Mississippi Rule of Evidence 701, a lay opinion "must be based on first-hand knowledge." As the Mississippi Supreme Court has stated repeatedly, "[t]he requirement of personal knowledge as a prerequisite to lay opinion testimony is absolute." Wells v. State, 604 So. 2d 271, 278-279 (Miss.1992). Henderson stated repeatedly during his testimony that he had no first-hand knowledge regarding this issue; therefore, his testimony was inadmissible.
¶ 60. On redirect examination, Henderson simply re-iterated his initial testimony. Counsel for Travis again objected to this testimony, again citing a lack of foundation for Henderson's opinion. The trial court overruled the objection the second time, even though the questioning by the prosecutor elicited no new information. Henderson's testimony on cross-examination clearly demonstrates that he had no personal knowledge:
Q: Okay. Officer, you testified earlier and you were testifying about what your opinions were as far as what happened at the accident. Let me just see if I can sum this up. You don't have any personal knowledge how this accident happened. Do you?
A: Personally?
Q: Yes, sir.
A: No, Sir.
Q: Okay. You don't have any personal knowledge as to when it happened. Do you?
A: No, sir.
Q: And you don't have personal knowledge that Adrian Travis was operating an automobile. Do you?
A: No, sir.
Q: No one told you and he made no admissions to driving an automobile that night. Is that correct?
A: I can't
Q: Based on your personal knowledge.
A: I can't remember. I can't swear to it one way or the other.
. . . .
Q: A lot of this information that you put in your report regarding speed, direction and drivers are assumptions on your part. Do you agree with that?
A: No, sir. Whatever I put in my report is not an assumption.
Q: Okay.
A: I had some reason for it.
Q: Is it based in fact and personal knowledge?
A: I hope it's based on fact.
Q: Okay. Well, let me ask you this again now that you're telling me that it's based on fact: What facts or proof do you have to tell this jury, as we sit here today, that Adrian Travis was driving or operating any vehicle that night on the roads of the State of Mississippi? What proof or facts do you have for this jury? Not assumptions, proof or facts.
*688 A: Well, because I'm sworn not to fabricate anything on that. I have no reason to fabricate anything on Mr. Travis. And I have a reason if I wrote down something, I had a reason to put it down. I didn't just make it up.
Q: I'm asking you to tell the jury what proof or facts you have.
A: As far as anything I saw? None.
Q: Anything you were told.
A: I was probably told something.
Q: I'm not asking you to guess.
A: I'm not guessing. I was I had to get it from someplace.
¶ 61. Ultimately, Henderson testified on cross-examination that he based his opinion on "just common sense." Because the testimony demonstrates that Henderson had no personal knowledge, either through his own observations or through his investigation, he had no reasonable basis to give the opinion that Travis was operating the second vehicle at the scene. The trial court erred in admitting this testimony over the objections of Travis' counsel.
Insufficiency of the evidence
¶ 62. Travis raised the issue of sufficiency of the evidence in both his motion for a directed verdict and his motion for a judgment notwithstanding the verdict/motion for a new trial. The standard of review for those motions is as follows:
In Carr v. State, 208 So. 2d 886, 889 (Miss.1968), we stated that in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows "beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction." However, this inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) (citations omitted) (emphasis in original). . . . However, if a review of the evidence reveals that it is of such quality and weight that, "having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense," the evidence will be deemed to have been sufficient. Edwards, 469 So.2d at 70.
Bush v. State, 895 So. 2d 836, 843(¶ 16) (Miss.2005). Travis argues that the evidence was insufficient to find that he was operating the second vehicle involved in the accident that occurred on February 7, 1999.
¶ 63. The indictment charged Travis with violating Mississippi Code Annotated Sections 63-11-30(1)(c) and 63-11-30(5). Those statutory sections read in pertinent part as follows:
(1) It is unlawful for any person to drive of otherwise operate a vehicle within this state who . . . (c) has an alcohol concentration of ten one-hundredths percent (.10%)[1] or more for persons *689 who are above the legal age to purchase alcoholic beverages under state law. . . .
. . . .
(5) Every person who operates any motor vehicle in violation of the provision of subsection (1) of this section and who in a negligent manner causes the death of another . . . shall, upon conviction, be guilty of a separate felony for each such death. . . .
Miss.Code Ann. § 63-11-30. To prove DUI homicide, the State was required to prove the following elements: (1) that the defendant was operating a vehicle while under the influence of intoxicating liquor or with a blood alcohol level of .10% or more; and (2) that the defendant caused the death of another in a negligent manner. Hedrick v. State, 637 So. 2d 834, 837-38 (Miss.1994). Travis argues that the State failed to proved that he was operating the motor vehicle and that, therefore, the State failed to prove that he was responsible for the death of Milton Garrett.
¶ 64. After reviewing the transcript of the trial, I find that the State offered the following evidence to support its assertion that Travis was operating the motor vehicle: (1) Travis was at the scene of the accident; and (2) Sergeant Henderson, the police officer who investigated the accident, concluded that, based on his limited "investigation" and "common sense," Travis was driving the car that struck the victim's car. No other evidence was offered to prove this charge.
¶ 65. Travis has raised the admission of Henderson's testimony as a point of error on appeal, arguing that the testimony was permitted despite a lack of foundation for that opinion. As stated supra, I agree that the testimony was inadmissible. Setting aside that issue for the sake of argument, however, I would hold that even if Henderson's testimony had been properly admitted, the evidence was insufficient to conclude that Travis was operating a motor vehicle. Accordingly, the evidence is insufficient to sustain a conviction for DUI homicide, and the trial court erred in failing to grant the motion for a judgment notwithstanding the verdict.
¶ 66. To prove operation of a motor vehicle, the statute requires "that the vehicle at least be capable of being moved by the defendant, whether the accused was then in the act of causing it to move or not." Lewis v. State, 831 So. 2d 553, 557(¶ 11) (Miss.Ct.App.2002). Further, Lewis holds that
[b]eing intoxicated and being at the wheel of a parked motor vehicle with the motor off do not by themselves form sufficient facts for conviction for driving under the influence. . . . We hold that to be guilty of driving or operating a motor vehicle while under the influence of drugs or alcohol, or with an illegally high blood alcohol content, the person must be shown by direct proof or reasonable inferences to have driven the vehicle while in that condition, or as in Jones [Jones v. State, 461 So. 2d 686 (Miss.1984)] to be `operating' the vehicle while sitting behind the wheel, in control with the motor running.
Lewis, 831 So.2d at 558 (¶¶ 17-18). Applying this standard to the case sub judice, I believe that the evidence is insufficient to *690 prove that Travis was operating the second car found at the scene.
¶ 67. The testimony and evidence at trial also revealed the following information:
(1) Henderson testified on cross-examination that no eyewitnesses observed Travis driving the car (or even sitting in the car). Moreover, Henderson testified that he did not question the emergency workers who arrived at the scene first to determine whether they had seen Travis driving the car.
(2) When Henderson questioned Travis at the scene, Travis never admitted to driving the car. Travis did state that he was "going to his girlfriend's house." The prosecution argued that it was unreasonable to conclude that he walked there, but the prosecution presented no evidence of the distance between the scene of the accident and Travis' girlfriend's address, raising the issue for the first time in closing argument. Additionally, the prosecution failed to introduce evidence of Travis' whereabouts earlier that evening.
(3) The second car did not belong to Travis. The car was registered to Eddie Winston, and neither Henderson nor the district attorney followed up to find out whether Winston loaned the car to Travis or whether Winston himself was driving the car that night.
(4) Henderson also testified on cross-examination that Travis was not in possession of the keys when he arrived at the scene. The State did not produce any evidence regarding the location of the keys just after the accident.
(5) No physical evidence placed Travis in the car or even linked him to the car. Both Henderson and Kazery testified on cross-examination that they did not lift fingerprints from the car's steering wheel or conduct any other forensic tests that might have produced evidence placing Travis in the vehicle.
This evidence establishes that the State failed to prove that Travis was operating a motor vehicle, even when considered in conjunction with Henderson's "common sense" conclusion that Travis was driving the car.
¶ 68. In Lewis, this Court reversed a DUI (not DUI homicide) conviction. When a police officer approached the vehicle, which was in the left lane of traffic on eastbound Highway 90 in Harrison County, the officer found Lewis at the wheel with the keys in the ignition but with the motor off. See id. at 555(¶ 2). Lewis told the officer that the van was out of gas. The officer assisted Lewis in pushing the car to the shoulder. See id. The officer then detected the smell of alcohol. See id. at (¶ 3).
¶ 69. Although Lewis never told the officer that he wasn't driving, at trial, Lewis argued that his friend had been driving the van. See id. at 557, 558 (¶¶ 12 and 16). Lewis further testified that when the van ran out of gas, his friend left the van to walk to a gas station. Only at that point, Lewis testified, did he move to the driver's seat. See id. at 557(¶ 13). The prosecution did not introduce any evidence to prove whether the van actually was out of gas. See id. at 558(¶ 15). The Court held that the evidence was insufficient to establish that Lewis had operated the vehicle.
¶ 70. Conversely, this Court has held that circumstantial evidence can be sufficient for a conviction of DUI homicide. In Dunaway v. State, 919 So. 2d 67 (Miss. *691 Ct.App.2005), the defendant was convicted of DUI homicide following an accident in which the son of the defendant's girlfriend was killed. On appeal, Dunaway argued that the trial court erred in denying his motion for judgment notwithstanding the verdict because the State failed to prove that he was operating the vehicle at the time of the accident. This Court held that the testimony of the victim's mother that Dunaway refused to let her son drive minutes before the accident and that she observed Dunaway walking toward the driver's side of the car, combined with photographic evidence and testimony that the driver's seat and extra cushion were in the position normally used when Dunaway drove the car due to his short stature, the evidence was sufficient to sustain a conviction. See id. at 71(¶ 10).
¶ 71. In this case, Travis' mere presence at the scene and Henderson's "common sense" conclusion that Travis was the driver of the vehicle that struck the victim are insufficient to sustain a conviction for DUI homicide. In light of all of the evidence and considering that evidence which supports the guilty verdict as true, I can still only reach the conclusion that the evidence is insufficient to support a finding of guilty. Accordingly, I believe that the trial court erred in refusing to grant Travis' motion for a directed verdict and/or his motion for judgment notwithstanding the verdict.
¶ 72. The majority concludes that, under the applicable standard of review and considering the circumstantial evidence, "reasonable and fair-minded jurors in the exercise of sound judgment could have logically concluded that Travis was indeed the driver of the other vehicle. . . ." I agree that the jury should be allowed to draw inferences that are reasonably based on the circumstantial evidence; however, those inferences must comport with the direct evidence as well. The direct evidence proved that the second vehicle involved in the accident did not belong to Travis. Henderson's own testimony proved that nobody observed Travis operating the vehicle, and no direct evidence, such as fingerprints or other physical evidence, tied Travis to that vehicle.
¶ 73. The majority discusses four issues raised by the evidence that it believes the jury reasonably could have considered in concluding that Travis was operating the vehicle. I address each of those issues in turn.
1. The time and location of the accident
¶ 74. The majority states that the time and location of the accident "allowed the jury to form a reasonable inference that Travis drove the car that hit Garrett." The majority relies on the time of the accident, which it states as "approximately 2:00 a.m." and the location of the accident, which Officer Henderson testified was "three to four miles" north of Canton, Mississippi.
¶ 75. As an initial matter, the testimony before the jury was that the call came into police headquarters at approximately 2:00 a.m., not that the accident occurred at 2:00 a.m. Sergeant Henderson, the investigating officer, did not know who made the call. He testified that he was likely asleep at home when he received the call. According to his own report, Henderson arrived at the scene at 2:20 a.m. Henderson also testified that he did not know what time the accident occurred, and in response to cross-examination on the time of the accident, admitted that the accident could have occurred at midnight he simply did not know. Moreover, the medical evidence, which was limited to the cause of death, and was introduced by way of a stipulation, did not list the time of Garrett's death. Accordingly, the evidence is *692 insufficient to allow the jury to draw an inference that the accident occurred at 2:00 a.m. and that Travis' presence indicates that he was driving the second vehicle.
¶ 76. The majority calls the area rural and not likely to draw much pedestrian traffic, but the photographs introduced into evidence by the State offer only a limited perspective of the landscape. Accordingly, the majority's conclusion is not supported by the evidence and is not a reasonable inference. For example, State's Exhibit 1 is a photograph depicting Highway 51 north of the Davis Crossing intersection. The perspective of that photograph is limited, as a hill blocks the view of the landscape just past the intersection. From the evidence in the record, the Court cannot know, nor could the jury, what lay on the other side of the hill. Likewise, that photograph offers no perspective of the landscape on either side of the intersection. State's Exhibit 2 depicts Highway 51 south of the Davis Crossing intersection. Again, the perspective of the photograph is limited, but we know a little more about this photograph as a result of Henderson's testimony. Henderson testified that the intersection was three to four miles north of the Canton city limits, but he offered no testimony as to whether the area was rural or residential. Both photographs depict a limited view of the area north and south of the intersection but offer no view of the area east and west of the intersection along Davis Crossing.
¶ 77. It is quite possible, in fact, that Davis Crossing was a residential street. Without evidence in the record, however, there is no reasonable inference to be drawn with regard to whether the area surrounding that intersection was populated or, as the majority has concluded, rural. With no evidence in the record supporting either position, the jury could not draw any reasonable inference on the issue of Travis' presence at the scene. The jury could not conclude whether it was reasonable for Travis to be at the site as a pedestrian or whether it was reasonable to believe that he was somehow involved in the accident.
¶ 78. This lack of evidence refutes the inference that, by simply using the process of elimination, Travis was operating the vehicle. If the jury could not conclude, based on the record evidence, that the accident occurred at 2:00 a.m. and that the area was so rural as to prohibit pedestrian traffic, then the jury could not, by the process of elimination, conclude that Travis, as the only other person present at the scene according to Sgt. Henderson's observations, was operating a vehicle that did not belong to him.
2. The severity of the collision
¶ 79. The majority raises two issues with regard to the severity of the collision. First, it contends that the collision was severe enough that the jury could have concluded that the driver of the second vehicle would have been unable to leave the scene. I agree that, based on the photographic evidence and the fatality that resulted from the collision, the accident should be categorized as severe. However, that evidence alone, is not enough to conclude that a person involved in the accident would have been unable to leave the scene.
¶ 80. Second, the majority states that Henderson's testimony regarding Travis' mental state and need for medical attention allowed the jury to infer that Travis was involved in the accident. Henderson's testimony, however, permits no such inference. The majority states "Officer Henderson testified that, when he arrived at the scene, emergency personnel were tending to Travis." This statement simply *693 is not supported by the evidence. In fact, Officer Henderson testified that his first act upon arriving at the scene was as follows:
A: I got out to check to see if anyone needed medical attention. There was best I can remember, there was some emergency workers there. And after I'd looked at the deceased the party that was deceased, then I checked Mr. Travis to see did he need medical attention.
This statement does not indicate that Travis was receiving medical attention when Henderson arrived. Henderson then testified that Travis "was in the vicinity of the cars in the northwest corner of Davis Crossing, between Davis Crossing and 51 there." Henderson further stated that Travis seemed "kind of confused" and "kind of lost."
¶ 81. Despite Travis' perceived mental state, however, and Henderson's testimony that, "I think he was under the care of one of the firefighters or somebody, I believe, when I got there one of the emergency workers," Travis was not physically injured. Henderson testified as follows on redirect examination:
Q: Thank you. Mr. Ward asked you about the Defendant being dazed or whether or not that was a result of the accident. Did he require hospital treatment?
A: No, sir.
Q: Was he bleeding from the forehead, nose, or mouth?
A: No, sir.
Q: Was he bruised, or have any lacerations, or cuts to his head?
A: Not that I saw.
Q: Did he complain of being dizzy, or vomiting, or anything like that?
A: No, sir.
Q: Was there anything to indicate to you that he needed to go to the hospital?
A: No, sir.
¶ 82. As the majority notes, State's Exhibit 3, a photograph of the second vehicle, depicts a "spiderweb" break in the top portion of the windshield on the driver's side. Such a break would allow the jury to draw a reasonable inference that the driver of the car struck the windshield with his head. Based on the severity of the collision, it is also reasonable to conclude that the driver would have sustained at least a cut or a bruise from the impact with the windshield. Henderson's own testimony demonstrates that Travis had no injuries. Accordingly, it would be illogical to conclude that Travis was driving the second vehicle at the time of the accident.
3. Travis' unexplained presence at the scene
¶ 83. Travis told Henderson that he could not remember where he had been or how the accident occurred. He was able to tell Henderson that he was on his way to his girlfriend's house. The majority argues that because "Travis did not indicate that he was on foot or that he left from some place nearby or that he was on his way to some place nearby," the jury could conclude that Travis was driving the second vehicle.
¶ 84. This inference is not reasonable based on the limited information available to the jury. Although Travis apparently was the only person who could ascertain where he had been earlier that evening, it would have taken very little effort for Henderson to learn where Travis' girlfriend lived and the distance from the scene of the accident to her home. Henderson, however, did not investigate, nor did the district attorney's office conduct *694 an investigation. Accordingly, the jury heard no evidence regarding the distance that Travis would have traveled to reach his girlfriend's home and could not draw an inference that it was unreasonable to conclude that Travis was traveling on foot.
¶ 85. Additionally, the majority makes much of Travis' failure to deny that he was driving or to name another person as the driver. The testimony reveals, however, that Henderson failed to question Travis. Henderson testified that he couldn't remember whether Travis indicated that he was driving. He also couldn't remember whether he asked Travis if he had been driving. Henderson further testified that only Travis could provide that information. Furthermore, Henderson also testified unequivocally that Travis appeared "dazed," "confused," and "kind of lost," so it is not clear whether Travis even understood the limited questioning Henderson did conduct.
¶ 86. This testimony does not permit the jury to draw a reasonable inference that Travis was driving the second vehicle. When the jury also considered Travis' mental state and his blood-alcohol level, his failure to deny driving or name the driver and the fact that neither vehicle at the scene was registered to Travis, even less evidence exists to permit the jury to draw such an inference.
4. Sergeant Henderson's opinion
¶ 87. Finally, the majority argues that because "Officer Henderson was absolutely of the opinion that Travis drove the car that struck Garrett," the jury was allowed to rely on his opinion as proof of Travis' guilt. Had Henderson's opinion been based on any evidence at all, that opinion would carry some weight with the jury. Henderson's opinion, however, had no real basis in fact and should have been excluded.
¶ 88. Henderson's testimony that he had no personal knowledge was clear. He did not witness Travis operating a vehicle. He did not interview anyone who saw Travis operating the vehicle. Travis did not admit to operating the vehicle. Henderson's opinion that Travis was operating the vehicle was based, in his own words, on "common sense."
¶ 89. Again, the trial court should not have admitted the testimony under the standards for admission set forth in Mississippi Rules of Evidence 602 and 702. However, even if Henderson's testimony was properly admitted, that testimony, when weighed against the other evidence under the appropriate standard, does not allow the jury to draw the inference that Travis was operating the vehicle. For the foregoing reasons, I dissent and would reverse and render.
LEE, P.J., IRVING AND CHANDLER, JJ., JOIN THIS OPINION.
NOTES
[1] In 2002, the legislature amended this statute to lower the legal limit from .10% to .08%. In 1999, however, when the accident occurred, the statute read as cited supra; therefore, this Court reviews the case under the statute as it existed on the date of the accident. Christmas v. State, 700 So. 2d 262, 265 (Miss.1997) (holding that any "law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense in order to convict the offender" is an ex post facto violation). Because Travis registered a blood-alcohol content of .14%, this point is moot. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591098/ | 563 F. Supp. 222 (1983)
Paul ESTRADA
v.
Doyne BAILEY, Sheriff, Travis County, Texas.
No. A-83-CA-211.
United States District Court, W.D. Texas, Austin Division.
May 6, 1983.
William W. Rittenhouse, Austin, Tex., for petitioner.
ORDER
NOWLIN, District Judge.
Before the Court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. This cause was referred to United States Magistrate Philip E. Sanders for findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rules 1(e) and 4(b) of the Order of the Judges of the Western District of Texas dated April 7, 1980 pertaining to the powers and duties of United States Magistrates. The Magistrate filed his Recommendation on May 5, 1983. Petitioner filed his objections to the Magistrate's Recommendation on May 6, 1983.
After a de novo review of the Magistrate's Recommendation in light of the entire record in this cause, including the transcript of the hearings before the state district judge supplied to the Court by Petitioner, the Court is of the view that the Recommendation of the Magistrate is correct and should in all things be approved and adopted by the Court. The Court notes that it has carefully reviewed Petitioner's objections and is convinced that they are without merit.
In this Court's view, the Magistrate's determination that Walker v. City of Birmingham, 388 U.S. 307, 87 S. Ct. 1824, 18 L. Ed. 2d 1210 (1967), controls the disposition of the instant case is entirely correct. For whatever reason, Petitioner chose not to seek orderly review of the state district judge's April 15, 1983 order. Rather, on April 25, 1983, a full ten days after the judge's order was entered, Petitioner deliberately violated the order. Under these circumstances, the Court simply cannot accept Petitioner's blanket assertion, unsupported by citation to statutory or case authority, that he had no effective means of challenging the validity of the district judge's order other than violating that order.
Having made no attempt to discover and utilize state procedural avenues for review of the district judge's April 15, 1983 order, and having made the decision deliberately and intentionally to violate the order, Petitioner cannot now claim that he is being held in state custody for contempt unlawfully, *223 in violation of his First Amendment rights, no matter how strong his constitutional claim might have been had he followed orderly processes for seeking review of the order. This is the teaching of Walker. The Court notes that in an abundance of caution, it has carefully considered Petitioner's various arguments in support of his contention that Walker does not apply to this fact situation, and is firmly convinced that any distinctions between this case and Walker are distinctions without a difference.
IT IS THEREFORE ORDERED that the Recommendation of the United States Magistrate filed in this cause is hereby approved and adopted by the Court, and that the instant petition for habeas corpus relief is hereby DENIED.
RECOMMENDATION
PHILIP E. SANDERS, Magistrate.
Petitioner PAUL ESTRADA has filed a petition for writ of habeas corpus in the United States District Court for the Western District of Texas, Austin Division. This petition is brought pursuant to 28 U.S.C. § 2241, and is presently before the undersigned for recommendation pursuant to 28 U.S.C. § 636(b), Rule 1(f) of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrates, as amended, effective March 1, 1982.
Petitioner files this writ seeking to challenge the action of the District Judge of the 98th Judicial District of Travis County, Texas, who held Petitioner in contempt of court on April 28, 1983 for admittedly and deliberately violating an Order of that Court entered on April 15, 1983. That Order directed Petitioner not to deliver information packets he had compiled concerning the state parole laws to prospective jurors called for jury service in the district courts of Travis County, Texas.
Petitioner was present in court when the district judge announced his order from the bench, and Petitioner received a written copy of said order. He also had counsel. The district court, after a hearing, found Petitioner guilty of contempt and sentenced him to ten days in jail and a $250.00 fine.
Subsequently, on April 28, 1983, Petitioner filed a petition for writ of habeas corpus in the Texas Supreme Court; this was denied on May 2, 1983. Petitioner now presents his federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241(a) and (c)(3) alleging that the order placing him in confinement is void as being contrary to the First Amendment to the United States Constitution. The apparent issues that initially might cause a court to become involved in this case are the right of free speech under the First Amendment and the countervailing constitutional right for all persons to receive a fair and impartial trial. Case law is instructive in requiring a substantial showing of a clear and present danger to the administration of justice before First Amendment rights can be curtailed.
However, a closer look at the constitutional framework of our court system and the manner in which issues are decided and relief from its decisions afforded illuminates a problem present in this case. That problem is that Petitioner chose to disregard the order of the court which had jurisdiction. The judge had given him notice of his order in writing, setting out clearly what actions were prohibited. Petitioner's error was in choosing the wrong procedure to test the constitutionality of the prohibition as applied to him and his desires.
Two cases illustrate the requirement that the procedures of the law are paramount in challenging what persons deem to be illegal and unlawful infringements on their rights. Walker v. City of Birmingham, 388 U.S. 307, 87 S. Ct. 1824, 18 L. Ed. 2d 1210 (1967) involved a proceeding to review a criminal contempt conviction for violating a temporary injunction issued by the circuit court in Jefferson County, Alabama. In this case the petitioners planned a march in Birmingham, Alabama on Good Friday in 1963. Birmingham city officials filed an application to enjoin the march because of the threat of "imminent danger to the lives, safety, peace, tranquility and general welfare of the people of the City of Birmingham." Id., 388 U.S. at 309, 87 S.Ct. at 1826, *224 18 L.Ed.2d at 1212. The circuit judge granted a temporary injunction as requested, enjoining the petitioners from marching. The petitioners participated in a march nonetheless, and were found guilty of contempt for violating the injunction.
The Supreme Court pointed out the different procedures available to challenge the injunction, none of which were followed. The Court noted that indeed the Alabama court had subsequently in another case struck down on direct review the conviction under the ordinance in question of one of the same petitioners. Id., 388 U.S. at 319, 87 S.Ct. at 1831, 18 L.Ed.2d at 1217. The Court in Walker cited Howat v. State of Kansas, 258 U.S. 181, 42 S. Ct. 277, 66 L. Ed. 550 (1922), a case in which people had been punished by a Kansas trial court for violating an anti-strike injunction. They had claimed a right to disobey the court's order upon the ground that the State statute and the injunction were invalid under the United States Constitution. The Supreme Court there held that the Supreme Court of Kansas was correct in holding that the injunction could not be attacked collaterally and that the petitioners must resort to the ordinary process of appeal.
There are numerous ways to challenge an order prohibiting the actions of Petitioner, but attempting to collaterally attack the District Court's contempt order by disobeying it, rather than challenging it through other procedures, is not permissible. The Supreme Court stated it well in the Walker case:
This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law and carry their battle to the streets. One may sympathize with the petitioners' impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.
Id., 388 U.S. at 321, 87 S.Ct. at 1832, 18 L.Ed.2d at 1218.
It is therefore the Recommendation of this Court that Petitioner's application for writ of habeas corpus be DENIED.
Any party may file objections to this Recommendation. Failure to file written objections to the instant Recommendation within ten days from the date of its receipt shall bar an aggrieved party from receiving a de novo review by the district court of the findings and recommendations contained herein, see 28 U.S.C. § 636(b)(1)(C), and shall bar an aggrieved party from attacking the findings and recommendations contained in this report on appeal, see Nettles v. Wainwright, 677 F.2d 404, 408-410 (5th Cir.1982) (en banc).
The Clerk is directed to send a copy of the instant Recommendation to all parties return receipt requested.
Entered this 5th Day of May, 1983, at Austin, Texas. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596086/ | 530 N.W.2d 718 (1995)
Jack L. MEWES and Jane M. Mewes, Appellants,
v.
STATE FARM AUTOMOBILE INSURANCE COMPANY, INC., an Illinois Corporation, Appellee.
No. 93-1649.
Supreme Court of Iowa.
April 26, 1995.
*720 Stephen A. Rubes, Council Bluffs, for appellants.
Darrell J. Isaacson of Laird, Heiny, McManigal, Wings, Duffy & Stambaugh, P.L.C., Mason City, for appellee.
Considered by CARTER, P.J., and LAVORATO, NEUMAN, SNELL, and TERNUS, JJ.
SNELL, Justice.
In this case, Jane M. and Jack L. Mewes appeal a district court decision which granted summary judgment in favor of the State Farm Automobile Insurance Company. At issue is the propriety of State Farm policy provisions which limited the Mewes' total recovery of underinsurance coverage to an amount equal to the highest applicable State Farm policy limit rather than to an amount that would have provided them full compensation. The district court held State Farm's policies only applied to the extent the highest limit of the State Farm policies exceeded the underinsured motorist coverage provided by the primary insurer. Since the highest limit on a State Farm policy equaled the amount the primary insurer paid, the district court held that State Farm was not responsible for any additional amount. We affirm.
I. Factual and Procedural Background
On July 30, 1991, a vehicle driven by Rhonda Groesbeck struck from behind a vehicle being driven by Tammy Kraft in Cerro Gordo County, Iowa. The vehicle being driven by Tammy Kraft was owned by Dana Kraft. Jane Mewes was a passenger in the Kraft vehicle and sustained serious personal injuries as a result of the accident.
At the time of the accident, the Krafts carried an IMT Insurance Company policy which provided underinsured motorist insurance and medical payments coverage. This policy covered Jane Mewes as a passenger in the Kraft vehicle. The underinsured motorist coverage limit under this policy was $50,-000. Three insurance policies issued by State Farm also covered the Mewes. Two of these policies held underinsured motorist limits of $20,000 and the third policy carried an underinsured motorist policy limit of $50,000. The vehicles the three State Farm policies covered were not involved in the accident.
Mewes and her husband, Jack, brought an action against Groesbeck and Tammy and Dana Kraft alleging that both Tammy Kraft and Groesbeck were negligent and the negligence of each proximately caused Jane's injuries. Jack Mewes' claims were based on loss of consortium. Shortly after bringing suit, the Mewes filed an amended petition which joined IMT and State Farm as parties.
In their amended petition, the Mewes alleged they had complied with all the terms and conditions of the State Farm policies, but State Farm had in bad faith failed to make any payments under the policies. The Mewes sought recovery from State Farm for the amount of their total damages which IMT's policy did not cover and also sought punitive damages. State Farm responded to the Mewes' petition by denying that it owed them any underinsured motorist coverage due to "antistacking" and "excess" provisions in the Mewes' policies. State Farm's policies contained the following pertinent "other insurance" provisions:
If There is Other Underinsured Motor Vehicle Coverage
....
3. If the insured sustains bodily injury while occupying a vehicle not owned by you, your spouse or any relative, this coverage applies:
a. as excess to any underinsured motor vehicle coverage which applies to the vehicle as primary coverage, but
b. only in the amount by which it exceeds the primary coverage.
If coverage under more than one policy applies as excess:
*721 a. the total liability shall not exceed the difference between the limit of liability of the coverage that applies as primary and the highest limit of liability of any one of the coverages that apply as excess; and
b. we are liable only for our share. Our share is that per cent of the damages that the limit of liability of this coverage bears to the total of all underinsured motor vehicle coverage applicable as excess to the accident.
Relying on these provisions, State Farm asserted it was only responsible to the Mewes for any amount by which its highest policy limit exceeded IMT's policy limit.
Groesbeck carried liability insurance for bodily injury provided by the Midwest Mutual Insurance Company. Midwest paid its policy limit of $20,000 to the Mewes in settlement for claims the Mewes brought against Groesbeck. IMT settled with the Mewes for their underinsured motorist policy limit of $50,000.
Only State Farm remained as a defendant in the case. The Mewes filed a motion for partial summary judgment against State Farm on the ground that no material fact existed on the issue of State Farm's responsibility to pay the Mewes underinsured motorist benefits and the Mewes were entitled to these payments as a matter of law. State Farm filed a resistance to the Mewes' motion and filed its own motion for summary judgment. State Farm sought summary judgment on the ground that its policy and Iowa statutory law did not require it to pay any underinsurance benefits because IMT already paid the Mewes its policy limit of $50,000 for underinsured benefits, and State Farm's policy limits did not exceed that amount. State Farm asserted that to require State Farm to pay additional underinsured benefits would amount to "stacking" of coverage in contravention of the applicable policy and statutory law.
Following a hearing, the district court denied the Mewes' motion and granted State Farm's motion. The court held that State Farm was entitled to summary judgment because the clear intent of the relevant section of the Iowa Code was to prohibit interpolicy stacking and therefore, State Farm was only responsible for any amount by which its highest policy limit exceeded IMT's policy limit. Since State Farm's highest policy limit, $50,000, did not exceed IMT's $50,000 policy limit, the court held State Farm was not responsible for payment of any underinsured motorist benefits.
The Mewes have appealed to this court. On appeal, they assert summary judgment in favor of State Farm was inappropriate for three reasons. First, the Mewes contend Iowa Code section 516A.2 (1993) does not prohibit payment by both IMT and State Farm in this case because the exception located in 516A.2(1) states that the section's antistacking provisions do not apply to policies which contain both uninsured and underinsured motor vehicle coverage and IMT's policy includes both types of coverage. Second, if section 516A.2, as applied to this situation, only allowed recovery up to the highest underinsured motor vehicle policy limit, this would violate the purpose of underinsured motorist coverage which is to provide full compensation to victims to the extent of the injuries suffered. Finally, if section 516A.2 is applicable to the case at hand, the second unnumbered paragraph of section 516A.2(1), which expressly overrules our decision in Hernandez v. Farmers Insurance Co., 460 N.W.2d 842 (Iowa 1990), does not prohibit payment of additional underinsured benefits by State Farm because this express statement in section 516A.2(1) only holds that interpolicy stacking is prohibited when the different policies at issue are all written by the same insurer.
II. Standard and Scope of Review
We review a district court grant of a motion for summary judgment for errors of law. Iowa R.App.P. 4; Ciha v. Irons, 509 N.W.2d 492, 493 (Iowa 1993); Keller v. State, 475 N.W.2d 174, 179 (Iowa 1991); Veach v. Farmers Ins. Co., 460 N.W.2d 845, 847 (Iowa 1990). We consider the evidence in the entire record in the light most favorable to the non-movant and determine whether any issue as to any material fact exists. Ciha, 509 N.W.2d at 493; West Bend Mut. Ins. Co. v. Iowa Iron Works, Inc., 503 N.W.2d 596, 598 *722 (Iowa 1993). Summary judgment is appropriate if no issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Ciha, 509 N.W.2d at 493; West Bend Mut. Ins., 503 N.W.2d at 598.
III. Issues on Appeal
The facts of this case are not in dispute and the issues the Mewes raise involve the construction of their State Farm insurance policies and the application of Iowa Code section 516A.2 to this matter. When we construe the underinsured motorist provisions of an insurance policy, section 516A.2 forms a basic part of the policy and we treat section 516A.2 as if the parties had actually written it into the policy. Rodish v. State Farm Mut. Auto. Ins. Co., 501 N.W.2d 514, 515 (Iowa 1993); Veach, 460 N.W.2d at 847; Tri-State Ins. Co. v. De Gooyer, 379 N.W.2d 16, 17 (Iowa 1985). We construe the insurance policy in light of the purposes and intent of section 516A.2. Veach, 460 N.W.2d at 847; Tri-State, 379 N.W.2d at 17.
Resolution of the matter at hand ultimately depends on our interpretation of section 516A.2. In construing statutes, our goal is to determine and give effect to the legislature's intention. State v. Sullins, 509 N.W.2d 483, 485 (Iowa 1993). We seek a reasonable interpretation which will best effectuate the purpose of the statute and redress the wrongs the legislature sought to remedy. Id.; Krueger v. Iowa Dep't of Transp., 493 N.W.2d 844 (Iowa 1992). We will consider all parts of an enactment together and will not place undue importance on any single or isolated portion. General Elec. v. Iowa State Bd. of Tax Review, 492 N.W.2d 417, 420 (Iowa 1992).
Section 516A.2, "Constructionminimum coveragestacking," provides in relevant part:
1. Except with respect to a policy containing both underinsured motor vehicle coverage and uninsured or hit-and-run motor vehicle coverage, nothing contained in this chapter shall be construed as requiring forms of coverage provided pursuant hereto, whether alone or in combination with similar coverage afforded under other automobile liability or motor vehicle liability policies, to afford limits in excess of those that would be afforded had the insured thereunder been involved in an accident with a motorist who was insured under a policy of liability insurance with the minimum limits for bodily injury or death prescribed in subsection 10 of section 321A.1. Such forms of coverage may include terms, exclusions, limitations, conditions, and offsets which are designed to avoid duplication of insurance or other benefits.
To the extent that Hernandez v. Farmers Insurance Company, 460 N.W.2d 842 (Iowa 1990), provided for interpolicy stacking of uninsured or underinsured coverages in contravention of specific contract or policy language, the general assembly declares such decision abrogated and declares that the enforcement of antistacking provisions contained in a motor vehicle insurance policy does not frustrate the protection given to an insured under section 516A.1.
....
3. It is the intent of the general assembly that when more than one motor vehicle insurance policy is purchased by or on behalf of an injured insured and which provides uninsured, underinsured, or hit-and-run motor vehicle coverage to an insured injured in an accident, the injured insured is entitled to recover up to an amount equal to the highest single limit for uninsured, underinsured, or hit-and-run motor vehicle coverage under any one of the above described motor vehicle insurance policies insuring the injured person which amount shall be paid by the insurers according to any priority of coverage provisions contained in the policies insuring the injured person.
The Mewes initially argue that the antistacking provisions of section 516A.2 do not apply to this case because the Mewes' State Farm policies contained both underinsured and uninsured motorist coverage. The Mewes assert that the exception contained in the first sentence of section 516A.2(1) provides *723 that when an applicable policy contains both underinsured and uninsured motor vehicle coverage, chapter 516A requires all of the coverages to be given effect. State Farm asserts that the Mewes' interpretation of the first sentence of section 516A.2(1) is in error because the Mewes' interpretation would allow stacking of coverage in most insurance policies issued in Iowa since most contain both underinsured and uninsured motorist coverage. Although the trial court did not address this specific question and the Mewes did not raise it in their motion for summary judgment, State Farm has not challenged the Mewes' preservation of this specific contention for our review. See State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206-07 (Iowa 1984); Smith v. Air Feeds, Inc., 519 N.W.2d 827, 832 (Iowa App.1994).
At the outset, we note that the exception contained in section 516A.2(1) does not carry the meaning the Mewes assert. The legislature added the exception language in question in 1980 when it amended sections 516A.1 and .2 to include underinsured motorist coverage. Tri-State, 379 N.W.2d at 19. Prior to 1980, these sections only applied to uninsured and hit-and-run motorist insurance coverage. Id.
We said in Tri-State:
When the legislature amended Iowa Code sections 516A.1 and .2 to include underinsured motor vehicle coverage, the only change made in section 516A.2 was the addition of an introductory phrase now contained in the statute's first sentence. 1980 Iowa Acts 410 chapter 1106, section 7. Otherwise, the statute has remained the same as when we interpreted it in McClure.
Tri-State, 379 N.W.2d at 19.
In McClure v. Employers Mutual Casualty Co., 238 N.W.2d 321 (Iowa 1976), a case involving uninsurance, we determined that Iowa Code section 516A.2 (1975) permitted an insurer to provide limitations on the insured's motorist coverage which were designed to provide the minimum limits in order to avoid duplication of insurance and other benefits. In referring to McClure, we noted in Tri-State that a revision will not be construed as altering a particular statute absent a clear, unmistakable legislative intent. Tri-State, 379 N.W.2d at 19. We further stated:
In construing statutes we assume that the legislature was aware of our construction of the statute as it applied to uninsured motorists, and if it sought to remedy specific evils it would have clearly so indicated. See Peffers v. City of Des Moines, 299 N.W.2d 675, 678 (Iowa 1980). When underinsured coverage was included in chapter 516A, the legislature gave no indication or clear signal that the last sentence in section 516A.2 would not be applicable to the new coverage. As the statute now reads, an insurer may indeed provide for limitations designed to prevent the stacking of insurance benefits.
Tri-State, 379 N.W.2d at 19. We hold that the legislature's intent in adding the exception to section 516A.2(1) was not to exclude from the antistacking provisions all policies which contain both underinsured and uninsured motorist coverage.
The Mewes' second argument on appeal is that application of section 516A.2 in accordance with the district court's interpretation will result in a frustration of the policy goals surrounding underinsurance. State Farm contends that although the result may seem unduly harsh, the clear language of section 516A.2 demonstrates the general assembly intends underinsurance policy language limiting interpolicy stacking to be effective.
We have held in the past that the purpose of underinsured motorist coverage is full compensation to the victim to the extent of the injuries suffered. Veach, 460 N.W.2d at 848; Hernandez, 460 N.W.2d at 844; McClure v. Northland Ins. Cos., 424 N.W.2d 448, 450 (Iowa 1988); Tri-State, 379 N.W.2d at 19; American States Ins. Co. v. Estate of Tollari, 362 N.W.2d 519, 522 (Iowa 1985). We have referred to this as the "broad coverage" view. Veach, 460 N.W.2d at 848; Northland, 424 N.W.2d at 449. We have therefore held that an injured party is entitled to recover from her own underinsurance policy the amount of her loss that the carrier's liability insurance does not reach, subject *724 to the policy limit of the injured party's underinsurance coverage. Tollari, 362 N.W.2d at 522; see also Northland, 424 N.W.2d at 450.
An alternative view of insurance coverage is the "narrow coverage" view. Veach, 460 N.W.2d at 848; Northland, 424 N.W.2d at 449. Under a narrow coverage view of underinsurance policies, the goal of underinsurance is merely to place victims in the same position in which they would have been had they been injured by motorists carrying liability coverage equal to the limits of their own coverage. Northland, 424 N.W.2d at 449. Therefore, under a narrow coverage definition of underinsurance, any amount the injured party receives from another party's carrier is subtracted from the policy limit of the injured party's underinsurance policy, and the injured party's underinsurance carrier is only responsible for any difference between the coverage provided by the other carrier and the injured party's own highest policy limit. Id. We have traditionally applied this view to uninsured coverage, but not to underinsurance coverage. Id.
In Hernandez, we expressly applied broad coverage analysis to an insurer's policies which sought to limit an injured party's total underinsurance recovery to the maximum policy limit of the insurer's policies. Hernandez, 460 N.W.2d at 844. We held that since the insurer's antistacking provisions would have left the injured party without full compensation, the provisions were contrary to public policy and unenforceable. Id. at 844-45. The general assembly responded to this analysis in Hernandez by expressly abrogating the opinion to the extent that we held that interpolicy stacking of underinsured benefits could occur despite specific contract or policy language to the contrary. Iowa Code § 516A.2(1). In the unnumbered paragraph in section 516A.2(1), the legislature specifically stated that enforcement of limiting provisions such as those that exist in the policies at issue in the case before us, will not frustrate the protection section 516A.1 provides an insured. Id. The legislature's abrogation of Hernandez and section 516A.2(3)'s limitations on recovery under multiple policies demonstrate a clear intention on the part of the legislature to allow insurers to limit underinsured motorist benefits. Ciha, 509 N.W.2d at 494.
For their final argument, the Mewes assert that the legislature's intention in abrogating Hernandez was narrow. They state their position in two ways. First, they argue that the legislature merely intended to disallow policy stacking in instances where one insurer wrote all the policies in question. Secondly, they claim that the holding in Hernandez does not apply to a policy purchased by third parties unrelated to the injured party. In other words, the Mewes contend that interpolicy stacking is still permitted under facts like those presented here where different policies issued by different insurers were purchased by the insured and unrelated third parties.
We easily reject the Mewes' argument that the amendment to section 516A.2 applies only where one insurer issued all the policies containing potentially applicable underinsurance coverages. Section 516A.2(3) provides that when underinsured coverage is limited under that section to an amount equal to the highest single limits for underinsured coverage, that amount "shall be paid by the insurers according to any priority of coverage provisions." (Emphasis added.) The reference to "insurers" clearly indicates the legislature's anticipation that multiple insurance companies would be involved in the prioritization of coverage required when antistacking provisions are enforced. Consequently, limitations on interpolicy stacking must apply even when the various policies are issued by different insurers.
The plaintiffs rely on the following language from the amendment to support their second argument:
3. It is the intent of the general assembly that when more than one motor vehicle insurance policy is purchased by or on behalf of an injured insured and which provides uninsured, underinsured or hit-and-run motor vehicle coverage to an insured injured in an accident, the injured insured [may not stack the coverages from the policies].
*725 Iowa Code § 516A.2(3) (emphasis added). The Mewes point out that in Hernandez, the injured insured had purchased one policy and his mother, with whom he lived, had purchased the other two policies. Her policies included as an insured a relative residing in her household, i.e. her son. In contrast, only three of the policies involved here were purchased by the Mewes. The other policy was purchased by Kraft, the owner of the vehicle in which Jane Mewes was riding at the time of the accident. Kraft, they contend, is a third party unrelated to the Mewes. Based on this factual distinction, the Mewes argue that this case falls outside the holding of Hernandez and therefore, outside the abrogation of Hernandez by the legislature.
We are unable to accept this limited view of the legislature's intent in abrogating our Hernandez decision. First, we think that a policy such as the one purchased by Kraft, which insured passengers in her vehicle, was purchased "on behalf" of any injured passenger within the meaning of section 516A.2(3). Additionally, in the statute abrogating Hernandez, the legislature declared "that the enforcement of the antistacking provisions contained in a motor vehicle insurance policy does not frustrate the protection given an insured under section 516A.1." Id. § 516A.2(1). This statement does not support an interpretation of section 516A.2(3) that would allow enforcement of antistacking provisions only part of the time. The Mewes have offered no reason why the antistacking provisions involved in Hernandez would not frustrate the protection given by section 516A.1 but the antistacking provisions involved here would.
We conclude section 516A.2 applies here. Therefore, the district court properly gave effect to the antistacking provisions in the applicable policies.
In this case, IMT was liable for primary coverage because its insured vehicle was the one involved in the accident. Rodish, 501 N.W.2d at 515. Given the intent of the legislature in section 516A.2 and the express language of State Farm's policies, we affirm the district court's holding that the State Farm policies were excess and only would have applied if a State Farm policy had carried a higher limit than the coverage the primary IMT policy provided. Since State Farm's highest policy limit, $50,000, did not exceed IMT's $50,000 limit, State Farm is not liable to the Mewes for any amount of legal damages the Mewes have been unable to recover. The district court's granting of State Farm's motion for summary judgment is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596100/ | 28 So. 3d 1112 (2009)
J. CALDARERA & COMPANY, INC.
v.
ST. JAMES PARISH HOSPITAL SERVICE DISTRICT and the Board of Commissioners of the St. James Hospital.
No. 09-CA-166.
Court of Appeal of Louisiana, Fifth Circuit.
November 24, 2009.
*1113 John W. Waters, Jr., Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
Michael E. Botnick, Tina Crawford White, Phillip J. Antis, Jr., Attorneys at Law, New Orleans, LA, Bruce G. Mohon, Attorney at Law, Lutcher, LA, for Defendants/Appellees.
Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY and MARC E. JOHNSON.
MARC E. JOHNSON, Judge.
This appeal arises out of the granting of a Motion for Summary Judgment in favor of Defendant/Appellees, St. James Hospital Service District ("Hospital"), et al, and against Plaintiff/Appellant, J. Caldarera & Company, Inc. ("Caldarera"). For the following reasons, we affirm the decision of the trial court.
FACTS AND PROCEDURAL HISTORY
According to the pleadings, in March of 2006, the Hospital advertised for a second time for bids to construct a new community hospital in St. James Parish. On April 25, 2006, four general contractors submitted bids, which included bids from Caldarera and Yates Construction Company, Inc. ("Yates"). Each bid was opened and read aloud at the public bid opening.
All bidders were prohibited from withdrawing, modifying, or canceling their bids for sixty (60) calendar days, which was a requirement imposed by the United States Department of Agriculture ("USDA"). On June 23, 2006, one day before the expiration of that sixty-day time period, and one day before all of the bids would have expired, the Board of Commissioners of the Hospital held a Special Board meeting regarding the project. The meeting was held in order to consider, vote on and announce the winning bid of the contract. The Board of Commissioners determined that Yates was the lowest responsive and responsible bidder, and with a quorum present, voted to award the contract to Yates, pending concurrence of the USDA. The other three bids were determined to suffer defects, which rendered them nonresponsive to the requirements of the bid documents.
On the same day of the Special Board meeting, Caldarera filed a Petition for a Temporary Restraining Order ("TRO") and a Writ of Mandamus to stop the awarding of the contract to Yates. The Hospital filed an Opposition to the petition, and a telephone hearing was held the same day. The trial court denied the TRO and scheduled a summary proceeding for a preliminary injunction and the writ of mandamus for July 19, 2006.
At the July 19, 2006 summary proceeding, the trial court heard the merits of Caldarera's requests. The trial court entered an Order denying Caldarera's request for preliminary injunction and Writ of Mandamus. The trial court dismissed those same claims without prejudice in order to protect Caldarera's right to pursue its remaining claims, consisting of claims for a declaratory judgment, permanent injunction, and damages.
On September 26, 2008, the Hospital filed a Motion for Summary Judgment. The trial court issued its Judgment with Reasons granting the Hospital's motion. *1114 The trial court found that the Caldarera and Yates' bids were evaluated under the same standards; Caldarera's bid was nonresponsive; and, there was no genuine issue of material fact. From this ruling, Caldarera filed its appeal with this Court.
ASSIGNMENT OF ERRORS
On appeal, Caldarera alleges that the trial court committed the following errors:
1) The trial court erroneously concluded that Caldarera's bid was nonresponsive.
2) The trial court erroneously concluded that there was no genuine issue as to whether all bids were evaluated under the same fair and equal standard.
LAW AND ANALYSIS
Appellate courts review summary judgments de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate, asking whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. State ex rel. Dept. of Transp. and Development v. Central Gulf Towing, L.L.C., 07-166, 07-167 (La.App. 5 Cir. 10/30/07), 971 So. 2d 1163, 1164, writ denied 07-2304 (La.1/25/08) 973 So. 2d 761. A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Id. at 1164 A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is not need for trial on that issue and summary judgment is appropriate. Id. at 1164 citing Hines v. Garrett, 04-0806 (La.6/25/04), 876 So. 2d 764.
The mover in a motion for summary judgment bears the burden of proof; however, the mover needs only to "point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim ..." Fossier v. Jefferson Parish, 07-926 (La. App. 5 Cir. 4/15/08), 985 So. 2d 255, 259 citing La. C.C.P. article 966 C(2). If a defendant moving for summary judgment has made a prima facie showing that the motion should be granted, the burden shifts to the adverse party to present evidence demonstrating that material factual issues remain. Id. The failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2/20/04), 866 So. 2d 228, 233.
Responsiveness of Caldarera's Bid
Louisiana's Public Bid Law, set forth in La. R.S. 38:2212, et seq., is a prohibitory law founded on public policy. Hamp's Construction, L.L.C., v. The City of New Orleans, 05-0489 (La.2/22/06), 924 So. 2d 104, 107 citing Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority, 04-0211 (La.3/18/04), 867 So. 2d 651, 656; La. Associated Gen. Contr., Inc. v. Calcasieu Parish School Bd., 586 So. 2d 1354 (La.1991). Pursuant to the Public Bid Law, the legislature has specifically prescribed the conditions upon which it will permit public work to be done on its behalf or on behalf of its political subdivisions. Hamp's Construction, L.L.C. at 107. A political entity has no authority to take any action which is inconsistent with the Public Bid Law. Id.
La. R.S. 38:2212 A(1)(a) provides the following:
All public work exceeding the contract limit as defined in this Section, including labor and materials, to be done by a public entity shall be advertised and let by contract to the lowest responsible bidder who had bid according to the *1115 contract, plans, and specifications as advertised, and no such public work shall be done except as provided in this Part.
La. R.S. 38:2212 A(1)(b)(i) states, "The provisions and requirements of this Section, those stated in the advertisement for bids, and those required on the bid form shall not be waived by any entity."
In accordance with the express and unambiguous language of La. R.S. 38:2212 A(1)(b), any requirements of the Public Bid Law, any requirements stated in the advertisement for bid, and any requirements required on the bid form shall not be waived by the public entity. Hamp's Construction, L.L.C. at 110, 111. Once the public entity establishes a requirement, that requirement must be uniformly followed by all bidders. Hamp's Construction, L.L.C. at 111.
Caldarera avers that the trial court erred in concluding that its bid was nonresponsive. Caldarera addresses the following three deficiencies made by the Hospital: 1) Caldarera provided an incomplete job description for Bid Form 3 (the bid bond); 2) Caldarera failed to update answers on Bid Form 2 concerning active litigation and listing of completed projects; and, 3) Caldarera failed to provide a financial statement. Deficiencies numbers one (1) and three (3) are pretermitted by this Court due to the responsiveness of the second deficiency.
Bid Form 2 of the "Bidder Responsibility Questionnaire" asked the bidders to answer questions pertaining to background information, construction experience, licenses, incomplete projects, claims or suits, financial information, and references. Caldarera submitted the following answer to questions seven (7) through twelve (12) under the "Construction Experience" section:
We were previously the lowest responsive and responsible bidder on this Project on the first bid. Accordingly, a response to a similar questionnaire was provided by Mr. Bob Wallace and satisfactorily answered per a letter from JCC dated, January 4, 2005. Since that letter was accepted as responsive to this and similar questions, please find that letter attached in response to this question.
Under the "Incomplete Projects, Claims or Suits" section, Caldarera answered, "See Answer No. 7 above" for questions 17 and 18. In the letter from Caldarera dated January 4, 2005, the company provided a general list of projects it had acquired. Some of the projects, but not all, have a listed amount for the project, location of the project, awards received for a particular project, and duration of time it took to complete the project.
After review of the particular information requested in the questionnaire and the letter from Caldarera dated January 4, 2005, we find that Caldarera did not fully or satisfactorily provide the information requested. For example, question number eight (8) under the "Construction Experience" section asked for the name, location, owner, date of award of the contract, construction contract amount, and name of the owner's contact person/reference for each new hospital or health care facility the bidder constructed. The letter submitted by Caldarera as an answer to the question did not provide all of the necessary information requested. The same conclusion can also be deduced for the answers to questions nine (9) through twelve (12).
Because Caldarera failed to fully answer the questionnaire, we find that Caldarera did not comply with the requirements of Bid Form 2 of the "Bidder Responsibility Questionnaire." This deficiency, by itself, disqualifies Caldarera from qualifying as the lowest responsive and responsible bidder. The Hospital successfully "pointed out" an absence of factual support for one or more elements essential to Caldarera's *1116 claim that it submitted a responsive bid. As a result, the trial court correctly classified Caldarera as a nonresponsive bidder. Therefore, the trial court's decision to grant the Motion for Summary Judgment in favor of the Hospital is correct.
Evaluation of the Bids
Since we find that Caldarera's bid was nonresponsive, the issue as to whether Yates' bid was also nonresponsive is irrelevant to this appeal. Caldarera's bid was properly disqualified from being the lowest responsive and responsible bidder, and the trial court correctly granted the Motion for Summary Judgment in favor of the Hospital. Therefore, this Court will not address the issue.
DECREE
For the foregoing reasons, we affirm the trial court's decision to grant the Motion for Summary Judgment in favor of Defendants/Appellees. Plaintiff/Appellant is to bear the cost of the appeal.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1021328/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4340
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN GREGORY MCKOY, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (7:05-cr-253-HMH)
Submitted: December 14, 2006 Decided: December 19, 2006
Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Bradley Bennett, SALVINI & BENNETT, LLC, Greenville, South
Carolina, for Appellant. Regan Alexandra Pendleton, Assistant
United States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Gregory McKoy, Jr., appeals his sentence imposed for
possession with intent to distribute fifty grams or more of cocaine
and cocaine base and possession of a firearm in relation to a drug
trafficking offense after pleading guilty. Counsel has filed an
Anders v. California, 386 U.S. 738 (1967), brief and McKoy has not
filed a pro se supplemental brief. The Government elected not to
file a reply brief. Counsel raises issues of whether McKoy’s
sentence was reasonable. We affirm.
This court reviews the imposition of a sentence for
reasonableness. United States v. Booker, 543 U.S. 220, 260-61
(2005); United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir.
2005). After Booker, courts must calculate the appropriate
guideline range, making any appropriate factual findings. United
States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006). The court
then should consider the resulting advisory guideline range in
conjunction with the factors under 18 U.S.C.A. § 3553(a) (West 2000
& Supp. 2006), and determine an appropriate sentence. Davenport,
445 F.3d at 370. A sentence imposed within the properly calculated
guideline range is presumptively reasonable. United States v.
Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309
(2006). Because the district court adequately explained the basis
for its sentencing decision, taking into consideration McKoy’s
arguments, we conclude that the resulting 180-month sentence was
- 2 -
reasonable. See United States v. Montes-Pineda, 445 F.3d 375, 380
(4th Cir. 2006), petition for cert. filed, ___ U.S.L.W. ___ (U.S.
July 21, 2006) (No. 06-5439); Green, 436 F.3d at 457.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm McKoy’s convictions and sentence.
This court requires that counsel inform his client, in writing, of
his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be filed,
but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
- 3 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1021329/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4500
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FELIPE MARTINEZ-GARCIA, a/k/a Daniel
Espalla-Pedrasa,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:04-cr-00118-2)
Submitted: December 14, 2006 Decided: December 19, 2006
Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Reid G. Brown, Waynesville, North Carolina, for Appellant. Jill
Westmoreland Rose, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Felipe Martinez-Garcia pled guilty to one count of
conspiracy to possess with intent to distribute methamphetamines,
cocaine, and marijuana, in violation of 21 U.S.C. §§ 841; 846
(2000). Martinez-Garcia was sentenced to 188 months’ imprisonment.
We affirm the conviction and sentence.
Counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), asserting there were no meritorious grounds
for appeal, but raising the issue of whether the sentence imposed
by the district court was reasonable. Although Martinez-Garcia was
informed of his right to file a pro se supplemental brief, he did
not do so.
Because the district court properly calculated and
considered the advisory guideline range and weighed the relevant 18
U.S.C. § 3553(a) (2000) factors, we conclude Martinez-Garcia’s
188-month sentence, which was below the statutory minimum and at
the bottom of the advisory guideline range, is reasonable. See
United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005); see
also United States v. Green, 436 F.3d 449, 457 (4th Cir.) (stating
a sentence imposed within a properly calculated guideline range is
presumptively reasonable), cert. denied, 126 S. Ct. 2309 (2006).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. This court requires that counsel inform his client, in
- 2 -
writing, of his right to petition the Supreme Court of the United
States for further review. If the client requests that a petition
be filed, but counsel believes that such a petition would be
frivolous, then counsel may move this court for leave to withdraw
from representation. Counsel’s motion must state that a copy
thereof was served on the client. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid in the
decisional process.
AFFIRMED
- 3 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1021331/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4191
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARL L. LINYARD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Sol Blatt, Jr., Senior District
Judge. (9:03-cr-00620-SB)
Submitted: November 30, 2006 Decided: December 19, 2006
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Francis J. Cornely, Charleston, South Carolina, for Appellant.
Robert H. Bickerton, Assistant United States Attorney, Charleston,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carl L. Linyard was found guilty by a jury of conspiring
to distribute and possessing with intent to distribute fifty grams
or more of cocaine base “crack” (Count 1), distributing fifty grams
or more of crack (Count 3), and possessing with intent to
distribute a quantity of crack (Counts 6-10, 13, 14). The district
court adopted the recommendations in the presentence report and
sentenced Linyard to a term of life imprisonment for Counts 1 and
3 and to concurrent sentences of 360 months for the remaining
counts.
On appeal, we affirmed Linyard’s convictions, but vacated
and remanded for resentencing in light of United States v. Booker,
543 U.S. 220 (2005), and United States v. Hughes, 401 F.3d 540, 552
(4th Cir. 2005). See United States v. Linyard, No. 04-5063 (4th
Cir. Nov. 7, 2005) (unpublished). On remand, the district court
expressly referred to various 18 U.S.C.A. § 3553(a) (West 2000 &
Supp. 2006) factors, reduced Linyard’s life sentences to 400 months
of imprisonment for Counts 1 and 3, and reimposed 360-month
concurrent sentences for the remaining counts.
On appeal, counsel has filed a brief under Anders v.
California, 386 U.S. 738 (1967), alleging that there are no
meritorious claims on appeal but raising the following issue:
whether the district court erred by sentencing Linyard below his
- 2 -
advisory guideline range without giving a sufficient explanation
for the sentence. For the reasons that follow, we affirm.
We find that the district court acted reasonably in
deciding to sentence Linyard below his advisory guideline range of
life for Counts 1 and 3. United States v. Moreland, 437 F.3d 424,
433-34 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006) (regarding
variance sentence); United States v. Hairston, 96 F.3d 102, 106 (4th
Cir. 1996) (regarding departure sentence). The district court
adequately explained its reasons for imposing Linyard’s reduced
sentences. Hughes, 401 F.3d at 546.
We have examined the entire record in this case in
accordance with the requirements of Anders, including the issues
raised in Linyard’s pro se supplemental brief, and find no
meritorious issues for appeal. Accordingly, we affirm. This court
requires that counsel inform his client, in writing, of his right
to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
- 3 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591261/ | 972 So.2d 723 (2007)
Anthony Ryan LOVELESS, Appellant,
v.
CITY OF BOONEVILLE, Mississippi, Appellee.
No. 2005-KM-02017-COA.
Court of Appeals of Mississippi.
June 5, 2007.
Rehearing Denied September 25, 2007.
*724 Tommy Dexter Cadle, Kenneth Eugene Floyd, attorneys for appellant.
William Wayne Smith, Bonneville, attorney for appellee.
Before MYERS, P.J., IRVING and BARNES, JJ.
BARNES, J., for the Court.
¶ 1. Anthony Ryan Loveless was convicted on October 3, 2005, for driving under the influence of intoxicating liquor, possession of beer in a dry county, possession of whiskey, and careless driving. Aggrieved by the judgment rendered following a bench trial in this matter, Loveless appeals, asserting the following errors: (1) Loveless was subjected to double jeopardy when his trial was continued following the beginning of testimony by the City's first witness, (2) the arresting officer did not have probable cause to initiate a traffic stop of Loveless, and, (3) the citations issued to Loveless were insufficient/improper and did not confer jurisdiction upon the court. Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. In the early morning hours of August 1, 2003, Anthony Ryan Loveless was *725 stopped in the north-bound lane at a four-way stop sign in the City of Booneville, Mississippi. Directly across from Loveless, in the south-bound lane, Booneville Police Officer Bryon Parker was also stopped at the four-way stop.[1] According to Officer Parker, while the two vehicles were awaiting their turn to proceed, Officer Parker heard loud music emanating from Loveless's vehicle. After Loveless proceeded north through the intersection, Officer Parker turned his cruiser around and followed Loveless with the intention of pulling him over and warning Loveless to turn the volume of the music down. Officer Parker testified that, while he was following Loveless, he witnessed Loveless cross over the center line, with both driver's side tires crossing over into the south-bound lane. At this point, Officer Parker turned on his blue lights, signaling Loveless to pull over. Loveless drove a short distance further and then pulled over without incident.
¶ 3. Upon approaching Loveless's vehicle, Officer Parker noticed a strong odor of alcohol coming from the vehicle. Officer Parker also testified that Loveless's speech was slurred. After observing these signs of intoxication, Officer Parker asked Loveless to exit his vehicle. When he did so, Officer Parker noticed a beer can in the console of Loveless's vehicle, which Parker discovered was about half full, or half empty. In addition, Officer Parker testified that he continued to detect the aroma of beer on Loveless's breath after they went to the rear of Loveless's vehicle. A search of Loveless's vehicle revealed a bottle of vodka and four unopened cans of beer located in a box behind the seat of Loveless's vehicle.
¶ 4. Based on the illegal possession of beer and vodka, and pursuant to Officer Parker's suspicion that Loveless was driving under the influence, Loveless was transported to the Justice Center where Officer Parker administered field sobriety tests, including: the horizontal gaze nystagmus test, the walk and turn test, and the one-leg stand test. Loveless refused to take the breathalyzer test on the Intoxilyzer 5000; however, based on Loveless's performance in the field sobriety tests, his slurred speech, and evidence of alcohol consumption, Officer Parker determined that Loveless was under the influence of intoxicating liquor at the time he was operating his vehicle. Accordingly, Loveless was arrested and charged with driving under the influence, possession of beer in a dry county, possession of whiskey, and careless driving.
¶ 5. Loveless was tried and convicted of all four charges in the Municipal Court of Booneville, Mississippi, and Loveless timely filed an appeal with the Circuit Court of Prentiss County. A trial de novo was commenced on March 5, 2004, and the City called its first witness, Officer Parker. Officer Parker was sworn and had responded to a few background questions when Loveless interposed an objection to Officer Parker's testifying based on an alleged discovery violation under Rule 9.04 of the Uniform Circuit and County Court Rules.[2] Specifically, Loveless argued that the City had failed to furnish a witness list identifying Officer Parker as a potential witness. The City responded by pointing *726 out that, in response to Loveless's discovery request, the following letter was furnished:
In response to your letter of February 26, 2004 my file reflects that I provided you with information regarding this case by letter of September 10, 2003 which was prior to the trial of this case in city court.
I have no additional evidence other than the evidence which was presented in the city court at the trial of this case.
Loveless argued that the City's response did not satisfy the disclosure requirements outlined in Rule 9.04, and therefore, he argued, the City could not offer the testimony of Officer Parker.
¶ 6. After hearing the argument of both parties, the circuit court offered Loveless the opportunity to interview Officer Parker or, in the alternative, offered to grant a continuance. Loveless refused to accept either alternative and argued that jeopardy attached and that the case should be dismissed. The circuit court ruled that jeopardy had not attached and granted a continuance over Loveless's objection, continuing the trial from its March 5, 2004 setting until September 24, 2004.
¶ 7. Trial in this matter was subsequently reset three times,[3] and Loveless's bench trial was ultimately conducted on June 20, 2005. The circuit court's judgment convicting Loveless of careless driving, driving under the influence of intoxicating liquor in violation of Mississippi Code Annotated section 63-11-30-(1)(a) (Rev.2004), possession of beer in a dry county, and possession of vodka in violation of the Mississippi Local Option Alcoholic Beverage Control Act was entered on October 3, 2005. Loveless filed his notice of appeal on October 25, 2005. His argument to this Court is that the circuit court erred by finding that jeopardy had not attached when the first witness was sworn, that the circuit court erred in finding that probable cause existed to allow Officer Parker to initiate the traffic stop on Loveless, and that the circuit court erred in failing to dismiss this case for lack of jurisdiction. Loveless contends that jurisdiction was lacking in this case due to insufficient and improper affidavits with respect to the charges of DUI, possession of whiskey, and possession of beer in a dry county. Finding no reversible error in Loveless's assignments of error, we affirm the judgment of the circuit court.
DISCUSSION
1. Double Jeopardy
¶ 8. Loveless objected to the testimony of the City's first witness, Officer Parker, and argued to the circuit court that the City's letter responding to Loveless's discovery request did not comply with Uniform Circuit and County Court Rule 9.04(A)(1). According to that provision, upon written request the prosecution must provide to the defendant or defendant's attorney, among other information, the "[n]ames and addresses of all witnesses in chief proposed to be offered by the prosecution at trial. . . ." Loveless contended that, rather than referencing evidence and witnesses presented at the trial in municipal court, Rule 9.04 mandated that a new list be provided with the names and addresses of witnesses in chief to be called at the de novo trial in circuit court. Because Rule 9.04 was not followed, Loveless *727 argued that the City was not allowed to present the testimony of Officer Parker. The circuit court stated that it would not dismiss the case based on the City's alleged discovery violation. Rather, the circuit court offered Loveless the alternative remedies outlined by Rule 9.04(I), which provides, in pertinent part, as follows:
If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows:
1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and
2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.
¶ 9. Although the circuit court did not explicitly state that the City Prosecutor violated the discovery rules outlined in Rule 9.04, the trial judge at least implicitly found that Rule 9.04 had not been technically complied with when she offered Loveless the benefit of the remedial provisions of Rule 9.04(I).[4] Loveless refused the circuit court's offer to allow him the opportunity to interview Officer Parker. Loveless likewise refused the court's alternative offer of a continuance, asserting that because Officer Parker began testifying, jeopardy attached and any agreement to a continuance would waive Loveless's double jeopardy defense.[5] The circuit court nevertheless continued the case, and Loveless was finally tried and convicted approximately one year and three months after his trial began.[6] On appeal, Loveless argues that he was placed in double jeopardy when the circuit court resumed his trial following the extended continuance. Although we agree that jeopardy attached when the City's first witness was sworn and began giving testimony, we are not persuaded that Loveless was subjected to double jeopardy based on the circuit court's continuance.
¶ 10. "The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense." Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) (citing United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976)). "As a part of this protection against multiple prosecutions, the Double Jeopardy Clause affords a criminal defendant a `valued right to have his trial completed by a particular *728 tribunal.'" Id. at 671-72, 102 S.Ct. 2083 (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949)). After jeopardy attaches in a criminal proceeding, "if a mistrial is granted upon the court's own motion, or upon the state's motion, a second trial is barred because of double jeopardy unless there was a manifest necessity for the mistrial, taking into consideration all the circumstances." Watts v. State, 492 So.2d 1281, 1284 (Miss. 1986) (citing Jones v. State, 398 So.2d 1312 (Miss.1981)). "In a jury trial, jeopardy attaches once the jury has been empaneled and sworn." Wheeler v. State, 826 So.2d 731, 738(¶ 26) (Miss.2002) (citing Simmons v. State, 746 So.2d 302, 309 (Miss.1999)).
¶ 11. Our analysis in the instant case begins with the question of whether jeopardy had attached at or prior to the time Officer Parker was sworn and began giving testimony. We must then determine whether the continuance at issue was sufficiently like a mistrial such that resumption of the trial constituted a second jeopardy. If either question is answered in the negative, then we need not address the "manifest necessity" prong of double jeopardy analysis.
¶ 12. In King v. State, 527 So.2d 641 (Miss.1988), our supreme court was presented with issues similar to those before this Court. Specifically, the King court addressed the questions of when jeopardy attaches in a bench trial, and whether a continuance in a bench trial is sufficiently similar to a mistrial in a jury proceeding so as to trigger double jeopardy scrutiny. As to the first question, the King court agreed with the appellant's argument "that jeopardy attaches for a bench trial when the first witness is sworn." Id. at 643 (citing U.S. v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977)). With respect to whether a bench trial continuance is comparable to a mistrial in a jury proceeding, the supreme court stated that "a continuance is not a mistrial in all situations, especially where, as here, the continuance is granted without defendant's objection." Id. at 644. In addressing this question, our supreme court considered the following language from Webb v. Hutto, 720 F.2d 375 (4th Cir.1983), a case in which a five-day continuance was deemed not violative of the Double Jeopardy Clause:
The simple, yet to us controlling, consideration is that the accused must be placed in jeopardy twice for double jeopardy to exist. It happens when the second event involves a completely new beginning, i.e., when the second proceeding takes place before a new trier of fact, whether that be a different judge or jury, or the same judge starting with a clean slate. It simply does not occur when the very same proceeding continues on after a brief postponement before the first and only trier of fact, as was the case here.
Id. (quoting Webb, 720 F.2d at 379). Finding it "indisputable that the subsequent proceeding was a continuation of the first hearing," noting the defendant's failure to object to the continuance, and comparing the brief six-day continuance at issue to the five-day continuance in Webb, the King court found that the continuance was not sufficiently like a mistrial, and therefore, the resumption of the proceedings did not constitute double jeopardy. Id. Since double jeopardy scrutiny was not warranted, the King court deemed it unnecessary to address the "manifest necessity" prong of double jeopardy analysis as discussed in Watts, 492 So.2d at 1284. King, 527 So.2d at 644.
¶ 13. In the instant case, although the delay caused by the continuance was not brief as compared to the delays at issue in King and Webb, we find that since Loveless's *729 trial resumed before the same trier of fact and was not "a completely new beginning," Loveless was not subjected to double jeopardy. Accordingly, while jeopardy attached at the time Office Parker was sworn and began giving testimony on March 5, 2004, the resumption of Loveless's trial on June 20, 2005, was merely a continuance of the March 5, 2004, proceeding and, therefore, did not constitute double jeopardy. Since the resumption of Loveless's bench trial did not constitute double jeopardy, we need not determine whether there was manifest necessity for the continuance in this case. See id.
¶ 14. We also note that, while the King court "lean[ed] toward accepting the rationale of the Fourth Circuit in Webb," the supreme court nevertheless briefly discussed State v. O'Keefe, 135 N.J.Super. 430, 343 A.2d 509 (1975). King, 527 So.2d at 644. In O'Keefe, the New Jersey Supreme Court stated that "[e]ven though a declaration of mistrial caused by prosecutorial neglect would bar retrial, a continuance in the course of a trial caused by prosecutorial neglect should not bar resumption unless the neglect is inexcusable and the continuance is an unreasonable break in the continuity of the trial." O'Keefe, 343 A.2d at 515. Hence, according to O'Keefe, a continuance caused by prosecutorial neglect does not result in double jeopardy unless the neglect was (1) inexcusable, and (2) the length of the continuance constituted an unreasonable break in continuity.
¶ 15. We find that O'Keefe, even though not explicitly adopted by our supreme court, would compel the same conclusion that we reach in relying on the reasoning of Webb and King. The conclusion that double jeopardy was not implicated by the continuance and resumption of Loveless's trial is compelled by O'Keefe inasmuch as the city prosecutor's neglect, if any, in not complying with Loveless's discovery request as required by Rule 9.04 did not rise to the level of inexcusable neglect. First, in its discovery response, the City asserted that it would introduce the same evidence and testimony in circuit court as was introduced during the municipal court trial, a response that was neither elusive nor prejudicial to Loveless.[7] Second, assuming, without deciding, that the City's response was technically deficient, we note that Loveless received the City's allegedly deficient discovery response at least two days prior to the March 5, 2004, trial, and Loveless could have sought supplemental discovery prior to Officer Parker's taking the witness stand.[8] Additionally, we note that the trial court addressed other pretrial matters on the day of trial but prior to commencement of the proceedings, and Loveless could have raised the allegedly defective discovery response at that point. However, Loveless failed to object to Officer Parker's giving testimony until after the officer was sworn and began testifying, apparently with the intention of having the charges dismissed.[9] Considering the timing *730 and sequence of the events just described, as well as the City Prosecutor's apparent lack of bad faith in responding to Loveless's discovery request, we find no inexcusable neglect on the part of the prosecutor. Accordingly, application of the O'Keefe test to the facts of this case leads us to the same conclusion that we reach pursuant to the reasoning of Webb and King: that Loveless was not subjected to double jeopardy.
2. Probable Cause
¶ 16. Loveless argues that, since Officer Parker could not cite the noise ordinance that Loveless was allegedly violating on the morning in question, and could not recite the elements which constitute a violation of the ordinance, there was no probable cause to make a traffic stop which led to Loveless's arrest.[10] Based on this lack of probable cause, Loveless asserts error by the circuit court "in finding that there was probable cause to initiate the stop of" Loveless. We disagree.
¶ 17. With regard to Officer Parker's inability to cite the noise ordinance and elements for a violation thereof, we note that it is impractical to expect an officer of the law to possess the level of knowledge which Loveless claims, at least implicitly, that an officer should have with respect to every law an officer is charged with enforcing. We suspect that even the most knowledgeable legal scholar could not spontaneously recite the citation and elements of all of the criminal statutes and ordinances which are in effect in Mississippi.
¶ 18. Such a level of knowledge is not required to establish probable cause for an arrest or a traffic stop. Instead, "the test for probable cause in Mississippi is the totality of the circumstances." Harrison v. State, 800 So.2d 1134, 1138(¶ 18) (Miss.2001) (citing Haddox v. State, 636 So.2d 1229, 1235 (Miss.1994)). Probable cause has been further defined as:
a practical, nontechnical concept, based upon the conventional consideration of every day life on which reasonable prudent men, not legal technicians act. It arises when the facts and circumstances with[in] an officer's knowledge, or of which he has reasonably trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it.
Id. (quoting Conway v. State, 397 So.2d 1095, 1098 (Miss.1980)). Even if Officer Parker's belief that Loveless was violating *731 a noise ordinance was based on an erroneous conclusion of law or fact, such mistake does not necessarily render the probable cause defective, as long as Officer Parker's "probable cause [was] based on good faith and a reasonable basis then it is valid." Id. at 1138-39(¶ 19) (citing United States v. Wallace, 213 F.3d 1216 (9th Cir.2000) (finding probable cause existed because of reasonable belief that suspect committed or was committing crime even though officer was mistaken that all front-window tint was illegal); United States v. Sanders, 196 F.3d 910 (8th Cir.1999) (officer objectively had reasonable basis for probable cause even though vehicle was not technically in violation of the statute); DeChene v. Smallwood, 226 Va. 475, 311 S.E.2d 749 (1984) (holding arrest resulting from mistake of law should be judged by the same test as one stemming from mistake of fact; whether the arresting officer acted "in good faith and with probable cause")).
¶ 19. Loveless points to nothing in the record to indicate a lack of good faith and reasonable belief by Officer Parker that Loveless was violating a City of Booneville noise ordinance. However, even assuming that Officer Parker did not have probable cause to initiate a traffic stop based on the belief that Loveless violated a noise ordinance, we note that Office Parker did not turn on his blue lights and signal Loveless to stop his vehicle until Parker saw Loveless cross the center line of the road. There is no requirement that an officer have probable cause before following a motorist, and, up until the point when Loveless crossed the center line and Officer Parker engaged his blue lights, following Loveless is all that Officer Parker did. Accordingly, even if Officer Parker's suspicion of a noise ordinance violation was not sufficient to establish probable cause, and we find that it was, Loveless's careless driving evidenced by his crossing the center line of the road clearly established probable cause sufficient for Officer Parker to initiate the traffic stop. This assignment of error is, therefore, wholly without merit.
3. Jurisdiction
¶ 20. Loveless contends that the uniform traffic ticket charging him with driving under the influence, first offense, as well as the affidavits charging him with possession of beer and possession of whiskey were defective. Based on these defects, Loveless contends that the municipal court did not have jurisdiction with respect to these charges. Further, since the circuit court's jurisdiction is only valid insofar as jurisdiction was valid in municipal court, Loveless asserts that the circuit court was without jurisdiction also.
¶ 21. Questions regarding jurisdiction and statutory construction are questions of law which we review de novo. Jensen v. State, 798 So.2d 383, 384(¶ 6) (Miss.2001). For reasons to be discussed below, we find that the errors or omissions contained in the uniform DUI citation and possession affidavits do not render these documents defective. Therefore, jurisdiction was properly exercised in this case, and any argument to the contrary is without merit.
¶ 22. Loveless points out that the DUI citation indicated an arraignment date of August 18, 2003, at 3:30, but did not indicate whether it would be a.m. or p.m. Further, the citation lists the municipal court address as 203 N. Main Street when in fact the address for the municipal court was 1901 East Chambers Drive. According to Loveless, the Booneville Municipal Court had been situated at the Chambers Drive location "for some time prior to" issuance of the DUI citation. Because of these errors, Chambers contends that the DUI citation did not comply with Mississippi *732 Code Annotated section 63-9-21(3)(c) (Supp.2003), which provides, in relevant part, as follows:
Every traffic ticket shall show, among other necessary information, the name of the issuing officer, the name of the court in which the cause is to be heard, and the date and time such person is to appear to answer the charge. The ticket shall include information which will constitute a complaint charging the offense for which the ticket was issued, and when duly sworn to and filed with a court of competent jurisdiction, prosecution may proceed thereunder.
¶ 23. Referring to the information required by subsection (3)(c), our supreme court in Wheeler v. Stewart, 798 So.2d 386, 390(¶ 8) (Miss.2001) stated that "[a] traffic ticket that contains this information constitutes a `sworn affidavit' as referred to in Section 21-23-7(1) when the officer who issues the ticket has it properly attested and filed with the proper court." Because Loveless's DUI citation does not contain an a.m. or p.m. designation, he contends that it did not comply with the "time such person is to appear" requirement of section 63-9-21(3)(c). Relying on Wheeler and an opinion of the Mississippi Attorney General interpreting section 63-9-21(3)(c) in light of Wheeler,[11] Loveless argues that this omission, as well as the listing of the incorrect municipal court address, rendered the citation fatally defective.
¶ 24. The Mississippi Supreme Court has stated that, "[a]lthough a statute imposing criminal penalties must be strictly construed in favor of the accused, it should not be so strict as to override common sense or statutory purpose." Palmer v. City of Oxford, 860 So.2d 1203, 1211(¶ 23) (Miss.2003) (citing United States v. Brown, 333 U.S. 18, 25, 68 S.Ct. 376, 92 L.Ed. 442 (1948); State v. Burnham, 546 So.2d 690, 692 (Miss.1989)). Furthermore, "[s]trict construction means reasonable construction." Id. (citing State v. Martin, 495 So.2d 501, 502 (Miss.1986)). We hold that to deem the citation at issue defective based on the lack of an a.m. or p.m. designation would require this Court to construe section 63-9-21(3)(c) so strictly so "as to override common sense [and the] statutory purpose" of that provision.
¶ 25. Regarding the incorrect municipal court address listed on Loveless's DUI citation, we note that section 63-9-21(3)(c) does not require that the address of the municipal court be contained on the citation. While prudence suggests that correct information be provided in order to avoid prejudice caused by incorrect information, we note that Loveless does not allege, and the record does not reveal, that he suffered any such prejudice. Accordingly, neither the p.m. omission nor the incorrect municipal court address prevented the municipal and circuit courts from properly asserting jurisdiction over Loveless's DUI charge. We turn now to Loveless's contention that the affidavits charging him with unlawful possession of beer and unlawful possession of whiskey were defective.
¶ 26. The "Police Justice Affidavit" citing Loveless for "willfully and unlawfully" possessing beer in violation of "an order of the Board of Supervisors of Prentiss County, Mississippi . . . against the peace and dignity of the State of Mississippi" does not contain a reference to any Mississippi statute. In addition to not citing a Mississippi statute, the affidavit *733 charging Loveless with "willfully and unlawfully possess[ing] 750ml of Taaka vodka" does not reference any local ordinance or order that Loveless was charged with violating. Loveless cites Brown v. State, 241 Miss. 838, 133 So.2d 529 (1961) to support his argument that these affidavits were deficient for failing to cite section 67-3-13 of the Mississippi Code.[12]
¶ 27. In Brown, the supreme court held that the affidavit charging the defendant with unlawful possession of homemade beer was insufficient for failing to "allege that the possession was in violation of Chapter 279, Laws of 1958. . . ." Id. at 840, 133 So.2d at 530.[13] However, the supreme court subsequently held "[i]n Armstead v. State, 503 So.2d 281 (Miss.1987) . . . that all questions regarding the sufficiency of indictments are determinable by reference to Rule 2.05 [of the Uniform Criminal Rules of Circuit Court Practice] which articulated seven elements which are to be included in any indictment." Nguyen v. State, 761 So.2d 873, 875(¶ 7) (Miss.2000) (citing Armstead, 503 So.2d at 283). Rule 7.06 of the Uniform Circuit and County Court Rules, adopted effective May 1, 1995, contains the same seven elements as former Rule 2.05 and governs indictments and other criminal complaints such as the affidavits at issue in the case sub judice. See id. With respect to the specificity with which an indictment must describe the charged crime, Rule 7.06, in parts relevant to the alleged error, provides as follows:
The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation. Formal and technical words are not necessary in an indictment, if the offense can be substantially described without them. . . .
¶ 28. We note that the affidavit charging Loveless with unlawful possession of beer and the affidavit charging him with unlawful possession of whiskey both comply with the relevant portion of Rule 7.06 set forth above. Both affidavits plainly and concisely set forth the essential facts underlying the respective charges with sufficient clarity and definiteness such that Loveless was adequately notified of the "nature and cause of the accusation[s]" against him. Accordingly, the failure to reference section 67-3-13 of the Mississippi Code did not render these affidavits defective, and Loveless's argument to the contrary is without merit.
¶ 29. THE JUDGMENT OF THE PRENTISS COUNTY CIRCUIT COURT OF CONVICTION OF DRIVING UNDER THE INFLUENCE FIRST OFFENSE, CARELESS DRIVING, POSSESSION OF BEER IN A DRY COUNTY, AND UNLAWFUL POSSESSION OF WHISKEY, AND SENTENCE OF TWO DAYS IN JAIL WITH TWO DAYS SUSPENDED AND $1,550 IN FINES IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, ISHEE, *734 ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.
NOTES
[1] At the time he gave testimony at the trial in this matter, Officer Parker was working for the Prentiss County Sheriff's Department; however, he was working for the City when the events which gave rise to this action occurred.
[2] The record reflects that, prior to Loveless's objection, Officer Parker testified to his name, rank, that he was employed as a police officer in the City of Booneville on August 1, 2003, and that he had been employed as a police officer since 1998.
[3] The record reflects subsequent continuances from September 24, 2004, until March 11, 2005, due to the trial judge's unavailability, and from March 11, 2005, to June 22, 2005, pursuant to a motion by Loveless. Finally, upon motion by Loveless, trial was reset for June 20, 2005, and proceedings were had and concluded on that date.
[4] The trial judge expressed her opinion that, in light of defense counsel's involvement in the municipal proceedings, allowing Loveless the benefit of the remedial provisions outlined in Rule 9.04(I) was "overkill." Because this issue is not presented for our review, we do not express any opinion as to whether the City's initial response to Loveless's discovery request complied with Rule 9.04.
[5] We note that, despite the circuit court's unrequested grant of a continuance in this case, Rule 9.04(I)(2) requires the granting of a mistrial or continuance only upon a claim of "unfair surprise or undue prejudice" followed by a request for a continuance or mistrial by the defense. Loveless made no request for a continuance and, in fact, objected to the court's grant of a continuance.
[6] As pointed out in footnote three, above, at least part of the continuation in this case is attributable to Loveless.
[7] As alluded to above, Loveless was represented by the same counsel during the circuit court and municipal court proceedings. Accordingly, the City's representation that it would call only those witnesses that were called at the trial in municipal court clearly informed Loveless of the witnesses it intended to call at trial in circuit court.
[8] The record reflects that Loveless's letter requesting discovery prior to trial in circuit court was dated February 26, 2004, and the City's letter in response was dated March 2, 2004, and stamped "Received" on March 3, 2004.
[9] The circuit judge ruled that the prosecution would not be allowed to introduce the videotape showing Loveless's demeanor after the traffic stop, evidence which was introduced during the municipal court trial. Without this evidence, Officer Parker's testimony was the only evidence of Loveless's intoxication that the City planned to present.
[10] Because Loveless addresses this issue under a probable cause analysis rather than a reasonable suspicion analysis, without challenge by the City, we do the same. However, it should be noted that the lesser standard of reasonable suspicion applies in making investigatory traffic stops. See Floyd v. City of Crystal Springs, 749 So.2d 110, 114-15 (Miss. 1999) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)). The Mississippi Supreme Court has recognized that under reasonable circumstances an officer may stop a suspect "to resolve an ambiguous situation" with less knowledge than justifies arrest, i.e. on less than probable cause. Floyd v. City of Crystal Springs, 749 So.2d 110, 114(¶ 16) (Miss.1999) (citing Singletary v. State, 318 So.2d 873, 876 (Miss.1975)). Under this lesser standard, a suspect may be stopped if there is "reasonable suspicion, grounded in specific and articulable facts," taken in the totality of the circumstances, that the detaining officer had a "particularized and objective basis for suspecting the particular person stopped of criminal activity," even if there is no probable cause to arrest the suspect. Id. (quoting U.S. v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).
[11] The attorney general opinion cited by Loveless concluded that a citation giving "notice to the defendant to either pay the ticket [within thirty days] or contact the court does not satisfy the requirements of Section 63-[9]-21(3)(c)." Municipal Traffic Tickets, XXXXXXXXX Op. Att'y Gen. No.XXXX-XXXX (2002).
[12] Subsection one of this statute makes it unlawful to possess beer in a county which has elected to "prohibit the transportation, storage, sale, distribution, receipt and/or manufacture of wine and beer. . . ." Miss. Code Ann. § 67-3-13(1) (Rev.2005).
[13] Chapter 279, Laws of 1958 is currently codified at section 67-3-13 of the Mississippi Code. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591267/ | State of Wisconsin, Plaintiff-Respondent,
v.
Cannon Cornell Mack, Defendant-Appellant.
No. 03-2147-CR.
Court of Appeals of Wisconsin.
Opinion Filed: July 20, 2004.
Before Wedemeyer, P.J., Fine and Curley, JJ.
¶1 PER CURIAM.
Cannon Cornell Mack appeals the order denying his petition seeking conditional release from his WIS. STAT. § 971.17 commitment. See § 971.17(1) (1987-88).[1] Mack was committed to institutional care after he was found not guilty of first-degree murder by reason of mental disease or defect. Mack submits that the trial court erred in denying his petition because both expert witnessesthe only witnesses to testifyrecommended conditional release and, as a consequence, the State failed to prove that he presents a danger to himself or others. Because the trial court was free to disregard the expert witnesses' opinions, and evidence in the record supports the trial court's finding, we affirm.
I. BACKGROUND.
¶2 Mack was found not guilty of arson by reason of mental disease or defect in 1982. He was conditionally released from institutional care about two years later. Within months, Mack had stopped taking his medication, was abusing drugs and alcohol, and was back in the criminal justice system charged with firstdegree murder after he stabbed a woman in the head when she walked into a laundromat. Mack was again found not guilty by reason of mental disease or defect and was committed to the Winnebago Mental Health Institute in October 1987.
¶3 Mack has filed numerous petitions over the years seeking conditional release. With respect to this appeal, on June 12, 2002, Mack filed a petition seeking conditional release. The trial court appointed two doctors to examine Mack: Dr. John Pankiewicz, on Mack's behalf, and Dr. Kenneth H. Smail, on the State's behalf. After Mack waived his right to a jury trial, the trial court held a hearing on his petition.[2] Both doctors submitted reports and testified. Independently, they both concluded that Mack could be released from the institution, but only under strict conditions that would reduce the risk he posed to the community. These conditions essentially included: (1) Mack residing in a well-staffed group home; (2) staff visually observing him taking his medication; (3) monitoring for alcohol and illicit drug use; (4) monthly appointments with a psychiatrist; (5) supervision by a probation agent trained to work with the mental health population; and (6) Mack attending school or work. The trial court denied Mack's petition and he appeals.
II. ANALYSIS.
¶4 Because Mack was adjudicated not guilty by reason of mental disease or defect before the change in the law effective January 1, 1991, Mack is subject to the 1987 version of WIS. STAT. § 971.17, as affected by 1989 Wis. Act 31. The standard for release in § 971.17(2) provides, in relevant part:
If the court is satisfied that the defendant may be safely discharged or released without danger to himself or herself or to others, it shall order the discharge of the defendant or order his or her release on such conditions as the court determines to be necessary. If it is not so satisfied, it shall recommit him or her to the custody of the department.
Thus, the sole purpose of the hearing on the petition for conditional release is to determine whether an insanity acquittee "may be safely discharged or released without danger to himself ... or others." Id. At a recommitment hearing, the State bears the burden of proving that "the defendant is presently of danger to himself or others." State v. Gebarski, 90 Wis. 2d 754, 757, 280 N.W.2d 672 (1979). At such a hearing, "dangerousness, for recommitment, must be proven by clear and convincing evidence[.]" State v. Randall, 192 Wis. 2d 800, 822, 532 N.W.2d 94 (1995) (citation omitted). In State v. Randall, 222 Wis. 2d 53, 586 N.W.2d 318 (Ct. App. 1998), we stated: "We review the evidence supporting a jury verdict finding dangerousness in the light most favorable to the verdict, and we will affirm if there is any credible evidence, or reasonable inference therefrom, upon which the jury could have based its decision." Id. at 60. Although there was a bench trial in this case, we conclude that the same standard of review applies. See, e.g., State v. Kienitz, 221 Wis. 2d 275, 302, 585 N.W.2d 609 (Ct. App. 1998) (concerning a WIS. STAT. ch. 980 (1995-96) commitment of a sexually violent person, and stating: "We do not see any reason to apply a different standard of review to a sufficiency of the evidence challenge simply because the court, rather than a jury, finds the facts and applies the law (as interpreted by the court in both situations) to those facts.").
¶5 Mack submits that the trial court erred in its finding that he continued to pose a danger to himself and others. He notes that while the trial court was free to reject the two doctors' opinions, by doing so, the trial court "could not legally adopt the opposite conclusion unless there was evidence to support it." Mack contends no evidence was produced to support a finding that Mack is presently dangerous. He argues that the trial court improperly "rel[ied] solely upon [his] prior conduct," and that the other reasons given by the trial court for finding Mack dangerous were only "passing references by the court." We disagree with both contentions.
¶6 With regard to Mack's contention that the trial court improperly relied on Mack's past conduct in reaching its decision, he has correctly noted that a trial court cannot rely solely on past behavior in determining dangerousness. "Although past conduct may be a significant indicator of future behavior, evidence of dangerousness should not rely solely on the acquittee's past conduct." Randall, 192 Wis. 2d at 838. However, the trial court did not find Mack dangerous simply because of his past conduct. Further, what Mack terms "passing references" are actually valid reasons for the trial court's finding of dangerousness.
¶7 The evidence presented to the court supports the trial court's finding. The doctors opined that Mack continued to suffer from paranoid schizophrenia, although his symptoms are now being controlled by medication. As noted, however, the murder occurred when Mack stopped taking his medication. Given Mack's history, he poses a significant risk to others if he discontinues his medication. In addition, the submitted medical reports note that Mack has both an underlying substance abuse problem as well as a personality disorder. This particular personality disorder was described by one of the expert witnesses as "an enduring set of character traits that cause an individual difficulty in social and occupational functioning." Clearly, this disorder will likely impede Mack's integration into society if he is released. Further, as to his substance abuse problem, it is unknown at this time whether Mack will consume alcoholic beverages when he is released and is free to purchase alcohol, as he has been in a restricted and controlled setting for almost seventeen years.
¶8 Additionally, evidence was presented that while Mack has dramatically improved during the years of his commitment, he has not been a model inmate. The staff reports indicate that he has difficulty following multiplestep tasks, is defensive on occasion, and his initial response to staff requests "is a little oppositional." These characteristics may prevent Mack from taking directions from others who are supervising him. As a result, this behavior, too, heightens the risk that Mack will pose to others when released.
¶9 Mack's primary argument in furtherance of his petition was that he has had unescorted trips off the grounds of the institution to attend an anger management program. He submits that this is clear proof that he is no longer dangerous. However, as noted by the trial court, Mack's off-grounds trips were for brief periods of time and he had only been allowed this privilege for approximately six to nine months as of the time of the hearing. The trial court found this fact pivotal in its decision. The trial court felt this was too short a time period to safely conclude Mack was not dangerous when unsupervised.
Where the difficulty comes in, in the Court's opinion, is whether he may be safely released to the community. That's not a medical decision. That's a legal decision. That's a decision that the Court has to make. And based on his past experience, the fact that he's had this unlimited access for only the last nine months, ... I'm of the opinion that although he is also medically doing what is expected of him, and what should be done, nevertheless there still is a substantial danger in my opinion, considering the seriousness of these crimes, and the method and manner in which the crime was committed this last time, this homicide, and his experience since then.
We agree. Given the serious nature of Mack's crime that resulted in his commitment, coupled with his other psychological and social problems, we believe the trial court properly concluded that Mack's unsupervised travels have occurred for too short a period to safely conclude that he poses no risk to the community. Thus, we are satisfied the State presented clear and convincing evidence that Mack is presently dangerous. Accordingly, we affirm.
By the Court. Order affirmed.
NOTES
[1] All references to the Wisconsin Statutes are to the 1987-88 version unless otherwise noted.
[2] The 1987-88 version of WIS. STAT. § 971.17 allowed for a jury to decide the issue of whether the defendant should be re-committed or granted release. See generally State ex rel. Gebarski v. Circuit Court for Milwaukee County, 80 Wis. 2d 489, 259 N.W.2d 531 (1977). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591112/ | 972 So.2d 184 (2008)
McGEE
v.
STATE.
No. 2D07-2183.
District Court of Appeal of Florida, Second District.
January 4, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591124/ | 14 So.3d 1228 (2009)
Minerva MIESES, Appellant,
v.
APPLEBEE'S and Chubb Group of Insurance Companies, Appellees.
No. 1D08-4690.
District Court of Appeal of Florida, First District.
June 30, 2009.
David M. Cohen, Miami, and Bill McCabe, Longwood, for Appellant.
Beth J. Leahy of Walton Lantaff Schroeder & Carson, LLP, Fort Lauderdale, for Appellees.
PER CURIAM.
Claimant appeals, and the employer/carrier (E/C) cross-appeals, the Judge of Compensation Claims' (JCC) order on temporary benefits, penalties, and interest. *1229 Claimant's argument has merit, and the E/C's argument has merit in part.
Claimant filed multiple petitions for benefits (PFBs). The relevant PFBs for this opinion were filed May 4, 2004; May 5, 2004; and August 19, 2004. Respectively, these PFBs sought temporary benefits, penalties, and interest, from April 2, 2004, and continuing; April 1, 2004, and continuing; and September 18, 2003 (the date of accident), and continuing. On June 19, 2006, Claimant filed a single piece of paper "dismissing] all pending Petitions for Benefits." Thereafter, Claimant filed three more PFBs, two of which requested temporary benefits, penalties, and interest, from the date of accident and continuing.
The JCC ruled on penalties and interest for the following time periods, as follows: Awarded penalties and interest for April 2 through 20, 2004; awarded temporary benefits and penalties and interest for May 1, 2004; denied penalties and interest for August 13 through 26, 2004; denied penalties and interest for July 27 through November 16, 2005; and awarded penalties and interest for March 31 through July 14, 2006.
On appeal, Claimant argues penalties and interest should have been granted for July 27 through November 16, 2005. Her argument has merit.
The record shows Claimant was eligible for temporary benefits from July 27 through November 16, 2005: No payments were made during that time; Claimant was not MMI during that time; and Claimant could work only sedentary jobs during that time. See Xerographics & Claims Ctr. v. Bender, 558 So.2d 514, 515 (Fla. 1st DCA 1990). Moreover, during that time period, her entitlement to temporary benefits was not barred by the 104-week limit. § 440.15(2)(a), (4)(b), Fla. Stat. (2003). As of July 27, 2005, Claimant had not yet received 104 weeks of temporary benefits (and payment of such benefits through November 16, 2005, would not have exhausted the 104-week "bank"). The fact that Claimant was never awarded temporary benefits for that time does not bar penalties and interest, because temporary benefits are payable without an award, and were due regardless of any ruling. Consequently, late payment entitles Claimant to penalties and interest. See § 440.20(6), (8), Fla. Stat. (2003).
On cross-appeal, the E/C argues the prior voluntary dismissals barred the awards.[*] The E/C's argument has merit in part.
"A claim or petition may be dismissed by the claimant or petitioner without an order by filing a notice of voluntary dismissal.... [A] second notice of voluntary dismissal shall operate as an adjudication of denial of any claim or [PFB] previously the subject of a voluntary dismissal." Fla. Admin. Code R. 60Q-6.116(2). The JCC declined to apply this "two-dismissal" rule, finding, "only a single notice of voluntary dismissal was served on June 19, 2006."
The JCC's reading of this rule is overly literal. The rule provides that "a [single] claim or petition" may be dismissed without prejudice. Logic suggests the second dismissal of that claim or petition would operate as an adjudication of denial. No rule precludes dismissing multiple claims by filing a single piece of paper; thus, Claimant's filing contains multiple notices of voluntary dismissal. Consequently, the JCC erred in concluding, from the fact that only one piece of *1230 paper was filed to dismiss multiple claims, that rule 60Q-6.116(2) could not apply.
The two-dismissal rule bars the awards for the time periods of April 2, 2004, through April 20, 2004, and May 1, 2004. The dismissed PFBs of May 4, May 5, and August 19, 2004, included claims for temporary benefits, penalties, and interest, for those periods. Under the rule, Claimant's second dismissal of these claims operated as an adjudication of denial of these claims. Consequently, the JCC erred in granting an award as to these time periods.
In contrast, the two-dismissal rule does not bar awards of penalties and interest for July 27 through November 16, 2005, and March 31 through July 14, 2006. Claimant's voluntary dismissals were of PFBs filed before these time periods. It is impossible for PFBs that predated these time periods to have included claims for penalties and interest based on late payment of benefits due during these time periods, because Claimant could not have known the payments would be late. In other words, Claimant cannot seek penalties and interest for future, and, therefore, speculative, late payments.
Consequently, we reverse the awards pertaining to April 2 through 20, 2004, and May 1, 2004; we reverse the denial of penalties and interest for July 27 through November 16, 2005; and we affirm the award of penalties and interest for March 31 through July 14, 2006. All other aspects of the order on review are affirmed.
AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.
DAVIS, BROWNING and THOMAS, JJ., concur.
NOTES
[*] The denial of penalties and interest due for late payments between August 13 and 26, 2004, is not challenged by either party. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591129/ | 14 So.3d 732 (2008)
Daniel Ray WEATHERS, Appellant,
v.
METROPOLITAN LIFE INSURANCE COMPANY, Appellee.
No. 2007-CA-01180-COA.
Court of Appeals of Mississippi.
July 22, 2008.
Rehearing Denied October 28, 2008.
*733 John A. Owens, Dudley H. Carter, Columbus, Susie Taylor Carver, attorneys for appellant.
Sheryl Bey, Jackson, attorney for appellee.
Before KING, C.J., GRIFFIS and CARLTON, JJ.
KING, C.J., for the Court.
¶ 1. Daniel Ray Weathers (Weathers) filed suit against Metropolitan Life Insurance Company (MetLife) in the Circuit Court of Lowndes County, alleging fraud, breach of contract, and negligent supervision. The circuit court granted MetLife's motion for summary judgment. Aggrieved, Weathers appeals, raising the following issue:
Whether the trial court erred by granting MetLife's motion for summary judgment, finding no genuine issue of material fact, where Weathers presented evidence that:
(1) MetLife breached its contract with Weathers;
(2) MetLife defrauded Weathers and fraudulently concealed the alleged fraud;
(3) MetLife prevented Weathers from discovering his claim, thereby tolling the statute of limitations; and
(4) MetLife negligently trained and supervised its agent, Jim McKie.
¶ 2. Finding Weathers's claim time-barred, we affirm the circuit court's grant of summary judgment in favor of MetLife.
FACTS AND PROCEDURAL HISTORY
¶ 3. Weathers purchased a life insurance policy from McKie, then a MetLife insurance agent. McKie gave Weathers a presentation on how to obtain a $500,000 life insurance policy that would accrue cash value over time. McKie explained that Weathers could leave the dividends in the policy, take the cash out, or use the dividends to pay future premiums on the policy. The "Stop and Go" illustration demonstrated how Weathers would make premium payments for only ten years; after which, the policy would become self-sustaining. Weathers applied for the insurance policy, and MetLife delivered a policy to him on February 1, 1994, for $376,550.
¶ 4. After receiving the policy, Weathers gave it a cursory read and had a few concerns with its provisions. One, the policy was entitled "Life Paid Up at 98"; and two, the policy stated that Weathers had to make premium payments for fifty-six years. Weathers then contacted McKie and inquired as to what those terms meant and if his payments would still cease after ten years. McKie explained to Weathers that he could pay the policy until he turned ninety-eight years old, and the policy would simply build more value; or Weathers could stop paying the premiums out of pocket after ten years, as demonstrated by the illustration, and use the annual dividends to pay the premiums thereafter.
¶ 5. In 1999, Weathers received a notice of a class-action lawsuit against MetLife regarding the "vanishing premiums" life insurance policies. Again, Weathers called McKie for clarification. McKie advised Weathers that the policy might not perform as promised and that he should contact MetLife. Weathers alleged that he contacted MetLife on multiple occasions; however, MetLife failed to provide him a *734 clear explanation regarding the problems with his insurance policy. Upon the advice of his attorney, Weathers opted out of the class-action lawsuit on October 19, 1999, and filed a lawsuit against MetLife in 2001 in the Circuit Court of Lowndes County, asserting claims of fraud, breach of contract, and negligent supervision.
¶ 6. MetLife filed a motion for summary judgment on February 13, 2007, and oral argument on the motion was heard on May 25, 2007. The trial court found that there was no genuine issue of material fact and granted summary judgment in favor of MetLife on June 15, 2007. The trial court reasoned the following: (1) Weathers failed to prove fraudulent concealment, which would have tolled the three-year statute of limitations; and (2) Weathers was under an obligation to read the contract prior to signing it, and he will not be heard to complain of an oral misrepresentation that would have been corrected by reading the contract.
¶ 7. Aggrieved, Weathers timely filed this appeal.
STANDARD OF REVIEW
¶ 8. An appeal from the grant of a motion for summary judgment is reviewed de novo. Allen v. Mac Tools, Inc., 671 So.2d 636, 640 (Miss.1996) (citing Pace v. Fin. Sec. Life of Miss., 608 So.2d 1135, 1138 (Miss.1992)). "When reviewing an award of summary judgment, this Court views all evidence in the light most favorable to the non-movant, including `admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.' and will presume that all evidence in the non-movant's favor is true." Id. (quoting Downs v. Choo, 656 So.2d 84, 85 (Miss.1995)). The trial court's grant of summary judgment will stand if there is no genuine issue as to any material fact. Id.
ANALYSIS
¶ 9. As a threshold issue, this Court must first determine whether Weathers's claim is time-barred. Weathers argues that the statute of limitations was tolled until 1999 when he received the class-action notice because, in 1994, MetLife fraudulently concealed the misrepresentations when McKie reassured Weathers that he did not have to pay premiums out of pocket after ten years. Conversely, MetLife argues that Weathers's claim is time-barred because the statute of limitations accrued when the sale of the policy was complete on February 1, 1994.
¶ 10. "This Court uses a de novo standard of review when passing on questions of law including statute of limitations issues." Stephens v. Equitable Life Assurance Soc'y of the U.S., 850 So.2d 78, 82(10) (Miss.2003) (quoting ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 45(10) (Miss.1999)). Mississippi Code Annotated section 15-1-49 (Rev.2003) provides a three-year statute of limitations for claims of fraud. See also Warren v. Horace Mann Life Ins. Co., 949 So.2d 770, 772(8) (Miss.Ct.App.2006). The statute of limitations accrues upon the completion of the sale of the insurance policy. See Stephens, 850 So.2d at 81(9). However, the statute of limitations can be tolled for claims of fraudulent concealment. Id. at 83 (17-18). Mississippi Code Annotated section 15-1-67 (Rev.2003) provides:
If a person liable to any personal action shall fraudulently conceal the cause of action from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence might have been, first known or discovered.
A plaintiff must show two things to prove fraudulent concealment: (1) an affirmative *735 act by the defendant that prevented discovery of the claim, and (2) the plaintiff exercised due diligence to discover the defendant's concealed fraud. See Warren, 949 So.2d at 772-73(10) (citing Stephens, 850 So.2d at 83-84(18)).
¶ 11. MetLife delivered Weathers's life insurance policy on February 1, 1994. Therefore, Weathers had three years from February 1, 1994, to file the lawsuit unless he can prove that MetLife fraudulently concealed the cause of action, thereby tolling the statute of limitations. In an attempt to prove fraudulent concealment, Weathers contends that MetLife committed an affirmative act that prevented his discovery of the claim when McKie reassured him that he did not have to pay premiums out of pocket after ten years. Further, Weathers argues that he was unaware that the illustrations and oral representations were false until he received the class-action notice in 1999. At this point, Weathers claims that he exercised due diligence to determine the truth and filed his lawsuit in 2001, within the three-year statute of limitations. We disagree and find that Weathers failed to exercise due diligence.
¶ 12. In his deposition, Weathers admits that he did not read the entire policy; but undeniably, Weathers read enough of the policy to be alarmed and voice concern over some of its provisions. "[A] person is under an obligation to read a contract before signing it, and will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract." Anderson v. Equitable Life Assurance Soc'y of the U.S., 248 F.Supp.2d 584, 590 (S.D.Miss.2003) (quoting Godfrey, Bassett & Kuykendall Architects, Ltd. v. Huntington Lumber & Supply Co., Inc., 584 So.2d 1254, 1257 (Miss.1991)). Further, "knowledge of the contents of a contract are imputed to the parties thereto, even where they have not read the contract." Id. (citing Cherry v. Anthony, Gibbs, Sage, 501 So.2d 416, 419 (Miss. 1987)). Weathers had a duty to read the insurance policy, and he is therefore imputed with knowledge of its contents.
¶ 13. Weathers stated that he realized the following upon a cursory reading of the contract:
Well, it scared me on the front of the policy where it says, "Life paid up at 98." So, we had I wanted to make sure that this was going to be paid in ten years. And he reassured me that this was going to be after I paid this for ten years,....
Once "a person has knowledge of such facts as to excite the attention of a reasonably prudent man and to put him upon guard and thus to incite him to inquiry, he is chargeable with notice, equivalent in law to knowledge, of all those further relevant facts which such inquiry, if pursued with reasonable diligence, would have disclosed." First Nat'l Bank of Laurel v. Johnson, 177 Miss. 634, 643, 171 So. 11, 14 (1936). The quoted statement taken from Weathers's deposition undoubtedly shows that Weathers was put on notice that the policy's language was contrary to the illustrations and oral representations that he had received from McKie. As such, we find that Weathers failed to exercise due diligence to discover his cause of action.
CONCLUSION
¶ 14. We find that the trial court did not err in granting MetLife's motion for summary judgment because Weathers's claim was time-barred. The statute of limitations began to run on February 1, 1994, after Weathers read his insurance policy and expressed concern over its provisions. At that time, Weathers was on notice that the policy's language was contrary to the *736 information he received from McKie. Weathers unreasonably relied upon McKie's reassurance and failed to exercise due diligence to address his concerns. Therefore, the statute of limitations was not tolled, and Weathers's claim was time-barred when he filed suit against MetLife in 2001. Since this issue is dispositive, we do not address Weathers's remaining assignments of error.
¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591140/ | 686 N.W.2d 235 (2004)
STATE v. BUCHANAN.
No. 03-0230.
Court of Appeals of Iowa.
May 14, 2004.
Decisions without published opinions. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591196/ | 686 N.W.2d 360 (2004)
268 Neb. 620
In re APPLICATIONS T-851 and T-852.
Nebraska Public Power District, appellant,
v.
Department of Natural Resources, appellee.
No. S-03-207.
Supreme Court of Nebraska.
September 10, 2004.
*362 Stephen D. Mossman, of Mattson, Ricketts, Davies, Stewart & Calkins, Lincoln, for appellant.
Jon Bruning, Attorney General, Jason W. Hayes, and Justin D. Lavene for appellee.
HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.
PER CURIAM.
I. NATURE OF CASE
The Department of Natural Resources (the DNR) entered an order affirming an earlier decision of the DNR which canceled 0.65 cubic feet per second (cfs) of incidental underground water storage held by the Nebraska Public Power District (NPPD). NPPD appealed. We moved this case to our docket pursuant to our authority to regulate the caseloads between this court and the Nebraska Court of Appeals. See Neb.Rev.Stat. § 24-1106(3) (Reissue 1995).
II. FACTS
On December 20, 1985, NPPD filed application U-5 for the recognition of incidental underground water storage. An order granting certain water rights was entered by the Department of Water Resources (now the DNR) on November 10, 1987 (November 1987 order). NPPD filed a petition for rehearing, which was granted. Following rehearing, an order dated May 26, 1988 (May 1988 order), was issued, superseding the November 1987 order. For purposes of this case, the May 1988 order concerned two water appropriations: A-2039 and A-2726. The May 1988 order granted NPPD the right to divert a maximum of 331.74 cfs for direct irrigation service and an additional 129.26 cfs of incidental underground water storage and included the following language:
*363 In instances where less than 23,222 acres were served directly, total direct flow diversions must be reduced by the ratio specified in § 46-231. It follows that to continue as incidental (contrasted to intentional) underground storage, that portion of the total natural flow diversion which would be dedicated as incidental underground storage should be reduced proportionately.
....
... When the amount of water dedicated to direct [irrigation] service is reduced because of the number of acres served (§ 46-231), the amount of water dedicated for incidental underground storage shall be reduced proportionately.
On February 28, 2001, NPPD filed applications T-851 and T-852. It is these applications which are at issue in this appeal. T-851 and T-852 requested a transfer of the location of diversion and use of water for portions of A-2039 and A-2726. In NPPD's view, this transfer was necessary because Terry Crawford, one of NPPD's customers, had informed NPPD that he intended to use an existing ground water well to irrigate by center pivot rather than using NPPD's surface water under the Dawson County Canal. In order to avoid losing the water rights on Crawford's land due to nonuse, NPPD located land on the Gothenburg Canal and applied for a transfer of the surface water rights from Crawford's land to the new land. T-851 and T-852 requested the transfer of 1.67 cfs of water, representing Crawford's 117 acres, previously flowing from the Dawson County Canal to the Gothenburg Canal.
In an order dated June 22, 2001 (June 2001 order), the DNR approved T-851 and T-852 for the transfer of 117 irrigated acres from the Dawson County Canal to the Gothenburg Canal. However, with respect to A-2039, 0.65 cfs of incidental underground water storage was canceled. NPPD petitioned the DNR for rehearing. Following rehearing, an order was issued on January 29, 2003 (January 2003 order), again ordering the cancellation of 0.65 cfs of incidental underground water storage due to the transfer of 117 acres. In support of the cancellation, the DNR cited language from the May 1988 order which imposed as a condition for some transfers a proportional reduction in water rights. The May 1988 order stated that "[w]hen the amount of water dedicated to direct [irrigation] service is reduced because of the number of acres served ... the amount of water dedicated for incidental underground storage shall be reduced proportionately."
III. ASSIGNMENTS OF ERROR
NPPD assigns, rephrased and renumbered, that the DNR erred in (1) canceling 0.65 cfs of incidental underground water storage rights granted under U-5 in its June 2001 and January 2003 orders, because such cancellation was inconsistent with Nebraska's Constitution, statutes, and case law, as well as with the methodology used in the November 1987 and May 1988 orders; (2) finding that NPPD was attempting to collaterally attack conditions placed in the May 1988 order approving U-5; (3) not granting additional cfs for incidental underground water storage rights when 117 acres were transferred from the Dawson County Canal to the Gothenburg Canal; (4) not presenting any evidence to support its June 2001 and January 2003 orders; and (5) relying on adjudications and relinquishments not in the record when issuing its January 2003 order.
IV. STANDARD OF REVIEW
In an appeal from the DNR, an appellate court's review of the director's *364 factual determinations is limited to deciding whether such determinations are supported by competent and relevant evidence and are not arbitrary, capricious, or unreasonable; however, on questions of law, which include the meaning of statutes, a reviewing court is obligated to reach its conclusions independent of the legal determinations made by the director. In re Water Appropriation A-4924, 267 Neb. 430, 674 N.W.2d 788 (2004).
V. ANALYSIS
1. CANCELLATION OF 0.65 CFS OF WATER STORAGE
(a) Collateral Attack of May 1988 Order
NPPD first argues that the cancellation of 0.65 cfs of incidental underground water storage rights is not consistent with article XV of the Nebraska Constitution or with the purposes behind Neb.Rev.Stat. §§ 46-295 to 46-2,106 (Reissue 1998 & Cum. Supp.2002).
When a judgment is attacked in a manner other than by a proceeding in the original action to have it vacated, reversed, or modified, or by a proceeding in equity to prevent its enforcement, the attack is a collateral attack. Bartlett v. Dawes Cty. Bd. of Equal., 259 Neb. 954, 613 N.W.2d 810 (2000).
NPPD contends that §§ 46-295 to 46-2,106 were intended to protect incidental underground water storage rights, regardless of any change in actual surface irrigation. In essence, NPPD is arguing that the purposes behind the statutes prohibited the DNR from imposing the proportional reduction condition, since it interfered with NPPD's incidental underground water storage rights. However, by arguing that the DNR lacked the authority to impose the proportional reduction condition in the May 1988 order, NPPD is attempting to vacate or reverse that portion of the order. Such an argument is a collateral attack.
Administrative agency decisions determining water rights pursuant to statutory authority involve the exercise of quasi-judicial powers, and when no appeal is taken from such a decision, it becomes a final and binding adjudication. In re Appropriations D-887 and A-768, 240 Neb. 337, 482 N.W.2d 11 (1992). Judgments rendered by administrative agencies acting in a quasi-judicial capacity are not subject to collateral attack if the agency had jurisdiction over the parties and the subject matter. Id.
NPPD does not contend that the DNR lacked jurisdiction. Moreover, in the May 1988 order, the DNR determined NPPD's surface and underground water rights, a quasi-judicial function. No appeal was taken from the May 1988 order, and it became a final and binding adjudication. The DNR did not err insofar as it concluded that NPPD was attempting to collaterally attack the May 1988 order with respect to this argument. As a result, this court need not consider whether the condition imposing a proportional reduction included in the May 1988 order violated article XV of the Nebraska Constitution or was inconsistent with the purposes behind §§ 46-295 to 46-2,106.
NPPD also argues that the cancellation of its underground water storage rights was contrary to In re Application U-2, 226 Neb. 594, 413 N.W.2d 290 (1987), and the methodology used in the November 1987 and May 1988 orders. As we understand its argument, NPPD is not contending that In re Application U-2 or these orders prevented the DNR from imposing the proportional reduction condition, but, instead, that In re Application *365 U-2 and the orders show that the DNR is improperly applying the condition.
Unlike its argument that the DNR lacked the authority to impose the reduction in the first place, NPPD's argument that the DNR improperly applied the condition is not a collateral attack. NPPD is not arguing that the condition should be reversed or vacated, but, instead, is arguing that the condition should be properly applied. Thus, we may consider whether the proportional reduction condition was properly applied in this case under In re Application U-2 and the methodology of the original orders.
(b) In re Application U-2
NPPD argues that the DNR's cancellation of 0.65 cfs of incidental underground water storage is inconsistent with this court's interpretation of the term "service" in In re Application U-2, supra. Using the definition of service in In re Application U-2, NPPD argues that seepage from the Dawson County Canal recharged the ground water irrigation wells on the 117 acres which NPPD had transferred from the canal, so those acres should still be considered as part of NPPD's service.
NPPD argues that the question posed is the meaning of the term "service." We disagree, and believe that the question is rather the meaning of "direct irrigation service," the term used in the May 1988 order, which grants NPPD its water rights as follows:
With some 23,222 acres found remaining in effect under the various natural flow appropriations, Dawson County Canal may divert a combined maximum 331.74 cfs for direct irrigation service.
In recent years the State has limited natural flow diversions to 461.00 cfs. Allowing maximum natural flow diversions to continue at 461.00 cfs would, by implication, necessitate granting [the difference of] 129.26 cfs for incidental underground storage....
There is no dispute as to how the original grant of water rights was calculated in both the November 1987 and May 1988 orders. Neb.Rev.Stat. § 46-231 (Cum. Supp.2002) sets forth the proper ratio to apply: "An allotment from the natural flow of streams for irrigation shall not exceed one cubic foot per second of time for each seventy acres of land.... Such limitations do not apply to storage waters...." By applying this ratio to the total of 23,222 acres of land, NPPD was entitled to 331.74 cfs. This is the amount which NPPD was granted, with the DNR specifically noting that the grant was "for direct irrigation service."
Section 46-231 expressly provides that the ratio is for "allotment[s] from the natural flow of streams." By implication, then, "direct irrigation service" means irrigation from the natural flow of streams. We conclude also that the natural flow of streams must equate to surface water irrigation, but not underground water storage. This conclusion is reinforced when we consider that incidental underground water storage, the very water right which NPPD contends is part of their direct irrigation service, was granted to NPPD separately from its direct irrigation service in the May 1988 order, and the limitations in § 46-231 specifically exclude storage waters.
NPPD argues that this court must rely on In re Application U-2, 226 Neb. 594, 413 N.W.2d 290 (1987), to define the term "service." We disagree. Reference to In re Application U-2 is not necessary, since a plain reading of the May 1988 order indicates a meaning for the term "direct irrigation service." Furthermore, that case defines the term "service," but does not purport to define "direct irrigation service." *366 NPPD's contention that the DNR's cancellation of 0.65 cfs of incidental underground water storage was inconsistent with In re Application U-2 is without merit.
(c) Methodology of Initial Orders
NPPD also argues that canceling 0.65 cfs of incidental underground water storage was inconsistent with the methodology used in the November 1987 and May 1988 orders. In order to understand NPPD's argument, it is necessary to outline the factual background of the applicable orders.
In the November 1987 order, the DNR used the 70-to-1 ratio outlined in § 46-231, and the DNR concluded that the water appropriations served 22,937 acres. The DNR accordingly allotted 327.66 cfs for direct irrigation service and 133.34 cfs as incidental underground water storage for a total of 461 cfs, per the historical natural flow diversion rate.
NPPD requested and was granted a rehearing as to the November 1987 order, and in May 1988, a new order was issued. In the second order, the DNR concluded that it had, in the earlier order, improperly canceled 285 acres due to nonuse. As a result, NPPD's grant was recalculated in the same manner that the November 1987 order was originally calculated. Instead of 22,937 acres, the DNR concluded that 23,222 acres were served directly, for an allotment of 331.74 cfs of direct irrigation service and an additional 129.26 cfs of incidental underground water storage.
Though the number of acres served and the grant of water rights differed, both the November 1987 and May 1988 orders contained the same proportional reduction. The condition in the May 1988 order provided that
[i]n instances where less than 23,222 acres were served directly, total direct flow diversions must be reduced by the ratio specified in § 46-231. It follows that to continue as incidental (contrasted to intentional) underground storage, that portion of the total natural flow diversion which would be dedicated as incidental underground storage should be reduced proportionately.
....
... When the amount of water dedicated to direct [irrigation] service is reduced because of the number of acres served (§ 46-231), the amount of water dedicated for incidental underground storage shall be reduced proportionately.
It is this language which NPPD argues has been improperly applied.
This condition provided the methodology to be applied in the event of a reduction in direct irrigation service. The condition required first that "[i]n instances where less than 23,222 acres [are] served directly, total direct flow diversions must be reduced by the [70-to-1] ratio specified in § 46-231." Under the May 1988 order, 23,222 acres were served directly in the U-5 area. Upon NPPD's request to transfer 117 acres out of the U-5 area, only 23,105 acres remained. An application of the ratio from § 46-231 left NPPD with 330.07 cfs of direct irrigation service, a reduction of 1.67 cfs.
The condition continued, stating that "[i]t follows that to continue as incidental... underground storage, that portion of the total natural flow diversion which would be dedicated as incidental underground storage should be reduced proportionately." As noted, NPPD's direct irrigation service of 331.74 cfs was reduced by 1.67 cfs, or 0.5 percent. The proportionate reduction is determined by multiplying that same 0.5 percent by the 129.26 cfs of incidental underground water storage. *367 That calculation equates to a 0.65 cfs reduction.
NPPD, however, argues that since an increase in the number of acres served from the November 1987 to the May 1988 order resulted in an increase in its direct irrigation service and an equal decrease in its incidental underground water storage, the current decrease of 117 acres served indicates that NPPD's incidental underground water storage should have been increased, even as a portion of its direct irrigation service was transferred out of the Dawson County Canal. NPPD claims that 23,105 acres are now being served and that under § 46-231, NPPD is entitled to an allotment of 330.07 cfs of direct irrigation service and 130.93 cfs of incidental underground water storage. NPPD argues that instead of canceling 0.65 cfs of incidental underground water storage, the DNR should have transferred 1.67 cfs of its diversion from the Dawson County Canal as it did, but also should have increased NPPD's incidental underground water storage by that same 1.67 cfs.
We acknowledge that NPPD is correct in its assertion that a comparison of the November 1987 and May 1988 orders shows that an increase in the number of acres served resulted in an increase in direct irrigation service and an equal decrease in incidental underground water storage. However, the DNR was not applying the proportional reduction condition in the May 1988 order on rehearing after the November 1987 order. The DNR simply recalculated NPPD's water rights in the May 1988 order because the DNR had improperly canceled 285 acres of land for nonuse in its 1987 order. Upon rehearing and rectification of its error, the DNR was required to recalculate NPPD's affected water rights to effect the additional 285 acres in direct irrigation service.
The proportional reduction condition was included in the May 1988 order as the formula to employ in calculating incidental underground water storage when the number of acres served directly was reduced. To find that a decrease in direct irrigation service would lead to an equal increase in incidental underground water storage would completely ignore the express requirement in the May 1988 order that incidental underground water storage be decreased proportionately. The DNR properly applied the proportional reduction condition of the May 1988 order when it canceled 0.65 cfs of NPPD's incidental underground water storage, and NPPD's argument to the contrary is without merit.
2. FAILURE TO INCREASE AMOUNT OF UNDERGROUND WATER STORAGE
NPPD also argues that the DNR erred in not increasing NPPD's incidental underground water storage. We have concluded that the DNR did not err in canceling 0.65 cfs of NPPD's incidental underground water right, as that result was required based upon the proportional reduction condition in the May 1988 order. Thus, we have also decided that the DNR should not have increased NPPD's incidental underground water storage due to the transfer of 117 acres from the Dawson County Canal. This assignment of error is without merit.
3. FAILURE TO PRESENT EVIDENCE
In its next assignment of error, NPPD argues that the DNR erred in not presenting evidence at the December 10, 2001, hearing to support its decision to cancel 0.65 cfs of incidental underground water storage.
In Ponderosa Ridge LLC v. Banner County, 250 Neb. 944, 554 N.W.2d 151 (1996), this court held that an applicant bears the burden of providing the director enough evidence on which to base a decision. See, also, Neb.Rev.Stat. § 46-294(1)(e) (Cum.Supp.2002) (applicant has *368 burden of proving that intrabasin transfer will comply with requirements of state law); Neb.Rev.Stat. § 61-206(1) (Cum. Supp.2002) (burden of proof in hearing before DNR shall be upon person making complaint, petition, and application).
NPPD could not and did not meet its burden of showing that the DNR's decision to cancel certain incidental underground water storage was incorrect. The proportional reduction condition in the May 1988 order dictated the DNR's decision to cancel that underground storage. No showing by NPPD would have been sufficient to overcome the plain language of the May 1988 order. This assignment of error is without merit.
4. RELIANCE ON RELINQUISHMENTS AND ADJUDICATIONS NOT IN RECORD
In its final assignment of error, NPPD argues that the DNR relied on relinquishments and adjudications not in the record, asserting that the DNR made two factual findings in the January 2003 order which were based upon prior orders not in the record. These findings purportedly show the manner in which the proportional reduction condition had previously been applied by the DNR with respect to similar applications made by NPPD.
In its brief, the State concedes that the orders should have been placed in the record. However, the State argues that NPPD was not prejudiced by the inclusion of the prior orders in the January 2003 order because the earlier orders were not used to come to the DNR's ultimate conclusion. Rather, the DNR's conclusion was dictated by the condition in the May 1988 order.
NPPD is correct in its contention that the DNR should not have made factual findings regarding these prior orders when issuing its January 2003 order. These particular findings were not made in the June 2001 order which initially canceled the disputed 0.65 cfs of incidental underground water storage. It is clear that these orders were not admitted into evidence, nor was the hearing officer asked to take judicial notice of them. The contested factual findings are not supported by competent and relevant evidence and thus are in error.
However, error without prejudice provides no ground for appellate relief. Agri Affiliates, Inc. v. Bones, 265 Neb. 798, 660 N.W.2d 168 (2003). Though the DNR erred in referring to the earlier orders in the January 2003 order, NPPD suffered no prejudice. The DNR's decision to cancel 0.65 cfs of NPPD's incidental underground water storage is supported solely by the condition included in the May 1988 order. Any reference to other contested orders appears merely to be an attempt by the DNR to illustrate its consistency with respect to the application of this condition. This assignment of error is without merit.
VI. CONCLUSION
The DNR did not err in canceling 0.65 cfs of NPPD's incidental underground water storage rights. The January 2003 order of the DNR is affirmed.
AFFIRMED.
MILLER-LERMAN, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591223/ | 14 So.3d 1007 (2009)
K.C.
v.
DEPARTMENT OF CHILDREN AND FAMILIES.
No. 1D09-1285.
District Court of Appeal of Florida, First District.
August 25, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591122/ | 972 So.2d 417 (2007)
Arthur SNOWTON
v.
SEWERAGE AND WATER BOARD.
No. 2007-CA-0677.
Court of Appeal of Louisiana, Fourth Circuit.
December 5, 2007.
Rehearing Denied January 23, 2008.
*418 W. Jared Vincent, Law Offices of William S. Vincent, Jr., New Orleans, LA, for Plaintiff/Appellee.
Gerard M. Victor, Special Counsel, Jacob Taranto, III, Deputy Special Counsel, Brian A. Ferrara, Attorney IV, Sewerage & Water Board of New Orleans, New Orleans, LA, for Defendant/Appellant.
(Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME).
DAVID S. GORBATY, Judge.
The Sewerage & Water Board of New Orleans appeals a judgment of the Office of Workers' Compensation Administration. For the following reasons, we reverse.
FACTS AND PROCEDURAL HISTORY:
Arthur Snowton was allegedly injured on August 15, 2000, while working for the Sewerage & Water Board of New Orleans (hereinafter SWB). He was employed as a laborer and claims to have injured himself while attempting to lift a manhole cover.
Mr. Snowton was treated by Dr. Lucienne Miranne who diagnosed a L4-L5 herniation, with radiculopathy. Dr. Miranne performed a lumbar laminectomy in early October, 2002. After the surgery, Mr. Snowton was seen by Dr. Miranne's associate, Dr. Gregory Dowd, because of continued complaints of pain. Dr. Dowd recommended epidural injections and referred Mr. Snowton to Dr. Joseph Crapanzano for the injections. Because Mr. Snowton continued to complain of pain, Dr. Crapanzano referred him to the Medical Musculoskeletal Institute.
The Medical Musculoskeletal Institute is a clinic for rehabilitation of injured workers. After examination and treatment of Mr. Snowton for approximately one year, Dr. Karen Ortenburg, found Mr. Snowton capable of returning to full time work in a light/medium physical demand job.
As part of his treatment at the Medical Musculoskeletal Institute, Mr. Snowton was examined by Dr. Megan Ciota, a clinical psychologist. Mr. Snowton tested in the extremely low end of the intellectual ability range; however, Dr. Ciota was of the opinion that Mr. Snowton was exhibiting sub-maximal effort. When asked about the severity of his symptoms, Dr. Ciota opined that Mr. Snowton was exaggerating.
In February of 2003, SWB hired Heyward Johnson, a medical and vocational rehabilitation consultant, to assist Mr. Snowton in finding suitable employment. Before a job search was conducted, Joseph Shine, a physical therapist, evaluated Mr. Snowton's functional capacity and found that he was capable of working an 8 hour day in a light duty capacity, occasionally lifting up to 20 pounds, and frequently lifting up to 10 lbs. Mr. Shine also found that Mr. Snowton was demonstrating signs of symptom exaggeration and disability magnification.
*419 Beginning in January of 2004, Mr. Snowton saw Dr. Charles Murphy, an orthopedist, with whom he treated until July 2004. Dr. Murphy ordered an EMG/NCS, which confirmed the previous diagnosis of L5 radiculopathy. Dr. Murphy's report indicated that Mr. Snowton did not believe he could return to any type of work because of having "bad days." Dr. Murphy, however, was of the opinion that Mr. Snowton had reached maximum medical improvement and could return to work in a sedentary to light position. The job should not require prolonged standing or sitting in one position, nor carrying or lifting of more than 10 pounds.
In November 2006, the issues of whether Mr. Snowton could work at all and his rate of compensation were tried. The judge ruled that Mr. Snowton was no longer temporarily disabled, and that he was entitled to supplemental earnings benefits with an earnings rate of zero. Further, Mr. Snowton was entitled to a presumption of working 40 hours per week for each of the 4 weeks preceding the accident. Lastly, the judge awarded penalties and attorney fees related to the calculation of benefits and failure to pay correctly and timely.
DISCUSSION:
In its first assignment of error, SWB argues that the trial court committed manifest error in finding that Mr. Snowton was not mentally or physically capable of working at least one of the jobs identified by the vocational rehabilitation counselor. We agree.
A workers' compensation judge's finding regarding disability is a factual finding which should be given great weight and should not be overturned absent manifest error. Bolton v. Grant Parish School Bd., 98-1430 (La.3/2/99), 730 So.2d 882.
The trial court based its opinion concerning Mr. Snowton's intellectual disability on testimony from Edward Ryan, a vocational expert hired by Mr. Snowton. After meeting with Mr. Snowton the morning of trial, Mr. Ryan concluded that the claimant could work an 8 hour day if he was allowed to change positions, that is, not stand, sit, etc., for more than about 2 hours a day. Mr. Ryan also speculated that the high school diploma obtained by Mr. Snowton was somehow not legitimate. He opined that it was presented at a time when some schools gave diplomas to handicapped children who had not completed the same requirements as non-handicapped children. No evidence was submitted to substantiate this opinion.
There was conflicting evidence as to whether Mr. Snowton could read at all, but it was determined by testing, that if he could read, it was at a first-grade level at best. The trial court found that Mr. Snowton had only recently obtained a driver's license, after taking an oral examination; however, there was evidence that he previously had a driver's license, but had let it expire.
The trial court based its findings relative to Mr. Snowton's physical limitations on the report of Dr. Murphy, who found Mr. Snowton could return to a sedentary to light position.
The possible jobs identified by Mr. Johnson based on the functional capacity examination were groundskeeper for SWB, and equipment operator or office assistant, both civil service jobs. Additional jobs identified for possible employment were groundskeeper for an apartment complex, a helper in a T-shirt print shop, and a convention badge checker.
Mr. Ryan testified that Mr. Snowton could not perform any of the jobs identified, an opinion with which the trial court agreed. Mr. Ryan ascertained from a supervisor for the convention company that the badge checker job would require *420 standing for an 8 hour shift. The flier for the private groundskeeper job stated that lifting up to 40 pounds was required, and the groundskeeper for SWB would require lifting of up to 20 pounds. These requirements placed the jobs outside the work restrictions placed by Dr. Murphy. Mr. Ryan did not believe Mr. Snowton could work at the T-shirt shop because of both physical and intellectual restrictions. Without any specific knowledge of the job requirements, Mr. Ryan stated that Mr. Snowton would probably have to stand up 8 hours a day. Further, the job requirements were to take and file orders, and do inventory control. He did not believe Mr. Snowton could do any of these things because of his limited education.
Mr. Ryan did not contact anyone at civil service to determine the parameters of the jobs identified. Despite this lack of actual knowledge, he opined that the office assistant job would require some clerical work, which Mr. Snowton could not do because of his limited reading skills. He did not feel Mr. Snowton could perform as an equipment operator because he presumed this would mean operating heavy equipment.
Cynthia McGuire, the workers' compensation coordinator for SWB testified that the office assistant job might require making copies and running errands within the office. The job description did not include filing papers or typing. The equipment operator job included driving a small pick-up truck to job sites for deliveries of items loaded onto the truck by other workers. The SWB groundskeeper job would entail using a stick with a nail attached to pick up trash. Mr. Snowton could empty his bag at anytime to avoid lifting more than 10 pounds. He could also work inside the building answering the phone. Ms. McGuire testified that the supervisor of this job was more than willing to accommodate a worker's limitations.
Based on the above testimony and physical evidence, the trial judge concluded that Mr. Snowton could not work at any of the jobs identified as appropriate. Thus, she concluded that Mr. Snowton was entitled to supplemental earnings benefits at an earnings rate of zero.
Interestingly, in reasons for judgment the trial judge stated that Mr. Snowton was invited to apply for the groundskeeper job with SWB, he was not offered the job. We find this to be a distinction without a difference. All of the jobs identified as appropriate for Mr. Snowton were available at the time offered; however, the record indicates that Mr. Snowton never attempted to apply for any of the jobs. The following testimony was elicited from Mr. Snowton:
Q. Mr. Snowton, do you ever remember being offered any jobs by the Sewerage and Water Board?
A. They gave me a couple of jobs.
Q. I'm talking about after your accident.
A. I think so, but I can't remember the guy's name. He used to come by the house all the time. He tried to get me to go back to work. And I told him I got to have surgery in a few more days, but he insisted on that he's going to find me a job, though. That's all I remember about him.
* * *
Q. Okay. Do you remember any of the jobs they offered you?
A. Oh, boy. I can't remember most of them. Car wash I think, something like that. I said, "How you going to get me a job? Water Board got pools now?"
Q. Oh, no. What I meant was what jobs did the Sewerage and Water Board itself offer to you?
*421 A. What you saying now?
Q. At their premises, that you could do for them?
A. Nothing, nothing, because I couldn't do nothing for them.
Mr. Snowton recalled these visits to be before his surgery. However, Mr. Snowton's surgery was in 2002, and Mr. Johnson did not begin counseling Mr. Snowton until 2003.
The reports of Heyward Johnson offered into evidence likewise indicate that Mr. Snowton never attempted to apply for any of the jobs identified. Mr. Snowton did inquire about a civil service position as a utility plant worker; however, despite two opportunities to test for the job, Mr. Snowton did not show up either time.
All of the jobs identified by Mr. Johnson were approved by Dr. Ortenburg, who had already pronounced Mr. Snowton at maximum medical improvement. Also, at the time the jobs were offered, Mr. Snowton was deemed capable of working in a light to medium position, lifting and/or carrying up to 40 pounds. Thus, even when considering the later evaluation by Dr. Murphy, limiting Mr. Snowton to a sedentary to light position, with maximum lifting and or carrying up to 10 pounds, the groundskeeper job with SWB and the office assistant job were within the restrictions placed on Mr. Snowton's abilities.
We also note that the trial judge considered the SWB groundskeeper job to be a type of "sham rehabilitation" based on Vermilion Parish Police Jury v. Williams, 02-12 (La.App. 3d Cir.7/3/02), 824 So.2d 466, 474. The concurrence on which the trial judge relied was based on several other Third Circuit cases, which this Court has not followed, and does not choose to do so at this time.
Accordingly, we find the trial court erred in finding Mr. Snowton entitled to SEB's after he reached maximum medical improvement. Mr. Snowton was capable of working in at least two positions offered to him. Each job would have paid him more than 90 percent of his pre-accident wage. SWB is therefore entitled to a credit for all SEB's paid to Mr. Snowton.
SWB's second assignment of error is that the lower court erred in presuming Mr. Snowton worked a 40 hour week. See La.Rev.Stat. 23:1021(12)(a) provides in pertinent part:
(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater, or (ii) If the employee is paid on an hourly basis and the employee was offered employment for forty hours or more but regularly, and at his own discretion, works less than forty hours per week for whatever reason, then, the average of his total earnings per week for the four full weeks preceding the date of the accident,. . . .
The trial judge relied on Price v. Fireman's Fund Ins. Co., 502 So.2d 1078 (La. 1987), in holding that Mr. Snowton was entitled to a presumption of working full 40 hour weeks for the 4 weeks preceding the accident. The record contains evidence submitted by SWB that Mr. Snowton routinely missed work without pay. In 2000, prior to the accident, he missed 18 days of work out of the 163 work days available. In 1999, he missed 35.75 days without pay, having already used his 7 sick days and 15.25 annual leave days. We find that this sufficiently rebuts the presumption provided in La.Rev.Stat. 23:1021(12)(a)(i). To find otherwise, negates the purpose of La.Rev.Stat. 23:1021(12)(a)(ii).
*422 However, our review of the record also reveals that the amount paid by SWB in TTD benefits was less than it should have been, although by a smaller amount than that found by the trial court.
Neither party disputes that Mr. Snowton was paid $6.93 per hour. According to the statute, his average weekly wage at 37.97 hours per week (applying the reduction allowed by statute), was $263.15. This is the same amount calculated by SWB. Two-thirds of $263.15 is $175.44. After deducting the $31.50 ordered by State for a child support income assignment, Mr. Snowton should have been paid $143.94. SWB paid $133.44 in TTD benefits. Accordingly, Mr. Snowton is entitled to the difference between what was actually paid and the amount he should have been paid.
SWB's last assignment of error addressed the trial court's award of penalties and attorney fees for miscalculating benefits and failure to pay them timely. La. Rev.Stat. 23:1201 F provides in pertinent part:
Failure to provide payment in accordance with this Section . . . shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; . . .
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.
We have determined that Mr. Snowton was underpaid TTD's in the approximate amount of $10.00 per week; however, we have also determined that Mr. Snowton was not entitled to SWB payments at all. Because we find that Mr. Snowton's claim was reasonably controverted, we reverse the award of penalties and attorney fees.
Accordingly, for the reasons assigned above, we reverse the judgment of the trial court and remand this matter for recalculation of benefits and credits in accordance with this opinion.
REVERSED AND REMANDED.
BELSOME, J., dissents with reasons.
BELSOME, J., dissents with reasons.
I respectfully dissent from the majority opinion.
I find that the workers' compensation judge had ample evidence from which to draw her conclusions of fact. The judge recognized Mr. Snowton's physical and mental limitations, finding him unemployable since his work related accident and subsequent surgery. One of Mr. Snowton's treating physicians, Dr. Charles Murphy's report clearly defined his physical limitations as no lifting or carrying of more than 10 pounds, no prolonged sitting, and no prolonged standing. He further found that Mr. Snowton could work approximately three hours in a day but not three consecutive hours.
The record also indicates that Mr. Snowton has an I.Q. of 59. The psychologist that tested him suggested, and the majority accepted, that he was "exhibiting sub-maximal effort" during the testing. The evidence in the record completely contradicts that possibility. Mr. Snowton testified that he attended school as a special education student and admitted to being illiterate; his employment history was limited to dishwasher, janitor, and laborer. I find, as did the workers' compensation judge, that the testimony regarding Mr. Snowton's education and employment *423 background is consistent with his I.Q. evaluation. Furthermore, the workers' compensation judge observed him at trial and did not find him to be a malingerer. Instead the judge found him to be too limited in his physical and mental capabilities to find gainful employment. That conclusion of fact is reasonable given the testimony of vocational expert, Edward Ryan coupled with Dr. Murphy's report.
If the trial court's findings are reasonable in light of the record the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). As stated by the majority, a finding of disability by a workers' compensation judge is a factual finding which should be given great weight. Bolton v. Grant parish School Bd., 98-1430 (La.3/2/99), 730 So.2d 882. Given the record as a whole the OWC judge's findings cannot be deemed manifestly erroneous. Therefore, this Court should not disturb the OWC judge's determination. Accordingly, I would affirm the judgment and amend to reflect the proper SEB calculation as set forth in the majority's opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591154/ | 42 S.W.3d 716 (2001)
Sherree KELTNER, Appellant,
v.
K-MART CORPORATION, Respondent.
No. ED 76613.
Missouri Court of Appeals, Eastern District, Division Two.
January 30, 2001.
Motion for Rehearing and/or Transfer Denied March 19, 2001.
Application to Transfer Denied April 24, 2001.
*717 Michael A. Gross, St. Louis, MO, for appellant.
Larry D. Hale, Kmart Corporation, Gloria C. Reno, Andrew T. Pickens, St. Louis, MO, for respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied March 19, 2001.
JAMES R. DOWD, Judge.
Sherree Keltner filed a negligence action against K-Mart Corporation alleging personal injuries caused by a falling light fixture in a K-Mart dressing room. After a jury returned a verdict for Keltner, K-Mart moved for judgment notwithstanding the verdict, new trial or remittitur. The trial court denied K-Mart's motions for judgment notwithstanding the verdict and remittitur, but granted its motion for a new trial after finding that a juror intentionally failed to disclose that he had been a defendant in four collection suits between 1980 and 1990. We reverse.
This appeal centers on what occurred during voir dire. Trial began on June 14, 1999. During voir dire Keltner's attorney began by introducing the attorneys, parties and witnesses, and asked whether any members of the panel had heard of or knew any of these people. After asking a number of standard questions, he focused the panels' attention on principles of negligence and asked whether any of them believed that there ought to be a limit on *718 the amount of compensation persons may receive for injuries caused by others.
Plaintiff's attorney then focused the panel's attention on the issue of personal injury suits. He asked the panel whether they or close family members had any medical training, if any person would have a problem returning a verdict for Keltner that included amounts for her medical bills, and if any panel members or their family members had ever been hurt or injured at a business. After a number of jurors described instances where they or a family member had been injured at work and filed suit against the business, plaintiff's attorney asked if any one on the panel had owned or had a family member who had owned or operated a business. The following exchange then occurred between plaintiff's attorney and juror # 650, the juror K-Mart claims intentionally failed to disclose prior collection suits:
JUROR NO. 650: My wife operates a day care.
[PLAINTIFF'S ATTORNEY]: Anyone filed a claim against her?
JUROR NO. 650: No.
[PLAINTIFF'S ATTORNEY]: Do you think the fact that this case is against a business would influence you here?
JUROR NO. 650: No.
[PLAINTIFF'S ATTORNEY]: You would be able to be fair and decide the case?
JUROR NO. 650: Yes, I can decide.
After juror # 1254 indicated that she and her brother had businesses and no injury suits had been filed against them, plaintiff's attorney then asked:
I have asked you about claims any of you have brought. Let me ask next if there are any instances where claims have been brought against you. Has anyone claimed you did something wrong that you are responsible for, an injury or something else, and filed a claim or a suit against you?
It is this question that K-Mart maintains triggered the jurors' duty to provide information about prior collection suits. Juror # 646 responded by describing an instance where he was sued for personal injuries when someone fell on the sidewalk in front of his home. No other juror responded. Plaintiff's attorney then returned to the issue of claims for a second time:
Anybody had a claim filed against them? How many of you have heard, read, or seen anything about the so-called lawsuit crisis? There's too many lawsuits, frivolous claims filed and injuries and awards, too much money? I don't want to ask your personal experience. Just raise your hand if you have ever heard, read, or seen anything about that. Has anyone on the panel had an orthoscopic or other shoulder surgery, orthoscopic or otherwise? Anybody?
No one responded.
The trial court found that the record was unclear "whether the jurors were given adequate opportunity to respond to the question about claims against them before the attorney went on to another subject."[1] After this, the questioning moved on, again focused on personal injuries. Plaintiff's attorney asked the panel members if they or anyone close to them had ever suffered or been hospitalized for a shoulder injury.
The attorney for K-Mart began her voir dire by introducing herself and her law firm. She asked if anyone on the panel would have a problem with the fact that, because K-Mart is a corporation, no one *719 would be sitting in the chair beside her at the defense table. She asked if the panel understood that the plaintiff has the burden of proof. The questioning then shifted to personal injuries. After mentioning a juror who had described an injury during plaintiff's voir dire, she asked: "Is there anything or anybody else who had any injuries?" No one answered. She went on: "And I don't recall [plaintiff's attorney] asking this, but any injuries of any other self-service type stores?"
The defense attorney then asked whether anyone thought that because K-Mart is a corporation, Keltner's burden should be less. She asked whether anyone was unhappy with K-Mart in any respect; whether any of the panel members knew one another; and whether anyone on the panel had something going on in their life that might interfere with their duties as jurors. She then reminded the jurors that they could not substitute their feelings for evidence. After this she asked: "has anyone thought of any responses to [plaintiff attorney's] questions that you would like to make at this time?" She closed her voir dire by asking again if the panel understood the burden of proof, and whether any one thought that "simply because Mrs. Keltner brought a claim that she is automatically entitled to some money?"
On June 16, 1999, after a three-day trial, the jury returned a verdict for Keltner. On July 12, 1999, K-Mart filed a motion for judgment notwithstanding the verdict, for a new trial or remittitur. Among the reasons K-Mart gave as grounds for its motion was that a juror had failed to disclose during voir dire that four collection suits had been filed against him and his wife between 1980 and 1990,[2] and that in 1989 they filed for bankruptcy. K-Mart argued that the following question "unequivocally triggered" the juror's duty to tell the court about his prior collection suits and justifies the trial court's finding of intentional non-disclosure:
Let me ask next if there are any instances where claims have been brought against you. Has anyone claimed you did something wrong that you are responsible for, an injury or something else, and filed a claim or a suit against you?
Juror 650 was issued a subpoena to appear before the court for a hearing on July 23, 1999. At that hearing the juror was questioned extensively about his prior debts, collection suits and bankruptcy. Counsel for K-Mart began her interrogation:
Do you recall being asked the question as to whether or not any lawsuits have ever been filed against you or had ever been filed?
(emphasis added). Plaintiff's attorney objected to the defense attorney paraphrasing the question asked at voir dire. The defense attorney then asked juror # 650 "do you recall the question" and read the question to him. (emphasis added). The juror responded: "I didn't remember at the time there was some claims for debts back in the `80s that I took care of most of them. And when I got later on, then I paid them off and I had to file bankruptcy ..." The juror was then required to testify about the circumstances surrounding his bankruptcy and each of his collection suits, one by one. After this, counsel for K-Mart attempted to establish that the juror *720 had deliberately sought to conceal this information from the court during voir dire.
Q .... you did say you did hear the question; is that correct?
A. Yes, I heard the question, but I didn'tI don't remember. I don't know if it was current or back many years or what.
Q. And you didn't raise your hand to ask whether or not they were talking about recently or back so many years; is that correct?
A. No, I didn't.
Q. So you were aware of these claims at the time the voir dire was going on?
A. I don't remember them. I just thought you was talking about the last couple of years or something. I didn't know it would be going back 10 years or 5 years or what or more.
Q. But you didn't ask, though?
A. No.
Q .... you were aware all the questions that were asked was asked of each and every juror and you were supposed to respond?
A. Yes.
Q. And you did not respond to that question?
A. I didn't remember the lawsuits because after that long a period, I more or less didn't. I did the best I could do to answer.
(emphasis added).
On cross-examination by plaintiff's attorney, the juror said that he did not specifically recall any of the collection suits when asked about claims during voir dire. He also testified that none of the collection suits resulted in a trial. On re-direct, K-Mart's attorney suggested that the juror and the attorney for Keltner had colluded on the testimony he was giving. The following exchange occurred:
Q. Is it your testimony here before the Court today that you discussed in detail these suits with Plaintiff's counsel before coming to court and testifying this morning; is that correct?
A. I called and asked why was I being subpoenaed, for I had no idea.
Q. And you discussed in detail, you just testified to [plaintiff's attorney], in detail these suits before you came to the court to testify in court today; is that correct?
A. I tried to find out why I was called in.
Q. Did you
THE COURT: Would you listen to the attorney carefully, to what she's asking you, and just answer the question, please?
BY [DEFENSE COUNSEL]:
Q. Did you discuss in detail with Plaintiff's counsel before you testified in here in court today these suits?
A. Yes.
Q. And you did not discuss those with anyone at my office; is that correct?
A. I called your office.
Q. You did not discuss these suits with anyone in my office; is that correct?
A. No.
Q. It's correct, you did not discuss these suits with anyone at my office; is that correct?
A. Yes.
Q. Was it suggested or told you by Plaintiff's counsel that you simply if you didn't remember, just say you didn't remember?
A. No.
Q. Could you state in your own words exactly what was discussed?
*721 A. I asked him why was I being sued or why I was coming here, and he told me it was a matter of the lawsuits filed against me back in `80s or 10 years ago and basically that was it. I called your office because I was supposed to be in Florida because I was to be taking my grandchildren to Florida and nobody returned my call. Nobody returned my call.
Q. It's your testimony that you spoke to no one at my office; is that what you're telling the Court?
A. No, I talked to somebody, to Mr. Hale or when I called your office about three or four times and talked to someone.
Q. It is your testimony that you were supposed-you did not receive a call back or you returned the call?
A. I was supposed to leave Wednesday to go to Florida and was trying to get something set up so I could leave because I lost a day of vacation and hotels and I would go down there and wouldn't have reservations.
Q. Were you upset by that?
A. What?
Q. Were you upset by that?
A. No, not upset. Just I had reservations and I hoped I could find a place to stay.
After the hearing the court granted K-Mart's motion for a new trial. In its order the court found, first, that "some jurors" understood the question about "claims" because juror # 646 answered the question. That juror, as previously stated, told of a pedestrian who was injured on the sidewalk in front of his house. The court then found intentional non-disclosure by juror # 650 on the ground that he gave what the court characterized as "evasive" answers at the post-trial hearing.
Keltner argues that the court erred because the questions asked at voir dire were insufficiently clear to trigger the juror's duty to disclose his previous collection suits or to support the trial court's finding of intentional nondisclosure. If there was non-disclosure, Keltner claims, it was unintentional and not shown to result in prejudice likely to affect the verdict. K-Mart argues that the failure to disclose collection cases filed by other corporations revealed a specific prejudice held by juror # 650 against corporations such as itself.
Both parties in a lawsuit have the constitutional right to a fair and impartial jury. MO. CONST. ART. I, SEC. 22(a); Beggs v. Universal C.I.T. Credit Corp., 387 S.W.2d 499, 503 (Mo. banc 1965). "The essential purpose of voir dire is to provide for the selection of a fair and impartial jury through questions which permit the intelligent development of facts which may form the basis of challenges for cause, and to learn such facts as might be useful in intelligently executing peremptory challenges." Pollard v. Whitener, 965 S.W.2d 281, 286 (Mo.App. W.D.1998). "It is the duty of a juror on voir dire examination to fully, fairly, and truthfully answer all questions directed to him (and to the panel generally) so that his qualifications may be determined and challenges may be intelligently exercised." Seaton v. Toma, 988 S.W.2d 560 (Mo.App. S.D.1999). A juror is not the judge of his or her own qualifications. Beggs, 387 S.W.2d at 503. Failing to ask a question on voir dire waives the right to challenge the juror on any grounds not asked. State v. Walton, 796 S.W.2d 374, 379 (Mo. banc 1990).
Voir dire gives the parties an opportunity to develop information that might disclose a potential juror's specific bias in a suit of the type at trial. Courts will not, *722 however, stack inferences, as K-Mart urges, to conclude that the juror possesses a general bias against a party. See Hale v. American Family Mut. Ins. Co., 927 S.W.2d 522, 527 (Mo.App. W.D.1996). Information likely to disclose a general bias against a party must be developed by questions designed to clearly establish the existence of such a sweeping bias.
Courts should not overturn a jury verdict lightly. Trials are costlyfor the litigants, the jurors and taxpayers. See McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 553, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984).[3] Before a trial court may overturn a jury verdict because of intentional non-disclosure it must first determine whether non-disclosure occurred. The Supreme Court of Missouri has consistently made clear that a finding of non-disclosure requires a preliminary determination: Was the question clear? See Heinen v. Healthline Management, Inc., 982 S.W.2d 244, 249 (Mo. banc 1998); McHaffie v. Bunch, 891 S.W.2d 822, 829 (Mo. banc 1995); Brines v. Cibis, 882 S.W.2d 138, 139 (Mo.1994); Wingate by Carlisle v. Lester E. Cox Medical Center, 853 S.W.2d 912, 914 (Mo. banc 1993); Williams v. Barnes Hospital, 736 S.W.2d 33, 35 (Mo. banc 1987).
While there are no criminal penalties assessed, juror non-disclosure is in other respects similar to perjury. "Precise questioning is imperative as a predicate for the offense of perjury." Bronston v. United States, 409 U.S. 352, 362, 93 S.Ct. 595, 602, 34 L.Ed.2d 568 (1973). The United States Supreme Court has identified three essential goals for this requirement in perjury cases: (1) to preclude convictions grounded on surmise or conjecture; (2) to prevent witnesses from unfairly bearing the risks of inadequate examination; and (3) to encourage witnesses to testify (or at least not discourage them from doing so). Id. at 359, 93 S.Ct. 595. Analogous values are at stake in the case of juror non-disclosure. First, in the absence of a clear question verdicts may be impeached on the basis of surmise and conjecture, as in this case.[4] Second, no legitimate purpose is served by requiring jurors to appear at a post-trial hearing, under a cloud of suspicion, unless the court has already determined that the question the juror allegedly failed to answer unequivocally triggered the juror's duty to respond. Third, it ill serves the judicial system to subject jurors to the embarrassment and inconvenience of a post-trial hearing and thereby add to the reasons so many citizens are reluctant to serve as jurors.
These important values underlie the Missouri Supreme Court's requirement *723 that non-disclosure can occur only after a clear question on voir dire unequivocally triggers the venireperson's duty to respond. Wingate, 853 S.W.2d at 916. Venirepersons cannot be required to guess at an attorney's meaning. Attorneys should know the sort of information they desire from the panel. They control the form of the questions they ask. If the plaintiff's attorney fails to ask a material question clearly, the defense is free to ask that question more clearly. Courts will not permit attorneys to take advantage of their own or their opponent's ambiguous questions to impeach a verdict they dislike. So the first question that must be answered by a trial court in determining if juror non-disclosure has occurred is: was the question the juror is alleged to have failed to answer clear? Id. Only after the court has determined that the question is clear does it proceed to the question of whether the non-disclosure was intentional or unintentional. McHaffie, 891 S.W.2d at 829.
Missouri courts have never ruled specifically on the standard of review in determining if there has been a clear question. The dissent, citing Brines, argues that the standard should be abuse of discretion. We disagree. In Brines the court did not face the question of whether the question was clear. In Brines the judge had asked the jurors: "Do we have anyone on the [jury] panel who is now or has been a defendant in a lawsuit?" Brines, 882 S.W.2d at 139. The Supreme Court, without specifically indicating its standard of review, held: "This question unequivocally triggered the prospective jurors' duty to disclose previous lawsuits against them." Id.
In reviewing a determination that intentional or unintentional non-disclosure has occurred we apply an abuse of discretion standard. But here we are addressing the threshold determination: Was the question clear? When appellate courts are called upon to determine the clarity of language, their review is generally de novo. This is true in the interpretation of contracts (Goldstein and Price, L.C. v. Tonkin & Mondl, L.C., 974 S.W.2d 543, 551 (Mo.App. E.D.1998)) and statutes (Martinez v. State, 24 S.W.3d 10, 15 (Mo. App. E.D.2000)). While Missouri courts have never been called on to decide the type of review employed in deciding whether a question is sufficiently clear to support a finding of perjury, a determination similar to the one we make here, the federal courts have. They review the question of fundamental ambiguity in perjury cases de novo. See, e.g., United States v. Serafini, 167 F.3d 812, 819-20 (3rd Cir.1999); United States v. Manapat, 928 F.2d 1097, 1099 (11th Cir.1991); United States v. Lighte, 782 F.2d 367, 375 (2nd Cir.1986). For these reasons we hold that our review of the clarity of questions on voir dire is de novo. See also McHaffie, 891 S.W.2d at 829 (declaring a question unclear without abuse of discretion analysis).
Only after there has been a ruling that the voir dire question is clear, may the court hear evidence and determine whether the disclosure was intentional or unintentional. In Missouri, a finding of intentional nondisclosure amounts virtually to a per se rule mandating a new trial. Heinen, 982 S.W.2d at 248. "Finding a juror had a `reckless disregard' for the responsibility to disclose information during voir dire is tantamount to intentional nondisclosure." Id. Unintentional nondisclosure exists where the experience is insignificant, remote in time or when the venireperson reasonably misunderstands the question. McHaffie, 891 S.W.2d at 829. If nondisclosure is unintentional, a new trial may be granted only if it "may *724 have influenced the verdict so as to prejudice the party seeking a new trial." Williams, 736 S.W.2d at 37. Prejudice is a determination of fact for the trial court, its finding to be disturbed on appeal only for abuse of discretion. Id. A new trial is not mandated where the information not disclosed does not bear on the case or on the prospective juror's ability to fairly evaluate the evidence. McHaffie, 891 S.W.2d at 829.
The dispositive issue here is: Was the question juror # 650 allegedly failed to answer clear? The trial court did not explicitly make a finding that the question was clear; but such a finding is implicit in the court's order. The court stated that "the question was understood by at least some jurors" because juror # 646 responded to the question by telling of a suit for personal injuries arising from a pedestrian falling on the juror's sidewalk. The trial court erred. Juror # 646's response actually provides support to plaintiff's contention that a reasonable juror would understand the question to call for claims made for personal injuries. None of the panel members responded with information about collection suits.
The record reveals that Keltner's attorney repeatedly focused the venire panel's attention on personal injuries. Prior to asking about "claims," Keltner's attorney raised the issue of negligence four times. He used cognates of "injury" forty-three times. Collection suits and debts were never mentioned. The question he asked was whether "there are any instances where claims have been brought against you. Has anyone claimed you did something wrong that you are responsible for, an injury or something else, and filed a claim or a suit against you?" Only one juror responded to this question. In that response juror # 646 told of a personal injury suit filed against him. This response provides no support for the claim that "some jurors" understood that the question called for information about collection suits.
K-Mart cites Williams to support the trial court's finding that the voir dire question was clear. K-Mart points to the statement in Williams that: "A `claim' even in the barest of layman's language, includes not only a lawsuit but also a claim settled out of court." Williams, 736 S.W.2d at 38. K-Mart also points to the statement in Brines that asking whether anyone on the jury panel has been a "defendant in a lawsuit" unequivocally triggers the duty to disclose previous lawsuits against them. Brines, 882 S.W.2d at 139.
Williams involved a claim for personal injury arising from alleged obstetrical medical malpractice. Williams, 736 S.W.2d at 34. The jury returned a 9-3 verdict in favor of the plaintiff. Id. In Williams the attorneys conducted an extensive voir dire. Together, the plaintiff's and the defendant's attorneys asked the panel whether they had been involved in "lawsuits" or "claims" seven times. Id. at 34-35. The plaintiff's attorney began by asking:
Is there any member of this panel who hashad a lawsuit or a claim brought against him or her? Have any of you folks ever been sued? I'm not talking about domestic relations. Other than that. I'm talking about something which would involve an injury to you. Have any of you folks ever had a lawsuit or claim brought against you?
Id. After responses by the panel, he continued:
Is there anybody else here who has been sued or had a claim brought against him or her, or ... have any of you folks ever brought a suit against anyone? *725 Id. at 35. After questioning a venireperson, he resumed:
Is there anyone else who has ever had a lawsuit or claim brought against him or her or have any of you folks ever brought a lawsuit or a claim against anyone else? And let me enlarge that-the reason we asked this is because there is nothing worse for either side than getting a verdict and having it set aside because somebody forgot to tell us that they had an automobile accident in Austin, Texas, eight years ago and it can be that silly.
Williams, 736 S.W.2d at 35. Then, during the defense's voir dire examination, counsel asked a series of questions pertaining to prior litigation and claims:
First let me ask about claims made. That is where you had a claim against another party, whether it be an automobile wreck or whether it be a lawsuit that you fell somewhere, something like that. Now, some of you have already told us about your claims; Workmen's Compensation would be a claim also.
* * *
Do any of the rest of you have claims that you have asserted on your own behalf that have not been told to us so far today?
* * *
Are there any of you that have other personal injuries that you've made claims against someone else for eithereither through Workmen's Compensation or automobiles, that kind of thing?
Id. Finally, defense counsel asked whether any of the prospective jurors had claims brought against them:
Let me ask the other side of the coin. How many of you have been in the position that Barnes Hospital is now in, that someone has asserted a claim against you? Are there any of you that have been defendants in an actual lawsuit? I take it by your silence no one has.
Id.
Despite this extensive and repeated emphasis on whether venirepersons had been involved in lawsuits, one juror failed to disclose two credit card actions against her and another juror failed to disclose a contract claim she had filed and the fact that her wages were being garnished by a major corporation. Id. at 37. The Williams court upheld the trial court's determination that these failures to disclose were unintentional and not prejudicial. Id. Explaining itself, the court said:
Whatever general import these questions [above] could be said to have, the examples used by both counsel during voir dire consistently narrowed the focus of the questions to actions involving personal injuries. The only concrete references given the prospective jurors were actions involving personal injuries, nothing more. It is therefore not surprising that the answers responded to and reflected this focus.
Id.
The Williams court, however, reversed the trial court's finding of unintentional non-disclosure in the case of a juror who failed to disclose he had been involved in personal injury litigation. It was in discussing this failure to disclose that the Court made the remark that a claim "even in the barest of layman's language, includes not only a lawsuit but also a claim settled out of court." Williams, 736 S.W.2d at 38. Contrary to what K-Mart maintains, Williams does not stand for the proposition that any question asking about "claims" is "even in the barest of layman's language" a clear question. The language from Williams that K-Mart relies on must be understood in the context in which it was made; namely, a personal injury suit *726 where the attorneys asked about prior lawsuits and claims seven times and the juror failed to reveal his involvement in a personal injury suit. Id. That same court had no difficulty affirming the trial court's finding that there was no juror misconduct for failing to disclose credit card actions, a contract claim, and a wage garnishment by a major corporation because the questions and examples used by the attorneys during voir dire focused on personal injuries. Id. at 37. The same is true in this case. Collection suits and debts were never mentioned during voir dire. The focus of the attorneys was exclusively on personal injuries.
We find K-Mart's citation of Brines similarly unpersuasive. Brines involved a claim for alleged negligence in the care and treatment of congenital glaucoma. A jury returned a defendant's verdict by a 9-3 vote. Brines, 882 S.W.2d at 139. During jury selection, the trial judge asked: "Do we have anyone on the [jury] panel who is now or has been a defendant in a lawsuit?" A juror remained silent even though he had recently been a defendant in eight lawsuits. Id. Pointing to the fact that the lawsuits were all filed in the previous six years and that he actually recalled the suits, a divided Missouri Supreme Court reversed the trial court and held that the juror's non-disclosure was intentional. Id.
In Brines the judge had asked the jurors plainly and clearly whether any of them had ever been a "defendant in a lawsuit." K-Mart analogizes this question with the one asked here. We see significant differences. First, Brines involved the simple question of whether anyone had been a defendant in a lawsuit. Here the question is: "Has anyone claimed you did something wrong that you are responsible for, an injury or something else, and filed a claim or a suit against you?" Second, there is no indication in Brines that the attorneys or judge repeatedly focused the jurors' attention on the issue of personal injuries before asking the question about lawsuits. Third, in Brines the question was not phrased in a manner that narrowed its focus to personal injuries.
K-Mart argues that the "or something else" at the end of the question asked by plaintiff's attorney broadened its original scope beyond personal injury suits, to include all prior lawsuits. We disagree. While technically one might say that the expression "or something else" has the effect of eliminating the reference to "injury" in the question, the standard for clarity is not the literal meaning of a question when carefully parsed by a grammarian. The standard we apply is whether a lay person would reasonably conclude that the undisclosed information was solicited by the question. Aliff v. Cody, 987 S.W.2d 439, 443-44 (Mo.App. W.D.1999); see also McDonough, 464 U.S. at 555, 104 S.Ct. 845. Missouri courts have consistently looked to the context of a question when determining whether non-disclosure is intentional or unintentional. Heinen, 982 S.W.2d at 248-49. There is no compelling reason why we should adopt a different standard of clarity when making the initial determination of whether the question "unequivocally triggered" the jurors' duty to disclose information.
How a reasonable lay person interprets the meaning of a question depends not only on the words used, but also on the context. Williams, 736 S.W.2d at 37; see also Serafini, 167 F.3d at 821 ("the meaning of individual questions and answers is not determined by lifting a statement out of its immediate context, when it is that very context which fixes the meaning of the question.")(internal quotation and citation omitted). Here, both the words and the context suggest that the attorney sought information about personal injury *727 suits. The entire focus of Keltner's voir dire was on the issue of negligence and personal injuries. Before asking the question about claims, he used cognates of injury forty-three times. The words "collection suit" and "debt" are never used. The fact that he again used the word "injury" in the question itself makes it altogether reasonable for a person to believe that he was asking for information about personal injury suits. K-Mart was free to ask the panel members if they had ever had a collection suit filed against them. Brines is, therefore, distinguishable.[5] Under the circumstances of this case, we simply cannot find that a clear question, requiring disclosure of prior collection suits, was asked.
K-Mart focuses not on the questioning during voir dire but on the post-trial hearing. It argues that even if the question was unclear, the trial court had authority to order a new trial because it determined that the juror understood the question and was not telling the truth at the post-trial hearing. In fact, the court never found that the juror understood the question. The court said merely:
The juror stated that he didn't remember the cases against him and when questioned further said he didn't think the question appled [sic.] to him and finally the juror stated that he thought the cases were too old.
The responses of the juror were so evasive that there remained little doubt that this was an intentional nondisclosure of claims by the juror.
K-Mart's claim of intentional non-disclosure centers on the juror's testimony at the post-trial hearing, where he was asked repeatedly about his consumer debts, his inability to pay them and his resulting bankruptcy. The record reveals that the juror was never even asked if he understood the question, only if he heard or recalled being asked the question at voir dire.
Second and more importantly, nothing that happens at a post-trial hearing will make an unclear question asked during voir dire clear. The question is either clear or it is not. If it is not, there has been no non-disclosure, intentional or otherwise. McHaffie, 891 S.W.2d at 829.
We find that the voir dire question did not clearly call for information regarding collection suits and hence there was no non-disclosure. The Circuit Court's order of July 27, 1999 is reversed and remanded with direction to enter judgment on the jury's verdict.
CRANDALL, J., concurs.
AHRENS, P.J., dissenting in separate opinion.
*728 CLIFFORD H. AHRENS, Presiding Judge, dissenting.
I respectfully dissent. I would affirm the trial court's grant of a new trial on the basis of intentional nondisclosure by a juror in response to questions on voir dire. The court conducted an evidentiary post-trial hearing at which the juror testified. After hearing the juror's testimony, the trial court specifically found: "The responses of the juror were so evasive that there remained little doubt that this was an intentional nondisclosure of claims by the juror."
"Appellate courts should be more liberal in upholding a grant of a new trial than in awarding a new trial when the trial court denies the motion." Bodimer v. Ryan's Family Steakhouses, Inc., 978 S.W.2d 4, 8 (Mo.App.1998). Our review of a grant of a new trial is "directed to whether the trial court abused its discretion in ordering a new trial." Id. An abuse of discretion occurs "when the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." State v. Albanese, 9 S.W.3d 39, 45 (Mo.App.1999)(quoting State v. Jackson, 969 S.W.2d 773, 775 (Mo. App.1998)).
"Nondisclosure, whether intentional or unintentional, can occur only after a clear question is asked on voir dire." Brines v. Cibis, 882 S.W.2d 138, 139 (Mo. banc 1994). "Intentional nondisclosure occurs: 1) where there exists no reasonable inability to comprehend the information solicited by the question asked of the prospective juror and 2) where it develops that the prospective juror actually remembers the experience or that it was of such significance that his purported forgetfulness is unreasonable." Williams v. Barnes Hosp., 736 S.W.2d 33, 36 (Mo. banc 1987). "The determination of whether concealment is intentional or unintentional is left to the sound discretion of the trial court." Id. The trial court's determination is given great weight and will not be disturbed on appeal absent an abuse of discretion. Brines, 882 S.W.2d at 139.
There is nothing in the record on appeal to indicate the trial court abused its discretion in granting the motion for a new trial or in finding intentional nondisclosure. The majority opinion does not decide the question of whether the trial court abused its discretion in finding that the juror's nondisclosure of collection suits by major corporations was intentional. Instead, the majority determines as a matter of law that the question asked of the juror about claims was unclear. The majority applies a standard of whether a lay person would reasonably conclude that the undisclosed information was solicited by the question. Without determining whether this is the proper standard, the record does not support the majority's conclusion that the question was unclear. The question specifically asked:
I have asked you about claims any of you have brought. Let me ask next if there are any instances where claims have been brought against you. Has anyone claimed you did something wrong that you are responsible for, an injury or something else, and filed a claim or a suit against you?
The juror did not testify that the question was unclear to him, or that he did not understand it included collection suits or claims. Instead, the juror testified that when he answered the question on voir dire, he did not remember these claims for debts. Specifically, he responded: "I didn't remember at the time there was some claims for debts back in the `80s that I took care of most of them. And when I got later on, then I paid them off and I *729 had to file bankruptcy...." He later testified:
Q .... you did say you did hear the question; is that correct?
A. Yes, I heard the question, but I didn'tI don't remember. I don't know if it was current or back many years or what.
Q. And you didn't raise your hand to ask whether or not they were talking about recently or back so many years; is that correct?
A. No, I didn't.
Q. So you were aware of these claims at the time the voir dire was going on?
A. I don't remember them. I just thought you was talking about the last couple of years or something. I didn't know it would be going back 10 years or 5 years or what or more.
Q. But you didn't ask, though?
A. No.
Q .... you were aware all the questions that were asked was asked of each and every juror and you were supposed to respond?
A. Yes.
Q. And you did not respond to that question?
A. I didn't remember the lawsuits because after that long a period, I more or less didn't. I did the best I could do to answer.
How the juror subjectively interpreted a question should not be dispositive on the issue of whether the question was clear. But it is apparent from the juror's testimony at the post-trial hearing that his nondisclosure had nothing to do with whether the question applied to collection claims as opposed to personal injury claims. He testified that his nondisclosure was because he didn't remember these claims and because he didn't know if the question asked for current or back claims. The trial court specifically found that testimony not credible and was "so evasive that there remained little doubt that this was an intentional nondisclosure of claims by the juror." I would defer to the trial court's determination of credibility because the trial judge was better able to observe the juror's demeanor during voir dire and the evidentiary hearing. The record supports the trial court's finding of intentional nondisclosure, which prejudiced the defendant. I find no abuse of discretion and would affirm the judgment of the trial court.
NOTES
[1] K-Mart does not contend that there was sufficient time to answer before plaintiff's attorney asked about the "lawsuit crisis."
[2] In 1980, the Missouri Division of Employment Security garnished the juror # 650's wages for $324.00 in overpaid benefits. In 1987, juror # 650 and his wife were sued by Central Hardware Company, Inc. for $379.87. In 1988, juror # 650 and his wife were sued by Ford Motor Credit Company, Inc. for $4,718.73. And in 1990 juror # 650, his wife and their daughter were sued by First City Financial Corporation for $720.80.
[3] Missouri is more sympathetic than is the federal system to a party seeking to overturn a verdict because of juror non-disclosure in that Missouri requires a new trial where intentional non-disclosure is found, regardless of prejudice. Heinen v. Healthline Management, Inc., 982 S.W.2d 244, 248 (Mo. banc 1998). The U.S. Supreme Court requires a showing of prejudice before a new trial may be ordered. The McDonough court, citing the "important investment of private and social resources" that a trial represents held that "it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination," and that "to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause." McDonough, 464 U.S. at 555-56, 104 S.Ct. 845.
[4] The juror here was never even asked if he understood the question or what he thought the question meant.
[5] The two dissenting judges in Brines argued that even the question "have you been a defendant in a lawsuit?" was not clear enough to unequivocally trigger the jurors' duty to respond. Judge Holstein explains why ordinary persons may not respond to such a question:
The reason potential jurors do not respond to such questions is that the popular notion of being a "defendant in a lawsuit" may not mean the same thing as it does to lawyers. To many ordinary people, being a "defendant in a lawsuit" means hiring a lawyer and going to court to defend some claim on the merits before a judge or a jury. To a venireperson asked that question, it may be perceived as seeking to know if the juror had contact with court personnel or if the potential juror had some experience or background with how a trial works. From that perspective, it seems irrelevant that one has received a summons. It is at least conceivable that an unsophisticated person served with a summons in a collection matter, traffic case, or the like, to which such person has no defense, would not understand himself to have been a "defendant in a lawsuit ."
Brines, 882 S.W.2d at 142. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/348761/ | 561 F.2d 1154
Gerald Isaac SASSOON, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 76-1160.
United States Court of Appeals,Fifth Circuit.
Oct. 26, 1977.
Gerald Isaac Sassoon, pro se.
Terry Sullivan (Ct.Appt.), Atlanta, Ga., for petitioner-appellant.
Dorothy T. Beasley, Asst. U. S. Atty., John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., for respondent-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before TUTTLE, GOLDBERG and RONEY, Circuit Judges.
TUTTLE, Circuit Judge:
1
Appellant, Gerald Isaac Sassoon, a federal prisoner, sought to have his guilty plea and sentence vacated pursuant to 28 U.S.C. § 2255. Relief was ultimately denied in the district court, and an appeal followed. Sassoon's initial appeal was dismissed for lack of jurisdiction by this Court on Mar. 30, 1977, Sassoon v. United States, 549 F.2d 983 (5th Cir. 1977), because the order from which the appeal was taken failed to comply with Fed.R.Civ.P. 58, which requires that "(e)very judgment shall be set forth on a separate document." In dismissing the appeal, this Court's opinion advised that either party was free to seek entry of a final judgment which complied with Rule 58 and to initiate a second appeal. Sassoon has done so, and this Court now reaches the merits of his § 2255 motion, reverses the order of the district court, and holds that Sassoon must be allowed to plead anew because the district court failed to comply with Rule 11 of the Federal Rules of Criminal Procedure at appellant's arraignment and sentencing.
I.
2
Because the procedural setting of this case is somewhat complex, the events leading up to this appeal must be set forth.
3
On May 31, 1974 appellant tendered a guilty plea to two separate indictments, charging him with a total of 19 counts of interstate transportation of falsely made and forged bank checks, in violation of 18 U.S.C. § 2314. On June 27, 1974 Sassoon's plea was accepted and he was sentenced to six years of imprisonment in accordance with a plea agreement which covered all counts.
4
Sassoon, acting pro se, later filed a "Notice of Motion to File Pursuant to 28 U.S.C. § 2255 and Motion for Transcript" on Mar. 21, 1975. Sassoon alleged a general noncompliance with Fed.R.Crim.P. 111 at his arraignment and sentencing and specifically complained that the district court had failed to inform him of the maximum sentence possible as a consequence of his guilty plea. The district court elected to treat this notice as the initiation of a § 2255 motion and ordered the government to respond. Several responses and traverses to responses followed, and Sassoon submitted a memorandum of law to support his contention that Rule 11 had been breached.2
5
At the close of these pleadings the district court, on Sept. 9, 1975, without a hearing, granted Sassoon's motion to vacate and ordered that he be permitted to plead anew. The district court found that Sassoon had been adequately informed of the maximum sentence possible under his plea agreement but held that the court had failed to establish a factual basis for the plea. On Sept. 16, 1975 Sassoon was rearraigned and pleaded not guilty to the 19 counts against him. Three days later the government filed a motion with the district court seeking reconsideration of the Sept. 9 order. In support of this motion the United States submitted a memorandum of law arguing that there had indeed been full compliance with Rule 11 in accepting Sassoon's original guilty plea and that the presentence report had established the requisite factual basis. Convinced now that his first order was erroneous, the trial judge, without a hearing or any further briefing from Sassoon, granted the government's motion, vacated the Sept. 9 order and "any proceedings resulting therefrom (including petitioner's rearraignment)," and denied Sassoon's § 2255 motion. This second order, dated Sept. 29, 1975, was not properly docketed until April 13, 1977, and Sassoon's appeal followed shortly thereafter.
6
In briefs submitted to this Court, both pro se and by his court-appointed attorney,3 Sassoon argues that because he had been rearraigned, the district court should be estopped from vacating the Sept. 9 order which had initially granted him relief. The government, on the other hand, argues that its motion for reconsideration was properly encompassed within either Fed.R.Civ.P. 60(b)(1) or 60(b)(6) because the Sept. 9 order was the result of judicial error.
7
This Court finds it unnecessary to answer either of these arguments directly. Rather, our recent decision in Sosa v. United States, 550 F.2d 244 (5th Cir. 1977), dictates the conclusion that the district court was prohibited by the terms of § 2255 from granting relief to Sassoon on Sept. 9 without first causing notice to be served upon the United States attorney and granting a hearing on the motion. Therefore, the Sept. 9 order was void, and all proceedings that followed from it were likewise void.
8
In Sosa, this Court interpreted § 2255 to require that a district court conduct a hearing before granting relief to a prisoner, although the statute permits the denial of relief to a petitioner when "the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. Applied to the situation here, the Sosa rationale invalidates the Sept. 9 order which granted relief to Sassoon, but leaves standing the Sept. 29 order in which relief was finally denied. As a result of this interpretation of the procedural imbroglio below, the Sept. 9 order, the rearraignment, and the government's motion for reconsideration are of no legal significance. The Sept. 29 order amounts to a finding by the district court that the record "conclusively showed" that each of Sassoon's contentions was without merit.
9
We further note that Sassoon initiated this motion pro se and without the aid of the transcripts of his arraignment and sentencing. Later in the pleadings, when these transcripts had been made available to him, Sassoon enlarged his allegations to include additional violations of Rule 11 and submitted a memorandum of law in support of his motion. Ample time was available to the government to respond to these grounds, both before the Sept. 9 order and after it. Moreover, the district court's Sept. 9 order of relief had rested on one of these later-presented grounds. This fact indicates that the district court had considered all grounds presented by Sassoon and not merely the earlier allegation concerning the maximum sentence. It further indicates that the United States should have been aware that Sassoon's motion had been broadly construed by the district court. Additionally, it persuades this Court that the Sept. 29 denial of relief represented a decision by the district court against the appellant on all grounds raised throughout the course of the pleadings. For this reason, Sassoon's appeal is construed as resting on allegations of multiple violations of Rule 11.
II.
10
While we concur in the district court's conclusion that Sassoon was adequately informed of the maximum sentence which he faced as a consequence of his guilty plea, we cannot agree that the district court exhibited that "utmost solicitude"4 which must be accorded to a criminal defendant who tenders a plea of guilty in a federal court. Rather, we find that the plea proceedings were flawed in two respects: both in a failure to demonstrate on the record that the appellant possessed an adequate understanding of the nature of the charges against him and in a failure to establish on the record that there was a factual basis for the plea.
11
In McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), the Supreme Court set out two purposes to be served by Rule 11: first, to assist the district court in making the constitutionally mandated determination that the defendant's guilty plea is voluntary, and, second, to provide a complete record at the time the plea is entered of factors relevant to the voluntariness determination. The Court made it clear that its decision sought to protect an accused who was unaware that his admitted conduct did not constitute the offense charged as well as to facilitate the handling of post-conviction attacks by assuring an adequate record for review. Without spelling out a particular format to be followed at a plea proceeding, the Supreme Court did require that the district court address the defendant personally "to inquire whether a defendant who pleads guilty understands the nature of the charge against him and whether he is aware of the consequences of his plea." Id. at 464, 89 S.Ct. at 1170. Moreover, the Court held that "a defendant is entitled to plead anew if a United States district court accepts his guilty plea without fully adhering to the procedure provided for in Rule 11." Id. at 463-64, 89 S.Ct. at 1169.
12
The twofold purpose of Rule 11 has been implemented in numerous decisions of this Court. Canady v. United States, 554 F.2d 203 (5th Cir. 1977); United States v. Coronado, 554 F.2d 166 (5th Cir. 1977); Sierra v. Government of Canal Zone, 546 F.2d 77 (5th Cir. 1977); United States v. Davis, 493 F.2d 502 (5th Cir. 1974) (per curiam); Monroe v. United States,463 F.2d 1032 (5th Cir. 1972). Rule 11 claims must be resolved solely on the basis of the arraignment and sentencing transcripts. United States v. Coronado, 554 F.2d 166 (5th Cir. 1977).
13
In the present case, the transcripts of Sassoon's arraignment and sentencing are totally devoid of any inquiry by the district court into the appellant's understanding of the charges against him. Nowhere in the transcripts is there any indication that the court informed the appellant of the elements of the offenses charged. The charges are referred to only by indictment numbers. Not even a summary reference is made to the nature of the offenses involved in the plea. While it is true that Sassoon may have known and understood the charges against him, both the Supreme Court and this Court have held that the district court must not proceed upon an assumption that the defendant has been adequately informed. The McCarthy Court stated that the district court must not act upon any assumptions not based on recorded responses to his inquiries. McCarthy v. United States, 394 U.S. at 467, 89 S.Ct. 1166.
14
Recently, in United States v. Coronado, 554 F.2d 166, 172 (5th Cir. 1977), this Court recommended that the district court assume that the accused is ignorant of the charges against him and said that the judge should inform the defendant of the basic acts required to establish guilt. The Coronado Court suggested that jury instructions might be a helpful source of simple statements which would serve to inform the defendant fully of the nature of the charges against him. Recognizing that "some aspects of legal argot and other legal concepts . . . are esoteric to an accused," id. at 172, the Court stated:
15
"(N)o matter how simple the charges, a district court should make the minor investment of time and effort necessary to set forth their meaning and demonstrate on the record that the defendant understands.
16
Developing on the record the defendant's understanding of the charges places at most an inconsequential burden on the district court. There is no excuse for failing to undertake procedures of such utility in ensuring voluntary and intelligent pleas that are susceptible to meaningful review. The rule 11 proceedings become more efficacious and meaningful in direct proportion to the explanatory details that are developed at such a hearing."
17
Id.
18
The plea proceedings were further flawed in that the record fails to reflect that the sentencing judge was "satisfied that there is a factual basis for the plea," as required by the terms of Rule 11. To assure that an overzealous defendant does not plead guilty unnecessarily, the judge must determine "that the conduct which the defendant admits constitutes the offense charged . . . ." McCarthy v. United States, 394 U.S. at 467, 89 S.Ct. at 1171, quoting from Notes of Advisory Committee on Criminal Rules. Rule 11 makes clear that the judge must "develop, on the record, the factual basis for the plea, as, for example, by having the accused describe the conduct that gave rise to the charge." Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971) (dictum) (emphasis in original). This Court has also required that the factual basis appear on the record, United States v. Davis, 493 F.2d 502 (5th Cir. 1974) (per curiam); Gilbert v. United States, 466 F.2d 533 (5th Cir. 1972) (per curiam), although it is also clear that the cases do not require a personal inquiry of the defendant, Davis v. United States, 470 F.2d 1128 (3d Cir. 1972) (per curiam). Indeed, an indictment may be used for this purpose if "factually precise enough and sufficiently specific to develop that (the defendant's) conduct on the occasions involved was within the ambit of that defined as criminal." Jimenez v. United States, 487 F.2d 212, 213 (5th Cir. 1973), cert. denied, 416 U.S. 916, 94 S.Ct. 1623, 40 L.Ed.2d 118 (1974). See also United States v. Johnson, 546 F.2d 1225 (5th Cir. 1977); United States v. Vera, 514 F.2d 102 (5th Cir. 1975). But see Reed v. United States, 471 F.2d 721 (5th Cir. 1973) (per curiam) (factual basis must be independent of indictment).
19
In its Sept. 29 order the district court acknowledged that "the record itself does not reflect a factual inquiry of the defendant at either the arraignment or the sentencing . . . ." It correctly noted that such a personal inquiry is not the only means of satisfying Rule 11. Indeed, the Advisory Committee's Notes accompanying Rule 11 list several means of satisfying the factual basis. One of these, the presentence report, was relied upon by the district court in its Sept. 29 order as the source of the factual basis. However, the district court failed to recognize that the factual basis, whatever its source, must appear clearly on the record. Reed v. United States, 471 F.2d 721 (5th Cir. 1973) (per curiam). It is true that the record does allude to the presentence report and makes clear that the judge was familiar with its contents. However, even if the presentence report, which is not part of the record on appeal, contained sufficient facts to satisfy Rule 11, there is no way for an appellate court to assure itself of that fact from an examination of the transcripts.5
20
At the arraignment, the district court informed Sassoon that acceptance of his guilty plea was conditional pending a review of the presentence report. At sentencing, the court referred to the contents of the report while discussing the sentence with Sassoon and his attorney. The following exchange occurred:
21
"THE COURT: Well, he's got some other problems, too. He feels like it's alright (sic) to rob banks. He says he's never robbed an individual but these conglomerate banks cheat the public anyway and he's relieving them of some of their problems and some of their money. And he doesn't even have any recollection of how much money he's obtained in this fashion.
22
Anybody whose thinking is that twisted has some problems that have to be untwisted. . . .
23
THE COURT: Well, I'm going to recommend that he be sent somewhere for treatment both for his apparently he has had some psychiatric aberrations. I don't know how he got the notion it was all right to rob banks.
24
THE DEFENDANT: Your Honor, could I say something about that?
25
THE COURT: Yes, Sir.
26
THE DEFENDANT: When I was having the discussion with Mr. Kendricks (probation officer), you know, I told him that some people use guns and, you know, robbing people and I felt that what I was doing was a lot better off than what they were doing, you know.
27
THE COURT: Well, Mr. Sassoon, con men take more money than all the bank robbers with their guns. The only thing is it may be a little safer.
28
And, incidentally, you've got a habit that's awfully hard to break. Getting something for nothing by a con game or passing bad checks or forged securities or something of that sort are the worst recidivists in the world. They are more likely to return to prison than any other type of prisoner except dope addiction and you've got both of those problems.
29
Now, if you're going to ever make anything of your life, it's about time you got started.
30
THE DEFENDANT: I realize that.
31
THE COURT: And, as long as your attitude follows this pattern, you're going to see very little of the light of day on the street, I'm afriad (sic).
32
This exchange falls short of the detailed examination demanded by Rule 11 and by our cases. In United States v. Frontero, 452 F.2d 406 (5th Cir. 1971), an F.B.I. agent read a report of the defendant's acts into the record. We vacated the sentence because the exchange between the Court and the agent did not set forth the elements of the crime charged. And in United States v. Johnson, 546 F.2d 1225 (5th Cir. 1977), the district court had the United States attorney relate the factual basis for the plea. However, the plea was later held invalid because an essential element of the crime had been omitted.
33
These cases make clear that this Court requires more than a vague allusion to the offense charged when the judge is on the verge of imposing sentence. Compliance with Rule 11 is mandatory and the defendant need not show further prejudice. Canady v. United States, 554 F.2d 203 (5th Cir. 1977). Therefore, the order of the district court denying relief is vacated, and the case is remanded to the trial court where Sassoon must be permitted to plead anew.
34
VACATED and REMANDED.
1
Because Sassoon's plea was made prior to the 1975 amendments to Rule 11, his case is controlled by the 1966 version of the rule. Goodwin v. United States, 544 F.2d 826 (5th Cir. 1977) (per curiam); United States v. Coronado, 554 F.2d 166 (5th Cir. 1977)
Rule 11 at that time provided:
"A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea."
2
The merits of his contention will be addressed in Part II of this opinion
3
On June 7, 1976, this Court appointed counsel for Sassoon, who was proceeding in forma pauperis
4
Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Although Boykin involved a state prisoner, the same principles guided the Supreme court in this decision as in cases construing Rule 11 for use in federal courts
5
Dictum in Christopher v. United States, 541 F.2d 507 (5th Cir. 1976), suggests that a presentence report can provide an adequate factual basis. However, the guilty plea challenged in Christopher was made in 1962, before Rule 11 was amended to require a factual basis | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1591623/ | Duane S. Jorgensen and Sharon A. Jorgensen, Plaintiffs-Appellants,
v.
James Barber, Gary Tesch, and Mary Tesch, Defendants-Respondents,
Water Works, Inc., Defendant-(In T.CT.).
No. 03-1590.
Court of Appeals of Wisconsin.
Opinion Filed: June 10, 2004.
Before Deininger, P.J., Dykman and Vergeront, JJ.
¶1 VERGERONT, J.
This appeal, the third in this case, arises out of a dispute between, on the one side, Duane and Sharon Jorgensen, shareholders in Water Works, Inc., and, on the other side, the four other shareholders and the corporation.[1] Following a remand from this court in Jorgensen v. Water Works, Inc., 2001 WI App 135, ¶¶2-4, 11, 246 Wis. 2d 614, 630 N.W.2d 230 (Jorgensen II), the circuit court conducted a trial and awarded Duane and Sharon $13,482 in damages on their claim for breach of fiduciary duty. The Jorgensens appeal, contending that the circuit erred in: (1) construing our decision; (2) allowing the defendants to relitigate the issue of reasonable compensation; (3) permitting the defendants` expert to testify; (4) denying their motion contending that the court`s award of damages was based on a misinterpretation of one of their exhibits; and (5) not awarding prejudgment interest.
¶2 We conclude that neither the law of the case from our decision in Jorgensen II nor issue preclusion prevented the circuit court from taking new evidence, including that of the defendants` experts, or from making its own findings on damages. We also conclude that the Jorgensens are not entitled to any greater damages than those awarded by the circuit court and are not entitled to prejudgment interest. We therefore affirm.
BACKGROUND
¶3 Water Works, Inc. has owned and operated a car wash since its incorporation in 1988.[2] Disagreements between the shareholders arose in 1996, causing Duane to resign as president and director and Sharon to be removed as vice-president and director. Since 1989, each shareholder had received regular payments from the corporation. After July 1996, Duane and Sharon did not receive any payments, although the other shareholders continued to receive the regular payments.
¶4 In the first trial to the court on the Jorgensens` claim for breach of fiduciary duty,[3] the court found that, although Duane`s conduct justified the defendants removing him after he resigned, they did not act appropriately in removing Sharon. In addition, the court determined, although it was appropriate to pay salaries to the officers and directors, once the majority shareholders had removed Duane and Sharon, they had an obligation to the two to pay themselves only reasonable amounts for the services they rendered as officers and directors. The court found the regular payments were not dividends, as contended by the Jorgensens, but were payments of salaries. The court also observed that there was evidence the defendants had performed work for the corporationin some cases, "substantial work." However, the court found that the defendants had not met their burden of proving that the amount they received as officers and directors was reasonable compensation for the services they rendered to the corporation. Nonetheless, the court did not proceed to determine what amount of salaries would have been reasonable because it concluded that a challenge to the reasonableness of the officers` and directors` salaries had to be brought as a derivative action.
¶5 The Jorgensens appealed, contending that the circuit court erred in concluding that their claim for improper distributions had to be brought as a derivative action rather than as a claim by them as individuals. Jorgensen II, 246 Wis. 2d 614, ¶9. We agreed with the Jorgensens, concluding that, "based on the facts found by the circuit court ... the individual defendants breached their fiduciary duties as directors of Water Works by violating the shareholder-rights of Duane and Sharon, which caused an injury that was primarily personal to them." Id. at ¶19. We therefore reversed and "remand[ed] for further proceedings consistent with this opinion." Id.
¶6 After remand, the defendants requested substitution under WIS. STAT. § 801.58(7) (2001-02)[4] and the Honorable John Finn was substituted for the Honorable Frederic Fleishauer. The Jorgensens filed a motion to exclude the testimony of the defendants` expert, Allen Guldan, asserting that his proposed testimony on the reasonableness of the defendants` compensation was barred by the doctrines of law of the case and issue preclusion. We do not find a decision by the court on this motion, but the Jorgensens in their brief assert the motion was denied, and Guldan did testify on this topic. The parties stipulated that all the exhibits received at the first trial would be part of the record for this trial. Judge Finn made clear that the purpose of this second trial was to determine the Jorgensens` damages for the breach of fiduciary duty.
¶7 The Jorgensens` theory of damages was that they were each entitled to a continuation from July 1996, as long as the corporation was profitable, to payments equal to those regular payments the other shareholders received. In support of this theory, Duane testified that in 1989 the six shareholders, all holding equal shares, had agreed to pay out the profits to the corporation by paying an equal amount each month to each shareholder, and these payments were not for work performed. Two of the shareholders, Gary Tesch and Mary Tesch, were employed by the corporation and they received salaries in addition to the equal monthly payments of profits. Duane acknowledged that the equal payments were reflected on the books as officer`s salaries and that he and the other shareholders had received W2s reflecting these payments, but, he testified, that was only because the loan agreement the corporation had with the Small Business Administration did not allow the corporation to pay dividends until the loan was paid off. According to the calculations presented by Duane Jorgensen and Kerry Karnitz, an accountant, Duane and Sharon were each entitled to approximately $109,000 through the end of 2002. In her testimony, Sharon agreed with Duane that the equal monthly payments were based on the excess money the corporation had after the bills were paid and not based on the work she and her husband did. However, she also testified they both spent a lot of time doing things for the corporation before July 1996she thought it was more than twenty-four hours a week each, and Duane did more than she.
¶8 The Jorgensens also presented evidence of the amount of state and federal taxes they had to pay because of the income from Water Works they reported on their K-1s. Because Water Works had elected to be taxed under subchapter S of the Internal Revenue Code, its income, losses, deductions, and credits were "passed through" to each shareholder on a pro rata basis. Thus, after July 1996, as well as before, the Jorgensens, like the other shareholders, were required to report as taxable income their share of the corporation`s pass-through income (subject to a certain limitation on losses). According to exhibit 105, the total taxes the Jorgensens had to pay because of the pass-through income from Water Works for the years 1996 through 2001 was $2723.
¶9 The defendants disputed the Jorgensens' characterization of the equal payments, each testifying that those payments were compensation for the work each performed as an officer of the corporation and describing their duties, both before and after 1996. They presented an expert who opined that the payments each had received both before and after 1996 were reasonable compensation for their duties. The defendants` primary position on damages was that the Jorgensens were not entitled to any payments from the corporation after July 1996 because they performed no services for the corporation after that date, and the amounts paid the other shareholders were reasonable compensation for the tasks they performed.
¶10 There was no evidence that the defendants received any of the pro rata pass-through income reported on their K-1s or any distribution to pay the taxes on that income.
¶11 At the close of testimony, Judge Finn issued an oral decision. He began by noting his disagreement with Judge Fleishauer`s finding that the payments from the corporation were not for work performed for the corporation but, rather, were a distribution of the profits related to Water Works. Judge Finn also disagreed with our decision to the extent we relied on that finding. However, Judge Finn expressed his understanding that he was bound by the findings Judge Fleishauer had made on liability and by our decision, as law of the case, and that was the context in which he reviewed the evidence presented on damages. In Judge Finn`s view, at this trial on damages the plaintiffs had the burden of proving the amount of their damages. Because it was undisputed that the Jorgensens were not performing any work for the corporation after July 1996 and the other defendants were, Judge Finn determined the Jorgensens were not entitled to payments from the corporation equal to the payments the others received. Judge Finn found that the payments each defendant received after July 1996 were reasonable compensation for the services they were performing as officers and directors.
¶12 However, Judge Finn found the Jorgensens had proved that they had "been damaged by not receiving a share of the profits in those years [in which there had been a profit]." Judge Finn found the amount of the corporation`s profits for each year based on exhibit 105. The Jorgensens` combined share through 1999, the court found, was $13,482. Because he was uncertain whether this court in Jorgensen II intended that he determine damages as of the date of the first trial, which was held in January 2000, or the date of this second trial, Judge Finn also made a finding on their share through 2001. Because of a loss in 2000, that second finding was less: $10,867.
¶13 After the court rendered its oral decision, but before judgment was entered, the Jorgensens filed a motion to "amend judgment" to $24,841. In support, they submitted Karnitz`s affidavit averring that the amounts on exhibit 105 listed under the column "K-1s" were not the actual profits of the corporation as reflected on the K-1s, but instead took into account the "plaintiffs` income from other sources, other deductions and their entire tax position." The corporation`s actual profits, the accountant averred, were contained in the exhibit of the Jorgensens` K-1s, and the total for the years 1996 through 1999 was $24,841.
¶14 The circuit court entered judgment for the Jorgensens for $13,482 on April 8, 2003. After the judgment was entered, the court held a hearing on the Jorgensens` motion to "amend judgment" and denied the motion. The court stated that it had reviewed the record and was satisfied that it had intended to find the damages it did.
DISCUSSION
1. Law of the Case
¶15 The Jorgensens first argue that in Jorgensen II we decided they were entitled to damages in an amount equal to the payments the other shareholders received as officers and directors. Therefore, they contend, under the doctrine of law of the case Judge Finn had to award them that amount.
¶16 Under the doctrine of law of the case, a decision on a legal issue by an appellate court establishes the law of the case, which is to be followed in all subsequent proceedings in the circuit court or on later appeal, unless the evidence on a subsequent trial was substantially different or unless controlling authority has since made a contrary decision of law applicable. State v. Stuart, 2003 WI 73, ¶¶23-24, 262 Wis. 2d 620, 664 N.W.2d 82. The applicability of the law of the case doctrine presents a question of law, which we review de novo. See State v. Wurtz, 141 Wis. 2d 795, 799-800, 416 N.W.2d 623 (Ct. App. 1987).
¶17 We do not agree with the Jorgensens` characterization of the legal issues we decided in Jorgensen II. Broadly speaking, in Jorgensen II we decided that the circuit court erred in concluding that the Jorgensens` claim for improper distributions from Water Works must be brought as a derivative action rather than as an individual claim. In order to make that decision, we had to decide whether the Jorgensens had established the elements for a claim of breach of a fiduciary duty: that the defendants had violated their duties as directors to treat each shareholder fairly, causing an injury to the Jorgensens that was primarily personal to them. Jorgensen II, 246 Wis. 2d 614, ¶¶8, 10, 16. Based on the facts as found by Judge Fleishauer, we concluded that the Jorgensens had established these elements. That, then, is the legal issue we decided, stated in both the beginning and the concluding paragraphs: "based on the facts found by the circuit court ... the individual defendants breached their fiduciary duties as directors of Water Works by violating the shareholder-rights of Duane and Sharon Jorgensen, which caused an injury personal to them." Id., ¶19.
¶18 In the context of discussing whether, based on the facts found by the circuit court, the Jorgensens had been treated unfairly by the defendants and suffered an injury primarily personal to them, we observed that this unfairness manifested itself in two ways: the cessation of the regular payments to them, which the others continued to receive, and the lack of receipt of any cash flow from the corporation to the Jorgensens, even though they had to pay taxes on their pro rata share of the corporation`s pass-through income. Id., ¶18. However, we did not, as the Jorgensens assert, decide what the proper measure of damages was for the breach. That issue was simply not before us. Moreover, a ruling that the Jorgensens were entitled as a matter of law to the same payments as the other directors after July 1996 would have been flatly inconsistent with the facts as found by Judge Fleishauer: he did not find that the defendants had done no work entitling them to officer`s or director`s salaries but, rather, that they had not established that the amount they received was reasonable compensation for the work they did.
2. Issue Preclusion
¶19 The Jorgensens next contend that the doctrine of issue preclusion precludes the defendants from relitigating whether the payments they received were reasonable compensation for the services they performed, because Judge Fleishauer had already decided they were not.
¶20 Issue preclusion, formerly known as collateral estoppel, limits the relitigation of issues that have actually been decided in a prior case. Paige K.B. v. Steven G.B., 226 Wis. 2d 210, 219, 594 N.W.2d 370 (1999). Although this doctrine is typically applied when the same issue arises in a subsequent action, we have held that it may apply to subsequent proceedings in the same action. Precision Erecting, Inc. v. M&I Marshall & Ilsley Bank, 224 Wis. 2d 288, 304, 592 N.W.2d 5 (Ct. App. 1998). In that case, we concluded the circuit court properly exercised its discretion in applying issue preclusion to prevent a party to an action, Nambe Mills, Inc., from litigating an issue in the same action that had already been decided adversely to it by summary judgment. Id. at 310. The motion for summary judgment had been brought by another party against a third party, and Nambe had chosen not to participate in the proceeding. Id. at 306.
¶21 Precision Erecting does not answer the question whether issue preclusion is available in the procedural context herewhere there is a second trial after remand from this court at which the circuit court hears additional evidence. We review this question de novo, because it requires us to decide whether, as a matter of law, the rationale underlying issue preclusion applies in a particular procedural context. See id. at 304.
¶22 The purposes of issue preclusion include preventing endless litigation, ensuring the stability of judgments, and guarding against inconsistent decisions on the same set of facts. Id. at 301-02. We conclude that none of these rationales are served by the application of issue preclusion in this procedural context.
¶23 Our decision in Jorgensen II clearly contemplated additional proceedings in the circuit court and did not preclude the circuit court from taking additional evidence. Therefore, it was within the discretion of the circuit court whether to decide damages based on the evidence presented in the first trial or to take additional evidence. Harvest Sav. Bank v. ROI Invs., 228 Wis. 2d 733, 738, 598 N.W.2d 571 (Ct. App. 1999) (quoting Fullerton Lumber Co. v. Torborg, 274 Wis. 478, 483, 80 N.W.2d 461 (1957) (circuit court may determine any matters left open by the mandate of an appellate court in the absence of specific directions and is vested with the discretion to take such action, not inconsistent with the order of the appellate court, as seems proper under the circumstances)).[5] There is no question that Judge Fleishauer did not find the damages to which the Jorgensens were entitled. His finding that the defendants had not shown that the amount of officer`s and director`s salaries was reasonable compensation for their services suggests that he may have found the Jorgensens were entitled to a pro rata share of the difference between reasonable compensation to the officers and directors and the amounts the officers and directors actually received; but he did not make that finding. Having properly decided to take additional evidence to decide damages, Judge Finn had evidence before him that Judge Fleishauer did not have on an issuedamagesthat Judge Fleishauer did not decide. None of the purposes of issue preclusion would be served by precluding Judge Finn from making his own determination based on the evidence before him on the reasonableness of the officers` and directors` salaries for the services they performed. Indeed, we do not see any logic in requiring him to find what amount of fees would be reasonable for their services while at the same time precluding him from finding that the amounts they were paid were reasonable.
3. Guldan`s Testimony
¶24 The Jorgensens' challenge to Judge Finn`s decision to allow Guldan to testify is based on their positions on the law of the case and issue preclusion. For the reasons we have already discussed, neither doctrine prevented Judge Finn from allowing additional evidence on damages, and that includes Guldan`s testimony.
4. Denial of Motion to Change the Amount of Damages
¶25 We next address the Jorgensens` challenge to the court`s denial of their motion to "amend judgment" by changing the amount of damages. They contend the court erred in its reading of exhibit 105 and that this error is clear from the record of the court`s oral decision on damages at the close of the trial. The defendants respond that the court`s decision on the amount of damages was reasonable and was based on the record.[6]
¶26 When we review a damage award, we sustain the award if there is any credible evidence that, under a reasonable view, supports the fact finder's determination on the amount of damages. See Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 446, 405 N.W.2d 354 (Ct. App. 1987). However, whether the court employed a correct measure of damages presents a question of law, which we review de novo. Schorsch v. Blader, 209 Wis. 2d 401, 405, 563 N.W.2d 538 (Ct. App. 1997).
¶27 Exhibit 105, on which the court based the damage award, is entitled "Duane and Sharon JorgensenFederal and State Taxes on Water Works, Inc. K-1s" and consists of four columns, "K-1s," "Year," "State Tax," and "Federal Tax," with six entries under each column for the years 1996 through 2001. Karnitz testified that exhibit 105 showed that the Jorgensens paid a combined federal and state tax of $2723 because of the inclusion of the K-1 profits on their tax returns. Karnitz did not explain in his testimony how he arrived at the figures in the "K-1s" column, but they are plainly not the amount of pass-through income reported on the Jorgensens` K-1s for those years. The K-1s for the years 1996 through 2001 were also admitted into evidence (exhibit 103) and the amounts are not the same.
¶28 We agree with the Jorgensens that it appears from the court`s initial explanation of the damage award that the court mistakenly believed the "K-1s" column of exhibit 105 was the amount of the pass-through income from Water Works reported on the Jorgensens` K-1s.[7] We also agree that the court`s explanation at the motion hearing of what it had initially intended appears inconsistent with its initial explanation.[8]
¶29 Moreover, we are unable to understand under what theory of damages the figures in the "K-1s" column of exhibit 105 are evidence of damages to the Jorgensens. These figures are not the amount of pass-through income reported on the K-1s that the Jorgensens did not receive, nor do the figures represent the amount of taxes the Jorgensens had to pay as a result of the reporting of that pass-through income. Rather, the figures represent, as we understand Karnitz's affidavit, the pass-through income on the K-1s, as adjusted to reflect the amount on which the Jorgensens actually had to pay taxes based on their overall tax position. Regardless of how the amounts in this column of exhibit 105 were arrived at, we can see no relation between these amounts and a monetary loss to the Jorgensens.
¶30 However, we do not agree with the Jorgensens that they are entitled instead to their share of the corporation`s profits as reflected on the K-1s. There is no evidence that the defendants received their share of the profits as reflected on their K-1s. Therefore, the Jorgensens are not being treated differently by not receiving their shares. The payments the defendants did receive, the court found, were reasonable compensation for their services. The Jorgensens have not appealed that finding as not based on any credible evidence: their only challenges to the finding were based on law of the case and issue preclusion, which we have already rejected. As the trial court recognizes, because the Jorgensens performed no services as officers or directors after July 1996, they are not being treated unfairly if those who did provide services received reasonable compensation.
¶31 We recognize that the effect of Judge Finn`s finding that the regular payments the defendants continued to receive were reasonable compensation, coupled with the lack of evidence that the defendants received any other distribution from the corporation, is tantamount to a determination that there was no breach of fiduciary duty. The basis for this tort, at least as pleaded and argued by the Jorgensens, is the distribution by the majority shareholders of payments to themselves that the Jorgensens did not receive after July 1996. Once it is determined that those payments were reasonable compensation for services performed, there is no tort. In other words, in this tort action, liability and damages turn on many of the same factual issues, as distinguished, for example, from a negligence claim for personal injuries, where the facts establishing liability are distinct from those establishing damages. This overlap of factual issues for liability and damages, coupled with the substitution of judges, has resulted in a determination after remand that is inconsistent with Judge Fleishauer`s finding that there was a breach of fiduciary duty, the finding on which we based our decision in Jorgensen II. Although we understand this is not what the Jorgensens anticipated when they prevailed in Jorgensen II, for the reasons we have explained earlier in this decision, Judge Finn did not err in taking additional evidence and making his own finding on whether there was reasonable compensation.
¶32 Although we do not understand the basis for the damages Judge Finn did award, we do not disturb that award because the respondents did not file a cross-appeal on that issue.[9] A cross-appeal is necessary if a respondent seeks a modification of an order or a judgment appealed. WIS. STAT. § 809.10(2)(b) (2001-02).[10]
5. Prejudgment Interest
¶33 We do not agree with the Jorgensens that they are entitled to prejudgment interest. The cases they cite do not support their position. Prejudgment interest may be recovered only when damages are either liquidated or liquidable, that is, there is a reasonably certain standard of measurement by the correct application of which one can ascertain the amount he or she owes. Teff v. Unity Health Plans Ins. Corp., 2003 WI App 115, ¶43, 265 Wis. 2d 703, 666 N.W.2d 38. One of the cases the Jorgensens cite expressly notes that generally in tort actions damages are not liquidated until they are determined. Nelson v. Travelers Ins. Co., 102 Wis. 2d 159, 163, 306 N.W.2d 71 (1981) (citing Zeidler v. Goelzer, 191 Wis. 378, 389, 211 N.W. 140 (1926). In any event, regardless of the type of action, damages are not liquid or liquidable when there are issues of fact regarding damages, Teff, 265 Wis. 2d 703, ¶50, and that was the case here.
¶34 Moreover, Nelson addressed post-verdict interest, not prejudgment interest. 102 Wis. 2d at 169-70. Without distinguishing between the two, the Jorgensens attempt to equate Judge Fleishauer`s decision to a verdict on damages. There is no merit to this argument. As we have already stated, there is no question that Judge Fleishauer did not determine damages.
CONCLUSION
¶35 We conclude that neither the law of the case from our decision in Jorgensen II nor issue preclusion prevented the circuit court from taking new evidence, including that of the defendants` experts, or from making its own findings on damages. We also conclude that the Jorgensens are not entitled to any greater damages than those awarded by the circuit court and are not entitled to prejudgment interest. We therefore affirm.
By the Court. Judgment affirmed.
NOTES
[1] Doreen Barber, one of the shareholders, has been dismissed as a defendant. The corporation is not participating in the litigation of the claim of breach of fiduciary duty against the individual defendants.
[2] The facts in this paragraph are taken from Jorgensen v. Water Works, Inc., 2001 WI App 135, ¶¶2-4, 11, 246 Wis. 2d 614, 630 N.W.2d 230 (Jorgensen II).
[3] This first trial followed our decision in Jorgensen v. Water Works, Inc., 218 Wis. 2d 761, 582 N.W.2d 98 (Ct. App. 1998) (Jorgensen I), in which we reversed in part the summary judgment entered against the Jorgensens.
[4] WISCONSIN STAT. § 801.58(7) (2001-02) provides:
(7) If upon an appeal from a judgment or order or upon a writ of error the appellate court orders a new trial or reverses or modifies the judgment or order as to any or all of the parties in a manner such that further proceedings in the trial court are necessary, any party may file a request under sub. (1) within 20 days after the filing of the remittitur in the trial court whether or not another request was filed prior to the time the appeal or writ of error was taken.
[5] We see no indication in the record that the Jorgensens took the position after remand that the issue of damages should have been decided without taking any additional evidence, although, as we have noted above, they did object to Guldan`s testimony.
[6] The parties apparently agree that the circuit court's denial of the motion was not based on declining to consider Karnitz's affidavit after the close of evidence, but, rather, on the court's conclusion after considering the affidavit that it had intended to make the award it did. This comports with our reading of the transcript. Therefore, we consider Karnitz's affidavit as part of the record in reviewing the circuit court's decision to deny the motion for reconsideration. To the extent the defendants may be arguing that we should not consider Karnitz's affidavit on this appeal, we disagree. As we have just noted, the circuit court apparently did so before denying the motion, and that was a proper exercise of discretion. It is clear from the record that the Jorgensens submitted exhibit 105 for the purpose of showing the taxes they had to pay because of the pass-through income from Water Works, which they never actually received. At trial, the defendants did not question how the amount of taxes was calculated. The Jorgensens were not asking for damages based on either the amounts in the "K-1s" column on exhibit 105 or on the actual amounts reported on their K-1s, nor did the defendants suggest either of those amounts was an appropriate basis for damages. It was not until the circuit court made its oral ruling based on the "K-1s" column on exhibit 105 that the Jorgensens had a reason to explain how the numbers in that column were arrived at.
[7] The court`s comments are as follows:
What are they entitled to? Exhibit 105 was a were the results from the inclusion of the K-1 on the tax return of the two plaintiffs, which is another interesting feature here that historically the corporation had issued K-1s for the distributive share of the profits and losses through a Subchapter S corporation and also did W-2s for what was agreed by everyone to be income at the time.
I think that the treatment that was unfair and that was inequitable by the defendants was the failure, the failure to actually distribute, even though they had excess they had excess income in 1997 and 1998, they didn`t distribute that to the, to the two plaintiffs. In 1997 there was a profit of $8816 and in 1998 there was a profit of $5484. The only other year that profit was shown on the books was 2001 when there was
And I don`t have it for 2002 because it was not in the record.
For 2001 it was $60.
And I`m looking at Exhibit 105 to, to determine those figures.
So I think that the plaintiffs are entitled to get I think the plaintiffs have proven to the Court`s satisfaction that they`ve been damaged by not receiving a share of the profits in those years, so what I did is I took the profit for 1997 that`s $8816 plus the profit for 1998 is $5484; subtract the loss for 1996, which is $126, and subtract the loss for 1999 at $692, and that total is $13,482.
[8] The court stated at the motion hearing:
I also reviewed the transcript of the Court's decision, and after reading Mr. Karnitz's testimony, I am convinced that what I did was the appropriate thing, because Mr. Karnitz convinced me that the inclusion of this income on a K1, which really didn't go to the plaintiffs, had a tax effect, and the net tax effect over those years was as is contained in Exhibit No. 105, and the rationale being, well, if they paid the tax, they didn't get the income, so let's give them the income to support that tax effect that they had, and I had the numbers written on Exhibit 105, and I think I used the right exhibit.
The other exhibit was what would have been the actual dollar amount, but that is not what the Court intended to do. The Court looked at how the plaintiffs were damaged because the other courts had determined that there already had been a wrong committed, and this Court had to determine the damages, and the wrong was the inclusion in the K1 causing a tax effect to the plaintiffs and what sum of money needs to go in here in order to support that tax effect. I think that is consistent with the decision that I made in January of this year, so I understand the plaintiffs' position, but that's not what the Court intended to do. The Court intended to use Exhibit No. 105, because I was convinced by the witness that that was a result that had happened to the plaintiffs and that it was caused by the wrongdoings of the defendants, so I am not going to change the judgment. I think the Court's decision was appropriate, and I think it is based on the facts, based on the evidence, and the motion is, therefore, denied.
[9] The defendants did file a cross-appeal attempting to raise the issue of whether the Jorgensens had to challenge the distributions to the other shareholders by means of a derivative action. We dismissed the cross-appeal on the ground that this issue had been decided in Jorgensen II and we had no jurisdiction to review it again.
[10] Our conclusion that the Jorgensens are not entitled to damages based on their share of the profits as reflected on their K-1s makes it unnecessary to address their argument that they are entitled to those profits through the date of the trial before Judge Finn and continuously into the future. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592650/ | 453 So.2d 397 (1984)
Norman MILLER, Petitioner,
v.
David C. NOLTE, Respondent.
No. 63336.
Supreme Court of Florida.
July 12, 1984.
*398 Clifford M. Miller of Miller & Miller, Vero Beach, for petitioner.
Robert Jackson of the Law Offices of Robert Jackson, Vero Beach, for respondent.
ADKINS, Judge.
This case is before us on discretionary review on the basis of conflict with Cape Cave Corp. v. Lowe, 411 So.2d 887 (Fla. 2d DCA), review denied, 418 So.2d 1280 (Fla. 1982). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The question presented is whether a taxpayer is foreclosed from contesting a tax assessment because of his failure to file an action within sixty days from the date the assessment was certified for collection.
This action was originally brought when the taxpayer petitioned the Indian River County Property Appraisal Adjustment Board, pursuant to chapter 194, Florida Statutes (1981), to contest the amount of the property assessment on his real estate. After a hearing, the board orally denied the taxpayer relief. On December 4, 1981, the taxpayer was mailed a written notice of the denial of his petition. On March 2, 1982, the taxpayer filed a complaint in the circuit court. The property appraiser filed a motion to dismiss the complaint alleging, among other things, that the statute of limitations, section 194.171(2), Florida Statutes (1981), prohibited taxpayer's suit. The court entered summary judgment in favor of the property appraiser on that basis. The taxpayer appealed to the Fourth District *399 Court of Appeal which affirmed the circuit court's order.
Section 194.171(2) provides:
No action shall be brought to contest a tax assessment after 60 days from the date the assessment being contested is certified for collection under s. 193.122(2).
The district court found the issue presented in this case had been resolved by this Court in Coe v. ITT Community Development Corp., 362 So.2d 8 (Fla. 1978). Miller v. Nolte, 427 So.2d 248 (Fla. 4th DCA 1983). In its brief opinion, the district court stated that Coe held that the sixty-day time limitation expressed in section 194.171(2) is a jurisdictional statute of non-claim rather than a statute of limitation. Id. at 248. Because the statute was found to be a statute of non-claim rather than a statute of limitation, the district court could not accept the taxpayer's contention that a deficiency in the property appraisal adjustment board's order should estop the appraiser from asserting the statute as an affirmative defense to taxpayer's claim. The court determined it was "compelled" to hold that the taxpayer's failure to act within the sixty-day period was a complete bar to the action. The district court recognized that its decision expressly and directly conflicted with Cape Cove Corp. v. Lowe, 411 So.2d 887 (Fla. 2d DCA), review denied, 418 So.2d 1280 (Fla. 1982), of the Second District Court of Appeal. The court even stated that it might well have opted for Cape Cove's solution because it appeared to be "eminently fair and equitable" if the court had had "the freedom to choose." 427 So.2d at 249. In reaching its conclusion, the district court stated:
[T]here is no escaping the fact that Cape Cave is wholly predicated on a chance remark from Williams v. Law, 368 So.2d 1285 (Fla. 1979). Admittedly, Williams does use the term "statute of limitations" in reference to section 194.171(2). We can only suggest that this passing reference is but another example of what the Supreme Court characterized as "an inartful use of the term." It is inconceivable that the Supreme Court would overrule a prior decision, issued only eight months before, without a word of explanation. Thus, we conclude that Coe expresses the law of Florida and is dispositive of this case.
Id. (citation omitted).
We must admit that an examination of the handful of cases which have dealt with the time limitation in section 194.171(2) do not provide an obvious answer to the issue in this case. In 1978 this Court rendered its decision in Coe. There we held that the statute was a jurisdictional statute of non-claim rather than a statute of limitations which would, of course, be available as an affirmative defense. We noted that this Court had consistently characterized the statute as a non-claim statute since Rudisill v. City of Tampa, 151 Fla. 284, 9 So.2d 380 (1942). We concluded that there was no reason to recede from our earlier decisions because the substance, purpose, and rationale for the statute had not been altered since Rudisill.
Eight months after Coe this Court decided Williams v. Law, 368 So.2d 1285 (Fla. 1979). In Williams we were faced with the issue of whether the time limitation in section 194.171(2) for seeking judicial review was a violation of article V, section 2(a) of the Florida Constitution which provides that this supreme court shall adopt rules for practice and procedure in all courts including time for seeking appellate review. In our opinion we stated that section 194.171(2) "constitutes a statute of limitations governing the time for filing an original action to challenge [the board's] decision." Id. at 1287.
We also referred to this section, formerly known as section 192.21, as a statute of limitations in our 1972 decision in Lake Worth Towers, Inc. v. Gerstung, 262 So.2d 1 (Fla. 1972). In that case we were faced with the issue of whether the taxpayer had lost his right to challenge an assessment because he had failed to exhaust his administrative remedies and to institute such a challenge within the sixty-day time limit set forth in section 192.21. The subject property *400 had been assessed for the value of both the realty and the improvements and the property, in fact, clearly qualified for an unimproved land assessment. We held that the running of the statute of limitations would not bar a challenge to an assessment where the assessment was void. Id. at 4. Chief Justice England, writing for the majority in Coe, recognized that the Court had referred to the statute as a statute of limitations in Lake Worth Towers but called it "an inartful use of the term." 362 So.2d at 9.
After a reexamination of these cases and the purpose and rationale underlying the statutory provisions concerning the review of tax assessments, we must retreat from our 1978 characterization of this statute as being a non-claim statute. We agree with the district court's observation that Cape Cove's solution is probably eminently fair and equitable. In Cape Cove the appellant corporation had filed a complaint challenging its property tax assessment more than sixty days after the tax roll had been certified for collection. The Court discussed in detail the statutory provisions concerning the duties of the property appraiser and the county property appraisal adjustment board (referred to as PAAB) and also those provisions pertaining to the rights and remedies available to an aggrieved taxpayer. The Cape Cove court noted that the property appraisal adjustment board had failed to timely perform a duty it owed to the taxpayer under section 194.032(5), Florida Statutes (1979). That section requires the board to render a written decision in each case except those cases where the complaint is withdrawn by the petitioner or is acknowledged by the property appraiser as correct. The decision is to contain findings of fact, conclusions of law, and reasons for the appraiser's determination and is to be issued within twenty days of the last day the board is in session. In Cape Cove the court concluded that the board was estopped from raising section 194.171(2) as a bar to the corporation's action because of its failure to give proper and timely notice of its decision to the taxpayer/corporation.
We find the rationale of Cape Cove persuasive. The court stated:
[S]ince our legislature has seen fit to require a written decision, complete with findings of fact, conclusions of law, and reasons for the decision, when a taxpayer does file a petition with the PAAB, it is clear to us that the legislature intended that the taxpayer have the benefit of that written decision before deciding whether to then seek judicial review. We consider it eminently reasonable, therefore, for a taxpayer to assume, as appellant appears to have assumed, that the PAAB will comply with section 194.032 and that it (the taxpayer) has at least forty days from the date of issuance of the PAAB's decision to file a complaint for judicial review. It is clearly unreasonable to require the taxpayer to check on the PAAB to make sure it has timely fulfilled its statutory responsibilities when the taxpayer has set in motion a process under which that taxpayer has a right to expect timely notice that the running of a statutory limitation period has begun.
... [T]he legislature made it clear in section 194.032 that the taxpayer is entitled to notification of the reasons for the denial as well as the bare fact of denial.
Accordingly, we hold that the PAAB is estopped to raise the statute of limitations contained in section 194.171(2) as a defense to appellant's action.
411 So.2d 889 (footnote omitted, emphasis in original).
In Rudisill this Court was faced with the question of whether a thirty-day time limit on when suit could be instituted deprived the taxpayer of due process. The Court held that it did not. In upholding the taxing act the Court stated:
Property owners are obliged to know that their property is liable for taxes. Property owners are afforded a method by law to appear before administrative officers and obtain a fair and just assessment of their property.
It is indispensable to government that taxes be assessed and collected. The *401 legislature is charged with the duty of providing a uniform and equal rate of taxation. Section 1, Article IX, Florida Constitution. The legislature is necessarily vested with power to enact necessary laws to secure a prompt collection of the annual tax. In the exercise of such powers they must not invade the constitutional rights of the property owner. Provision is made here however, for the owner to make return of his property and value same for taxation. He has further remedy to petition the equalization board for appropriate relief. He is allowed a minimum of thirty days from the final act of the administrative officers to resort to the courts if he feels aggrieved by the administrative taxing authorities. While the time may appear relatively short, nevertheless it cannot be said that the time fixed by the Legislature is so unreasonable as to amount to depriving him of his property without due process.
The legislature perhaps realized that unless the assessment was made final within a relatively short period of time the collection would be impaired thereby resulting in further inequalities in the burdens of tax payers to sustain the cost of government.
151 Fla. at 285-86, 9 So.2d at 380-81. The Rudisill Court's rationale clearly justifies the decision reached in that case. However, these same concerns do not likewise justify the decision we perhaps too hastily arrived at in Coe. The issue in Coe was not identical to the question answered in Rudisill. The issue of whether this statutory provision is determined to be a non-claim statute or a statute of limitations obviously involves different concerns and consequences to the taxpayer and different interests on the part of the state than the determination of the validity of imposing any time limitation at all in the review process. We were wrong to base our decision in Coe on the hypothesis that the substance, purpose and rationale used in Rudisill had not changed and were also applicable to the question presented in Coe, and we recede from Coe.
The requirement in section 194.032 that the board issue findings of fact and conclusions of law has been held to be a requirement of due process. Hollywood Jaycees v. Department of Revenue, 306 So.2d 109 (Fla. 1974). The non-fulfillment of the procedural prerequisites in the taxing scheme would deny the taxpayer of his right to due process were we to hold that section 194.171(2) is a non-claim statute. The taxpayer would be unable to raise any valid estoppel arguments to an assertion that he failed to file his action within sixty days of certification. Surely the legislature could not have intended such inequitable consequences. Persons have a right to due process when the protection and enforcement of their private rights are at issue. See Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Due process requires that section 194.171(2) be considered a statute of limitations. The board must be required to have performed its procedural prerequisites before the statute begins to run. The taxpayer has a right to expect timely notice that the running of a statutory limitation period has begun in this context. When the taxpayer has not been provided with a written decision of the board complying with section 194.032(2), as happened in Cape Cove and in the present case, he has not been put on record notice that the board may have certified the tax roll for collection.
Accordingly, we quash the decision of the district court and remand this cause with instructions to reverse the trial court's order of dismissal and remand the cause to the trial court for further proceedings consistent with this opinion.
It is so ordered.
BOYD, C.J., and ALDERMAN, EHRLICH and SHAW, JJ., concur.
OVERTON, J., dissents with an opinion in which McDONALD, J., concurs.
OVERTON, Judge, dissenting.
I dissent. In 1978, in Coe v. ITT Community Development Corp., 362 So.2d 8, 9 (Fla. 1978), this Court unanimously held:
*402 We have consistently held that the 60-day time limitation expressed in Section 194.171(2), and in its predecessor statutes, is a jurisdictional statute of non-claim rather than a statute of limitations. Rudisill v. City of Tampa, 151 Fla. 284, 9 So.2d 380 (1942); Chatlos v. Overstreet, 124 So.2d 1 (Fla. 1960). The Third District Court of Appeal has consistently followed our interpretation. Henry v. County of Dade, 149 So.2d 89 (Fla. 3d DCA), cert. denied, 155 So.2d 549 (Fla. 1963); Harvey W. Seeds Post No. 29 v. Dade County, 230 So.2d 696 (Fla. 3d DCA), cert. denied, 238 So.2d 420 (Fla. 1970); Chaves Construction Co. v. Metropolitan Dade County, 256 So.2d 545 (Fla. 3d DCA 1972); Blake v. R.M.S. Holding Corp., 341 So.2d 795 (Fla. 3d DCA 1977).
I find that the statute is a jurisdictional statute of non-claim and that has been the clear rule of law in this state for over forty years. Consistency and stare decisis mandate an affirmance of the district court of appeal opinion. There is no justifiable reason to overrule the multiple decisions that have clearly established the rule of law on this issue.
McDONALD, J., concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596739/ | 28 So. 3d 169 (2010)
Charles RUSSELL, Appellant,
v.
Deidra L. DOUGHTY, Appellee.
Charles Russell, Appellant,
v.
Benjamin Sky Clough, Appellee.
Nos. 1D09-1249, 1D09-1252.
District Court of Appeal of Florida, First District.
February 12, 2010.
*170 Edwin S. Zeitlin, for Appellant.
Deidra L. Doughty, pro se Appellee.
Benjamin Sky Clough, pro se, Appellee.
PER CURIAM.
Appellant Charles Russell appeals from two final judgments for protection against repeat violence entered against him. We reverse because the judgments are not supported by competent, substantial evidence.
Appellant lives next door to Doughty and Clough, who live together. Doughty and Clough filed separate petitions for injunctive relief against Appellant. The petitions alleged the same set of facts: On January 26, 2009, Appellant forcefully grabbed Doughty and Clough after an altercation between their dogs; and on February 2, 2009, Appellant repeatedly rang their doorbell and yelled obscenities and threats at them when they opened the door.
Section 784.046, Florida Statutes (2008), creates a cause of action for an injunction in cases of repeat violence. "Repeat violence" is defined as two incidents of violence, one of which must have occurred within six months of filing a petition for injunction. § 784.046(1)(b), Fla. Stat. "Violence" includes "any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person." § 784.046(1)(a), Fla. Stat. Competent, substantial evidence must support the trial court's finding that two incidents of repeat violence occurred. See Shocki v. Aresty, 994 So. 2d 1131, 1132 (Fla. 3d DCA 2008); Clement v. Ziemer, 953 So. 2d 700, 702 (Fla. 5th DCA 2007); Santiago v. Towle, 917 So. 2d 909, 910 (Fla. 5th DCA 2005).
The trial court must find that two incidents of violence occurred. See Terrell v. Thompson, 935 So. 2d 592, 593 (Fla. 1st DCA 2006). Appellant admits that the trial court correctly found that one incident of violence, battery, occurred. Appellant argues, and we agree, that a second incident of repeat violence did not occur. Regarding the alleged second incident, the testimony given at the injunction hearing was that Appellant yelled profanities and threats at Clough and Doughty. There is no indication that Appellant threatened to do violence, or that he took some action that could have created a well-founded fear that violence was imminent. See § 784.011(1), Fla. Stat. (2008) (defining assault as "an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent."). "Mere shouting and obscene hand gestures, without an overt act that places the victim in fear, does not constitute the type of violence required for an injunction." Sorin v. Cole, 929 So. 2d 1092, 1094 (Fla. 4th DCA 2006); accord Santiago, 917 So.2d at 911; Johnson v. Brooks, 567 So. 2d 34, 35 (Fla. 1st DCA 1990).
Neighbors should explore and exhaust a variety of alternatives to litigation before bringing a claim under section 748.046 for repeat violence. See Shocki, 994 So.2d at 1134. Accordingly, the trial court's final judgments for protection against repeat violence are REVERSED.
WOLF, WEBSTER, and THOMAS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597882/ | 818 So. 2d 477 (2002)
THE FLORIDA BAR, Complainant,
v.
Geneva Carol FORRESTER, Respondent.
No. SC00-813.
Supreme Court of Florida.
May 16, 2002.
*479 John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Staff Counsel, Tallahassee, FL; and Susan V. Bloemendaal, Chief Branch Discipline Counsel and Susan Gralla Zemankiewicz, Assistant Staff Counsel, Tampa, FL, for Complainant.
Henry P. Trawick, Sarasota, FL, for Respondent.
PER CURIAM.
Geneva Carol Forrester, a member of The Florida Bar, petitions this Court to review a referee's report recommending that she be found guilty of ethical breaches. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons that follow, we approve the referee's findings of guilt and recommended discipline.
FACTS
The Bar filed a complaint against Forrester alleging that she violated Rules Regulating the Florida Bar 4-3.4(a) ("A lawyer shall not ... unlawfully obstruct another party's access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act."), and 4-8.4(c) ("A lawyer shall not ... engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.") in the context of her representation of a construction company in civil litigation. The referee held a hearing and issued a report making the following findings:
[Forrester] represented Caladesi Construction Company, Inc., as one of the defendants in civil litigation initiated by Timothy Rice (Rice) d/b/a Palm Marsh Landscaping, (Plaintiff). Donald Hinrichs (Hinrichs) was the President of Defendant corporation, Caladesi Construction Company, Inc. Michael C. Berry, Sr. (Berry) was the attorney for the Plaintiff in the matter. On March 13, 1998, Berry conducted a deposition of Hinrichs, during which Berry showed Hinrichs Deposition Exhibit 5, a two (2) page document printed on green paper. [Florida Bar Exhibit No. 2] Exhibit 5 was an original copy of a Subcontract Agreement between Caladesi and Rice, with original signatures. During this deposition, both Hinrichs and [Forrester] expressed concern that Exhibit 5 belonged to Hinrichs, and [Forrester] indicated that they wanted the document. Later during the deposition, [Forrester] asked Berry to locate certain documents. When Berry turned around to retrieve the documents from behind his seat, Hinrichs removed Exhibit 5 from the table and handed it to [Forrester]. After Hinrichs handed Exhibit 5 to [Forrester], she moved it below the table and placed it to her right, either in or near her briefcase on the floor. The court reporter, Kaylynn Boyer (Boyer), observed the removal of Exhibit 5 from the table, and during a break, communicated this information to Berry's secretary, who shortly thereafter *480 advised Berry. Berry attempted to schedule an emergency hearing, but when unable to do so, he ordered a second court reporter to come to the deposition. After ordering the second court reporter, Berry returned to the deposition room, resumed questioning Hinrichs, and attempted to locate Exhibit 5. The deposition transcript, reflects the following discourse:
Berry: Let's see, I had his contract here, where is that contract?
[Forrester]: I have a copy here. I don't know that I have all the discovery with me. Let me see.
Berry: I'm looking for the Palm Marsh contract, the green one.
[Forrester]: Hm-mm.
Berry: That was exhibit, I'll tell you which one it was.
[Forrester]: I didn't bring my box with me so I don't know that I have a copy right now. I'm seeing if I did.
* * *
Berry: Exhibit five. All right. So you don't have it?
[Forrester]: I'm not seeing it. I had a copy but I know when you filed the complaint didn't you attach it? That would be the easiest way.
Berry: All right.
[Forrester]: Let me look back there. Yeah, that's it, isn't it, a copy of it?
After the second court reporter, Beth Ann Erickson (Erickson) arrived, Berry asked Erickson to take over for the first court reporter, and inquired of [Forrester] as follows:
Berry: I would like to ask Geneva Forrester if she could show me the contract, Exhibit 5, that she has with her documents, please.
[Forrester]: I have this one, which is a copy, and I have the original.
Berry: Okay. Do you have the green original Exhibit 5?
[Forrester]: Yes. Sure.
Berry: Okay. Where is it?
[Forrester]: Right here.
[Forrester] retrieved Exhibit 5 from beside or near her briefcase, which was located on the floor to her right, and handed it to Berry.
Subsequent to the March 13, 1998 deposition, a Motion for Sanction, based in part upon [Forrester's] conduct at the deposition, was heard by Judge James R. Case, Sixth Judicial Circuit. After a hearing, Judge Case signed a July 27, 1998 Order Denying Defendant's Motion to Strike and Granting in Part and Denying in Part Plaintiff's Motion for Sanctions. [Florida Bar Exhibit No. 3] This order included the following finding: "Ms. Forrester has not presented a satisfactory explanation to the Court for her conduct; therefore, the Court must refer the matter to the Florida Bar."
Based upon the evidence presented at the hearing in this matter, the referee found that Forrester knowingly and intentionally removed and concealed evidence (exhibit 5) for a period of time at the March 13, 1998, deposition. The referee further found that Forrester was given more than one opportunity to return exhibit 5, but did not do so until she was confronted by opposing counsel. Although Forrester expressed the belief that exhibit 5 belonged originally to her client, the referee found that Forrester's belief did not constitute a defense to her taking of the document, as lawful remedies were available for the retrieval of the document. Likewise, the referee found that the availability of copies to the parties did not constitute a defense for Forrester's taking exhibit 5, as it was documentary evidence in a deposition. Accordingly, the referee recommended that Forrester be *481 found guilty of violating rule 4-3.4(a) ("A lawyer shall not ... unlawfully obstruct another party's access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act.").
Additionally, the referee found that Forrester made an intentional misrepresentation concerning the location of exhibit 5 when asked whether she had it. The referee found that, although Forrester truthfully replied, "I'm not seeing it," Forrester's answer was intended to mislead because she in fact knew where the document was located and failed to disclose that information to Berry. As such, the referee recommended that Forrester be found guilty of violating rule 4-8.4(c) ("A lawyer shall not ... engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.").
The referee recommended that Forrester be suspended for sixty days to be followed by one year of probation during which Forrester must attend, and successfully complete, The Florida Bar's ethics school. The referee found no mitigating factors. In aggravation, the referee found a prior disciplinary history,[1] dishonest or selfish motive, and substantial experience in the practice of law. The referee also recommended that the Bar be awarded $1,335.15 in costs.
Forrester has petitioned this Court to review the referee's report, challenging the referee's recommendations as to guilt, the referee's recommended discipline, and various procedural rulings made or actions taken by the referee.[2]
ANALYSIS
Forrester first challenges the referee's finding that her conduct violated rule 4-3.4(a). Forrester raises three claims that rule 4-3.4(a) does not apply to her conduct at the deposition. We find each of her arguments to be without merit, and address them individually.
First, Forrester argues that rule 4-3.4(a) was not intended to proscribe the concealment of evidence where multiple copies are available or when the concealment lasts for only a short period of time. However, rule 4-3.4(a) specifically prohibits the concealment of a document that "the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding." The rule does not distinguish the situations where multiple copies of documents are available or when the concealment lasts for only a short duration. The comment to rule 4-3.4(a), although not binding authority, supports our finding that the availability of copies of evidence is irrelevant to whether concealment of an original violates the rule. The comment provides, in pertinent part:
The procedure of the adversary system contemplates that the evidence in a case is to be marshalled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.
Documents and other items of evidence are often essential to establish a claim or defense. Subject to evidentiary *482 privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed, or destroyed.
R. Regulating Fla. Bar 4-3.4(a), cmt. The comment notes that one of the purposes of rule 4-3.4(a) is to secure fair competition in the adversary system. Fair competition is secured by ensuring that a party's right to obtain relevant evidence is not frustrated by the concealment of such evidence. We see no reason to distinguish the situation where multiple copies of a document are available or when the concealment lasts for only a short period of time. Thus, we conclude that in the interest of promoting fair competition both the availability of multiple copies and the duration of such concealment do not, under the circumstances of this case, negate the specifically prohibited conduct of concealing a relevant document. Further, we conclude that availability of multiple copies in the instant case does not provide a substitute for the original document that Forrester was found to have concealed.
Secondly, Forrester argues that rule 4-3.4(a) does not apply to her conduct at the deposition because exhibit 5 was not actual evidence because no trial had occurred. She argues that exhibit 5 was merely relevant to the case. We find that this argument supports, rather than negates, a finding that Forrester violated rule 4-3.4(a). Under the rule, a lawyer may be disciplined for wrongfully concealing a document that "the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding." R. Regulating Fla. Bar 4-3.4(a). The comment to the rule speaks in terms of "marshalling evidence" and "obtaining evidence through discovery," terms generally associated with pre-trial procedures. Therefore, a trial need not occur before a document is considered relevant evidence under the rule. Forrester admits that exhibit 5 was a relevant document in this case and was foreseeable as trial evidence.[3] We conclude that Forrester is subject to discipline under the rule for concealing exhibit 5.
Lastly, Forrester argues the referee erred in finding that she "removed" exhibit 5. She claims that exhibit 5 was handed to her by Hinrichs and thus, she did not remove it from the table. The referee's determination that Forrester removed exhibit 5 is a finding of fact. Such findings carry a presumption of correctness and should be upheld unless they are clearly erroneous or there is no evidence in the record to support them. See Florida Bar v. Roberts, 789 So. 2d 284, 287 (Fla. 2001). We conclude that although Forrester may not have physically removed exhibit 5 from the table, she did participate in its removal. Kaylynn Boyer, the court reporter who saw the removal, described the incident as follows:
And as I turned back around to wait, I see Mr. Heinrich [sic] reach with his left hand, put it in his right hand, and hand it over to Ms. Forrester who then took it, sat it in her lap, scooted the chair forward and bent down, and I couldn't see because she was under the table see what she was doing with it and when she came up it was not in her lap nor in her hand or on the table.
We conclude that this testimony represents competent, substantial evidence that *483 Forrester removed exhibit 5, placing it within her possession.
Regardless of how Forrester defines the way she received the document, a violation of rule 4-3.4(a) depends on whether the attorney concealed, not removed, the relevant evidence. We conclude that competent, substantial evidence exists in the record below to support the referee's finding that Forrester concealed exhibit 5. Therefore, we approve the referee's recommendation that Forrester be found guilty of a rule 4-3.4(a) violation.
Forrester next challenges the referee's finding that she violated rule 4-8.4(c). This rule provides that "[a] lawyer shall not ... engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." This Court has held that "[i]n order to find that an attorney acted with dishonesty, misrepresentation, deceit, or fraud, the Bar must show the necessary element of intent." Florida Bar v. Fredericks, 731 So. 2d 1249, 1252 (Fla.1999). Further, this Court has held that "in order to satisfy the element of intent it must only be shown that the conduct was deliberate or knowing." Id. A finding of intent is a factual finding that must be upheld if there is evidence in the record below to support such a finding. See Roberts, 789 So.2d at 287.
In the present case, the referee found that Forrester made an intentional misrepresentation concerning the location of exhibit 5, when asked whether she had it. The referee found that, although Forrester truthfully replied, "I'm not seeing it," Forrester's answer was intended to mislead because she in fact knew where the document was located and failed to disclose that information to attorney Berry. The court reporter witnessed Forrester take exhibit 5 from Hinrichs, place it on her lap, and put it somewhere under the table. Forrester denied "seeing" where exhibit 5 was located until Berry brought in a second court reporter and directly asked Forrester to show him the document. Forrester testified that she immediately gave Berry the document at that time. We conclude that the record supports the referee's finding that Forrester intentionally misrepresented to Berry her knowledge of the whereabouts of exhibit 5. Accordingly, we approve the referee's recommendation that Forrester be found guilty of violating rule 4-8.4(c).
Finally, Forrester challenges the referee's recommendation that she be suspended for sixty days to be followed by one year of probation. Forrester argues that her conduct warrants no more than a public reprimand. This Court has held that "[i]n reviewing a referee's recommendation of discipline, this Court's scope of review is somewhat broader than that afforded to findings of facts because, ultimately, it is [the Court's] responsibility to order an appropriate punishment." Florida Bar v. Maier, 784 So. 2d 411, 413 (Fla. 2001). Generally speaking, however, this Court "will not second-guess a referee's recommended discipline as long as that discipline has a reasonable basis in existing caselaw." Florida Bar v. Temmer, 753 So. 2d 555, 558 (Fla.1999). In making this determination, this Court considers not only caselaw but also the Florida Standards for Imposing Lawyer Sanctions. See id.
Under the Florida Standards for Imposing Lawyer Sanctions, we conclude that suspension is appropriate in this case. See Fla. Stds. Imposing Law. Sancs. 6.12 ("Suspension is appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action."); Fla. Stds. Imposing Law. Sancs. 7.2 ("Suspension is appropriate when a lawyer *484 knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system.").
Although Forrester argues that a suspension is too harsh and that a public reprimand should be imposed, we conclude that the applicable standards do not support her argument. Under standard 6.13, a public reprimand is appropriate only when an attorney engages in negligent conduct. See Fla. Stds. Imposing Law. Sancs. 6.13 ("Public Reprimand is appropriate when a lawyer is negligent either in determining whether statements or documents are false or in taking remedial action when material information is being withheld."). However, the referee found Forrester's misconduct to be intentional, and, as previously discussed, there is competent, substantial evidence in the record to support this finding. Thus, Forrester's intentional misconduct does not fall within the scope of conduct justifying a public reprimand under standard 6.13. Further, this Court has held that a "public reprimand should be reserved for isolated instances of neglect, lapses of judgment, or technical violations of trust accounting rules without willful intent." Florida Bar v. Schultz, 712 So. 2d 386, 388 (Fla.1998); see also Florida Bar v. Rogers, 583 So. 2d 1379, 1382 (Fla.1991). We find that Forrester's misconduct was neither an isolated instance of neglect nor a lapse of judgment because she intentionally concealed exhibit 5 and misrepresented its whereabouts when asked.
Further, we conclude a sanction harsher than a public reprimand should be imposed based on the fact that Forrester has three prior disciplinary actions. In 1994, Forrester received an admonishment for violating rule 4-1.7(a) (Representing Adverse Interests). See Florida Bar v. Forrester, No. 80,442 (unpublished order) (Fla. Apr. 21, 1994). In 1994, Forrester received twenty-four months' probation for violating rule 4-1.16(d) (Protection of Client's Interest). See Florida Bar v. Forrester, 659 So. 2d 273 (Fla.1995) (table). Finally, in 1995 Forrester received a ninety-day suspension for violating rule 4-1.5(a) (Illegal, Prohibited, or Clearly Excessive Fees) and a public reprimand for violating rules 5-1.1(g) (Disbursement Against Uncollected Funds) and 5-1.2(c)(1)(A)(B) (Minimum Trust Accounting Procedures). See Florida Bar v. Forrester, 656 So. 2d 1273 (Fla.1995). In assessing discipline, "this Court also considers prior misconduct and cumulative misconduct as relevant factors, and deals more severely with cumulative misconduct than with isolated misconduct." Florida Bar v. Williams, 753 So. 2d 1258, 1262 (Fla.2000).
Forrester cites this Court's opinion in Florida Bar v. Burkich-Burrell, 659 So. 2d 1082 (Fla.1995), to support her argument that a sixty-day suspension is too severe. In Burkich-Burrell, the Court imposed a thirty-day suspension for attorney Burkich's failure to disclose material facts to opposing counsel where she represented her husband, Burrell, in a personal injury action. See id. at 1084. The Court found that Burkich had firsthand knowledge of the nondisclosed material facts which contradicted the responses made in the interrogatories by her husband. See id. Burkich never reviewed or amended her husband's interrogatories. See id.
Although the conduct in Burkich-Burrell is somewhat analogous to the present case, we conclude that there are some important distinguishing characteristics between these two cases. In imposing discipline, this Court in Burkich-Burrell stated that "while Burkich is guilty of serious misconduct, in light of the unique facts of this case and the mitigating factors *485 present, a thirty-day suspension is sufficient discipline." Id. In mitigation, the referee had found (1) Burrell's alcohol abuse, (2) Burrell's physical and mental abuse of attorney Burkich, (3) Burkich's lack of prior misconduct, and (4) Burkich's lack of experience in personal injury litigation. See id. at 1083. On the other hand, in the instant case the referee did not find any mitigating factors. Further, in the present case, the referee found the aggravating factor of a prior disciplinary history, which was not present in Burkich-Burrell. We conclude that in light of Forrester's history of misconduct and the lack of mitigation found by the referee, the instant case is distinguishable from Burkich-Burrell and imposition of a harsher sanction is thus appropriate. See generally Williams, 753 So.2d at 1262. Therefore, based on the Standards for Imposing Lawyer Sanctions and Forrester's cumulative misconduct, we approve the referee's recommendation of a sixty-day suspension, to be followed by one year of probation.
CONCLUSION
Accordingly, we approve the referee's report in full. Geneva Carol Forrester is hereby suspended from the practice of law for sixty days followed by probation for one year. The suspension will be effective thirty days from the filing of this opinion so that Forrester can close out her practice and protect the interests of existing clients. If Forrester notifies this Court in writing that she is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Forrester shall accept no new business from the date this opinion is filed until the suspension is completed. Judgment for costs in the amount of $1,335.15 is entered against Forrester and in favor of The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida 32399, for which sum let execution issue.[4]
NOTES
[1] The referee found that Forrester had been subject to disciplinary action on three prior occasions.
[2] We have considered Forrester's procedural challenges, and we reject them without further discussion.
[3] In her reply brief, Forrester stated:
Certainly, the exhibit could have been admitted into evidence in due course. That eventuality did not occur. It was certainly relevant, but it was not the only available copy.
[4] We find no merit to Forrester's challenge to the referee's award of costs to the Bar. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597915/ | 818 So. 2d 111 (2001)
James T. LYTAL, III
v.
Mary Lynn LYTAL.
No. 2000 CA 1934.
Court of Appeal of Louisiana, First Circuit.
November 14, 2001.
Writ Denied March 8, 2002.
*112 Mitchell J. Hoffman, New Orleans, for Appellant Plaintiff James T. Lytal, III.
Johnny X. Allemand, Thibodaux, Paul M. Hebert, Jr., Baton Rouge, for Appellee Defendant Mary Lynn Tytal.
Before: FOIL, PETTIGREW and KLINE[1], JJ.
FOIL, Judge.
In this appeal, James T. Lytal, III, challenges the issuance of a preliminary injunction in favor of his ex-wife, Mary Lynn Lytal, in a community property partition proceeding. We affirm.
FACTS AND PROCEDURAL BACKGROUND
James and Mary Lynn Lytal were married in 1960 and divorced by judgment dated August 29, 1997. The community existing between them was terminated retroactive to the filing of the divorce petition, January 16, 1997. The community assets include various ocean-going vessels and certain corporations that own fleets of vessels used in the supply boat business. At issue here is a community-owned corporate entity called Lytal Offshore, Inc., which was created during the marriage. Lytal Offshore is a community asset owned in indivision by the parties, but controlled solely by Mr. Lytal, in whose name 100 percent of the corporation's stock was issued. This company owned a motor vessel named the M/V James T. Lytal, III. The vessel was sold in December, *113 1999 for a net sales price of $440,000. These proceeds form the basis of the instant dispute.
When Mrs. Lytal learned of the sale of the vessel, she requested that Mr. Lytal consent to some type of protective measures with regard to the proceeds. Mr. Lytal refused to take any of these measures, so Mrs. Lytal filed a rule to show cause why a preliminary injunction should not issue in the partition proceeding barring Lytal Offshore from using any of the funds realized from the sale of the vessel.
After a hearing, the trial court issued a preliminary injunction to Mr. Lytal, enjoining him, his agents and officers of Lytal Offshore from disposing of, concealing, alienating or encumbering the net proceeds from the sale of the M/V James T. Lytal, III. This appeal by Mr. Lytal followed.
On appeal, Mr. Lytal urges that the trial court erred in issuing a preliminary injunction in this matter. Specifically, he argues that the funds from the sale of the vessel are not community property. He further asserts that the injunction was issued against persons, e.g., officers of Lytal Offshore and the entity Lytal Offshore, who were not parties to this suit and who were not served with notice or afforded due process. Mr. Lytal also asserts that an injunction is improper in this case because the asset had already been sold and the cash proceeds used by the corporation in the normal course of business. Finally, he claims it was error to issue the preliminary injunction because Mrs. Lytal failed to prove that she would suffer irreparable injury. Alternatively, Mr. Lytal argues that if an injunction was warranted, the court erred in not requiring Mrs. Lytal to post a bond.
DISCUSSION
Under Louisiana law, property of married persons is generally characterized as either community or separate. La. Civ. Code art. 2335. The classification of property as separate or community is fixed at the time of its acquisition. Biondo v. Biondo, 99-0890, pp. 3-4 (La.App. 1 Cir. 7/31/00), 769 So. 2d 94, 99. The trial court's findings regarding the nature of the property as community or separate are factual determinations. As such, they are governed by the manifest errorclearly wrong standard of review. Id., 99-0890 at p. 4, 769 So.2d at 99.
In a divorce proceeding, a spouse may obtain an injunction restraining the disposition of community property. La. R.S. 9:371. Either party to an action for divorce may obtain injunctive relief without posting bond. Further, irreparable injury need not be shown. La.Code Civ. P. art. 3944 and comments thereto. Jurisprudence has held that injunctive relief may be allowed as long as the necessity for it continues, regardless of whether it was requested prior to or after the judgment of divorce. Hendrick v. Hendrick, 470 So. 2d 449, 457 (La.App. 1st Cir.1985).
In this case, the trial court found that Lytal Offshore, among numerous other corporations, is a community asset. Specifically, the court found that in cases where all of the stock of a corporation is owned solely by the community, the assets of the corporation are community property. The court noted there is no precedent for this conclusion, but it found slender support in the case State Bank & Trust Co. of Golden Meadow v. Boat "D.J. Griffin", 755 F. Supp. 1389 (E.D.La.1991).
In State Bank, several companies were formed and incorporated during the existence of the Griffins' marriage. Citing La. Civ.Code arts. 2336 and 2338, the federal district court stated that the assets of those companies were community property *114 and, as such, the Griffins each owned an undivided one-half interest in the assets of the companies. Id., 755 F.Supp. at 1397. Considering the language of State Bank, it cannot be said that the trial court committed manifest error in holding that the assets of Lytal Offshore are community property.
Based on the testimony presented at the hearing on the injunction, the trial court found that Mr. Lytal had engaged in a "pattern of preparation" for the divorce by taking the corporations belonging to the community and isolating Mrs. Lytal from the management of the family operations. The trial court noted its hesitancy to "enter the internal workings of a corporation" in a community property dispute, but stated it could not "allow the defendant husband to consume the corporate assets to the detriment of the community." The trial court found that Mrs. Lytal demonstrated that Mr. Lytal was "systematically removing funds from the corporate structures." The court stated, "[t]he wife is entitled to half the community assets. Unless the courts have the power to stop the dispersal of funds from corporate structure into the pockets of the husband it would leave the wife powerless in a divorce action." Accordingly, the trial court found Mrs. Lytal was entitled to an injunction prohibiting Mr. Lytal from disposing of the cash assets of the corporation.
The trial court was correct. As stated above, based on the record before us, the trial court was not clearly wrong in concluding that the proceeds from the sale of a motor vessel belonging to Lytal Offshore is community property that may be involved in the partition. The evidence presented at the hearing supports the court's conclusion that Mr. Lytal, pursuant to a "preplanned divorce strategy," was systematically removing funds from the corporate structures. To prevent the further erosion of community assets, we conclude the trial court properly afforded protection to Mrs. Lytal by means of injunctive relief pending a final partition of the former community. Under La. R.S. 9:371 and La.Code Civ. P. art. 3944, a preliminary injunction was properly issued without the need to post a bond or show irreparable injury.
Concerning the issues of notice and due process, there were no notice violations or due process problems. There is strong evidence in the record that Mrs. Lytal pierced the "corporate veil" to reveal that Lytal Offshore is indistinguishable from Mr. Lytal.
The judgment of the trial court issuing a preliminary injunction enjoining Mr. Lytal from disposing of the net proceeds from the sale of the motor vessel M/V James T. Lytal, III, is affirmed. We remand the matter to the trial court for completion of the community property partition. As noted by the trial court, we are aware that the total net proceeds no longer remain in the bank because various corporations continued to operate using the funds as an injection of cash. Any determination as to what portion of the sale proceeds should or should not be replenished is a matter to be determined by the trial court on remand. Costs of this appeal are assessed to appellant.
AFFIRMED; REMANDED.
PETTIGREW, J., concurs and assigns reasons.
KLINE, J., concurs in part and dissents in part with reasons.
PETTIGREW, J., concurring.
I am of the opinion that this court should not rely upon State Bank & Trust Co. of Golden Meadow v. Boat "D.J. Griffin", *115 755 F. Supp. 1389 (E.D.La.1991) for precedent.
A corporation in Louisiana is a juridical person. Louisiana Civil Code article 24 provides as follows: "There are two kinds of persons: natural persons and juridical persons. A natural person is a human being. A juridical person is an entity to which the law attributes personality, such as a corporation or a partnership. The personality of a juridical person is distinct from that of its members." Corporations may own assets, sue and be sued. Normally, the assets of the corporation belong to the corporation, not the community of acquets and gains existing between the stockholders of said corporation. The community of acquets and gains owns the stock of the corporation. The value of that stock depends on the assets and liabilities of the corporation.
I concur with the results reached because I agree that because of the self-dealing mismanagement and concentrated plan by Mr. Lytal of bleeding and depleting the assets of the corporation for his benefit to the detriment of Mary Lynn Lytal, that Mrs. Lytal pierced the "corporate veil" to reveal that Lytal Offshore is the alter ego of and indistinguishable from Mr. Lytal.
Since his actions damaged or depleted the value of the stock, a preliminary injunction was properly issued La. R.S. 9:371 and La.Code of Civil Procedure without the need to post bond or show irreparable injury. I therefore concur in the results reached.
KLINE, J., Concurs in part and dissents in part.
I respectfully concur in part and dissent in part of the results, which granted injunctive relief to Mrs. Lytal.
I acknowledge that Lytal Offshore, Inc. is a legal entity formed October 18, 1979 during the community but is solely managed and controlled by Mr. Lytal. All of the corporate shares were issued in his name, however, because of their acquisition during the existence of the community, the shares are appropriately classified as community property.
There is no indication that the corporation formed for ownership of vessels and conduct of supply boat business was a sham or did not function initially to serve community interests by protection from liability, for continuity, and other benefits derived from incorporating a business venture. Lytal Offshore, Inc. is a juridical person.
As a corporate and legal entity it could and did, in fact, own extensive property interests. I cannot agree that where all of the stock of a corporation is owned solely by the community, the assets of the corporation are community property. The shares of stock in the corporation are the community property, not the individual nuts and bolts. To hold otherwise does violence to corporate law and theory.
Nevertheless, Mrs. Lytal has a property right in the shares that can be valued and should be protected. Because the value of her property right has been adversely affected by Mr. Lytal's management of corporate affairs, she has sought to guard and protect her interest by injunctive relief. Corporate shareholder remedies may be more onerous because the corporate shares are all in Mr. Lytal's name, but the fact of possible shareholder remedies does not preclude the exercise of other means or rights to protect community property or co-ownership interests.
Mrs. Lytal has urged and the trial court has found management tantamount to bad faith and fraud during and after termination of the community.
*116 In reasons, the trial court explained, to wit:
The Court finds there has been a pattern of preparation for the divorce by taking the corporations belonging to the community and isolating Mrs. Lytal from management, from the family operations of the family corporation. It shows a definite plan. It is the corporate equivalent of a roughneck's wife cleaning out all the family assets while he's offshore....
The defendant paid himself commissions for selling the vessels that belonged to the community while paying himself handsome salaries from the corporation. He also took from their personal account at Legg, Mason and borrowed the maximum on the account, then loaned the money to the corporation, then paid himself a bonus with at least part of the funds.
The plaintiff demonstrated the defendant is systematically removing funds from the corporate structures. The defendant has created a post-divorce corporation called James [T]. Lytal, III that does all the administrative work for the community corporations and received rental payments from the customers and is now taking its fees and forwarding the balance to the corporations owned by the community. This contract can best be described as self-[d]ealing.
It is obvious that the salaries and the loans from the Legg, Mason account are part of a preplanned divorce strategy.
There is an obvious difference in bad management and bad faith.
In regard to management during the existence of the community, the Civil Code, Management of Community Property provisions, include the following:
Art. 2354. Liability for fraud or bad faith
A spouse is liable for any loss or damage caused by fraud or bad faith in the management of the community property.
In regard to management after the termination of the community, the following are Civil Code provisions regarding certain duties owed by virtue of co-ownership:
Art. 2369.1. Application of co-ownership provisions
After termination of the community property regime, the provisions governing co-ownership apply to former community property, unless otherwise provided by law or by juridical act.
When the community property regime terminates for a cause other than death or judgment of declaration of death of a spouse, the following Articles also apply to former community property until a partition, or the death or judgment of declaration of death of a spouse.
Art. 2369.3. Duty to preserve; standard of care
A spouse has a duty to preserve and to manage prudently former community property under his control, including a former community enterprise, in a manner consistent with the mode of use of that property immediately prior to termination of the community regime. He is answerable for any damage caused by his fault, default, or neglect.
A community enterprise is a business that is not a legal entity.[1]
The provision of Civil Code Article 799 relative to liability of a co-owner provides as follows:
*117 Art. 799. Liability of a co-owner
A co-owner is liable to his co-owner for any damage to the thing held in indivision caused by his fault.
In this case, the trial court granted an injunction prohibiting Mr. Lytal from disposing of some of the cash assets of the corporation from the sale of a vessel. This relates to a specific management decision, not overly broad, and directly related to the duty owed Mrs. Lytal by Mr. Lytal. It should be limited, however to disposal of the remaining $187,000.00.
To reiterate, I concur with the opinion that Mrs. Lytal cannot be made powerless to protect her property interest although the assets are those of a corporate entity.
Under circumstances of this cause in community property proceedings where (1) the husband has 100% control and management of corporate assets, (2) the wife has a property right because of community interest in the shares of the corporation although the shares are in the husband's name, and (3) there is a predicate finding of management bad faith by the trial court, then the wife should have injunctive relief without bond to prohibit specific management decisions to alienate, dispose, or encumber assets of the corporation to the detriment of the value of her shares.
There are ample precedents for enjoining or prohibiting actions. The purpose of injunctive relief is to prevent specifically threatened future conduct, not to undo or remedy past conduct. This should be permitted in the interest of justice.
Additionally, in consideration of the premise that it is the value of corporate shares that must be determined in this community property partition as opposed to the value of the particular assets owned by the corporation, and in further acknowledgment that the shares must be valued at the date of trial in accordance with La R.S. 9:2801, then Mrs. Lytal cannot be left without a remedy for those acts in bad faith that have already been accomplished and are not subject to injunctive relief because of third parties rights or impracticality of recovery.
If, and only if specific identifiable past acts can be or have been proven to be in bad faith as opposed to those acts merely of bad management or those of reasonable business practice, then the values of these acts of alienation, encumbrance or concealment should be fictionally brought back into the corporate entity for a fair valuation of the shares at the time of the trial of the petition for partition of community property, in much the same way as the fictional collation of succession property.
In essence, there are legal and equitable remedies available without holding that the corporate assets are community assets as opposed to classification of the shares as community. See La. C.C.P. art. 2164. See also Terry v. Terry, 565 So. 2d 997 (La. App. 1st Cir.1990); Queenan v. Queenan, 492 So. 2d 902 (La.App. 3rd Cir.), writ denied, 496 So. 2d 1045 (La.1986).
In summary, I respectfully dissent from the holding that the corporate assets themselves are community property. The corporate shares are that which constitute community property.
I would concur that Mrs. Lytal has legal and equitable remedies for the preservation, and for the fair evaluation of her community property under "duty" provisions owed to her by Mr. Lytal.
NOTES
[1] Judge William F. Kline, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court
[1] The definition of "community enterprise" does not limit the duty of prudent management of former community property under a spouse's control albeit the property consists of share in a corporation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1548843/ | 119 F.2d 721 (1941)
MIDDLETON et al.
v.
HARTFORD ACC. & INDEMNITY CO.
No. 9446.
Circuit Court of Appeals, Fifth Circuit.
May 16, 1941.
*722 Rolland Bradley, of Houston, Tex., for appellants.
Albert P. Jones, of Houston, Tex., for appellee.
Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.
SIBLEY, Circuit Judge.
The suit was for compensation for injury under the Texas Workman's Compensation Law, Vernon's Ann.Civ.St.Tex. art. 8306 et seq. The judge directed a verdict *723 for the defendant. The plaintiffs having obtained an order to appeal in forma pauperis under 28 U.S.C.A. § 832, gave notice of appeal, and filed a narrative statement of the evidence under Federal Rules of Civil Procedure, rule 75(c), 28 U.S.C.A. following section 723c. The appellee required that the stenographic report of the trial in question and answer form be substituted. The appellants went to the judge under Rule 75(h) for approval of their statement, asserting in their motion therefor that it was correct, that they had no stenographic report of the trial and because of poverty could not get it, and having appealed in forma pauperis ought not to be deprived of their appeal for lack of it. The appellee, not pointing out any particulars wherein the narrative statement was wrong, insisted on the right to the stenographic report. The judge, being unable to remember the evidence in detail, but being of opinion that the narrative was not correct refused to approve it, but ordered the Clerk to certify it and the proceedings about it to this court which was done. The appellee has moved to dismiss the appeal for want of a sufficient record on appeal.
Rule 75 prescribes how a record on appeal is to be made up and perfected in a civil action, whether a case of law or equity. The appellant is to serve on the appellee "a designation of the portions of the record, proceedings and evidence to be contained in the record on appeal", and within ten days afterwards the other party may serve and file a designation of "additional portions of the record, proceedings, and evidence"; Rule 75(a). The "record" means the writings filed with the district clerk as pleadings, process, formal orders of the judge, and such other writings, as have always been considered parts of the record in a law or equity case in the district court. "Proceedings" include the oral motions and judgments during the trial, the rulings on evidence, the selection of the jury where there is one, the charges and refusals to charge, and the many occurrences of a trial which are not entered on the minutes of the court or otherwise reduced to record form. The "evidence" of course refers to the proofs. Oral evidence is never matter of record until reduced to writing and made so. Depositions and interrogatories filed with the clerk, and documents introduced in the trial and filed with the clerk, were formerly considered part of the record in an equity case, but not in a law case. In a law case the rule was rigid that the evidence, oral, written and documentary, and all the unrecorded "proceedings", must be embodied in a bill of exceptions authenticated by the judge, in order to be certified by the clerk to an appellate court. 28 U.S.C.A. § 776. Thompson v. Riggs, 5 Wall. 663, 18 L. Ed. 704; Baltimore & P. R. R. Co. v. Trustees, 91 U.S. 127, 23 L. Ed. 260; England v. Gebhardt, 112 U.S. 502, 5 S. Ct. 287, 28 L. Ed. 811; Evans v. Stettnisch, 149 U.S. 605, 13 S. Ct. 931, 37 L. Ed. 866; Lees v. United States, 150 U.S. 476, 14 S. Ct. 163, 37 L. Ed. 1150; Bassing v. Cady, 208 U.S. 386, 28 S. Ct. 392, 52 L. Ed. 540, 13 Ann.Cas. 905.
In equity cases originally there was no oral evidence, but Section 30 of the judiciary act of 1789, 1 Stat. 88, 28 U.S.C.A. §§ 635, 639-641, 644, authorized it, and Sect. 19 provided that on appeal it be agreed on by the parties or stated by the judge. A bill of exceptions was unknown to equity practice. Ex parte Story, 12 Pet. 339, 9 L. Ed. 1108. Difficulty with oral evidence began in Conn v. Penn, 5 Wheat. 424, 5 L. Ed. 125. The whole matter was reviewed in Blease v. Garlington, 92 U.S. 1, 7, 23 L. Ed. 521, where it was held that oral evidence "must be taken down or its substance stating in writing, and made part of the record." It is not said how it is to be made part of the record, but presumably by being agreed on by the parties or approved by the judge. The recent Equity Rule 75 explicitly required approval by the judge.
The Rules of Civil Procedure abolish the bill of exceptions in law cases, but make no provision in a law or equity case for the judge to certify anything, unless in settling a dispute under Rule 75(h). It seems to be assumed that the clerk has everything, and the parties have merely to "designate" what they wish certified under Rule 75(g). It is plain from Rule 75(b) as to the "proceedings" and "evidence" at a trial "which was stenographically reported", that the "reporter's transcript" is to be relied on, subject of course to correction by the judge under Rule 75(h). And there is provision in Rule 75 (c) for a party to accompany his "designation" of evidence with what he thinks is a proper narrative of the testimony, to be substituted by "question and answer form" on requirement of the other party. *724 Again a stenographic report seems to be in mind. There is no express provision at all for making an authentic statement of the "proceedings" in a trial not stenographically reported, or as to which no "reporter's transcript" is available. It is probably to be inferred that an appellant may serve with his "designation" not only a narrative of the evidence but also his account of the "proceedings", which will be esteemed correct unless his adversary serves a supplement, or take its truth to the judge under Rule 75(h). If the appellee files a supplemental statement of evidence or proceedings, it too will be deemed agreed to unless taken to the judge. A record of "evidence" or "proceedings" which the clerk may certify may thus be created by the express or presumed assent of the parties, or by the order of the judge in settling disputes, where a reporter's transcript is not available as well as where it is.
If there is a reporter's transcript it may be required to be used by either party, in whole or in part, subject to correction by the judge. But this does not mean that always the entire transcript is or can be required to be used. Much of it often consists of preliminary statements, arguments of counsel, repetition, irrelevancies, which counsel and the trial judge know are immaterial and could easily strike out; but the materiality of them can be discovered in the appellate court only by reading and considering it all after the expense of transcribing and printing has been incurred. That only the parts of the transcript essential to the questions to be decided are to be used is apparent from Rule 75(b) and (e).
In the case before us a stenographer reported the trial. Whether he was one appointed under Rule 80(a) or (b) does not appear. Unless he had such a status, or was agreed on by the parties as a proper stenographer, the trial was not "stenographically reported" within the meaning of Rule 75. His certificate (none was made here) to the correctness of his transcript would not authenticate it. The Rule does not contemplate that one party shall employ a stenographer of his choice to report for him, without the authority of court or adversary. Such a reporter would be a competent witness before the judge, in case of disagreement as to the proceedings or evidence, but that is all. In the argument of this case no point is made as to the status of this stenographer, so we assume him duly appointed.
Nevertheless we think there was no "reporter's transcript" available under Rule 75, because the stenographer would not, and was not compellable to, make and furnish it free, and the appellants were unable to pay for it. They had the right to appeal their case without paying costs, and under Rule 80 the stenographer's fees are taxable as costs. We feel sure that the Rules of Civil Procedure, if they could, were not intended to limit the right of a citizen to litigate in forma pauperis under the statute. The general rule that an appellant shall furnish and use the reporter's transcript is subject to the special statutory exception of a poor person who cannot obtain it. A general statute does not repeal by implication a special one unless the conflict is plain and irreconcilable. In re Kang-Gi-Shun-Ca, 109 U.S. 556, 3 S. Ct. 396, 27 L. Ed. 1030; Rodgers v. United States, 185 U.S. 83, 22 S. Ct. 582, 46 L. Ed. 816; Washington v. Miller, 235 U.S. 422, 35 S. Ct. 119, 59 L. Ed. 295. Neither should a general rule of practice having the force of a statute.
What then should the trial judge have done? We think he should have required of the appellee more specific objections to the appellants' statement of the evidence, some particulars as to what should be stricken, added or substituted, and if he himself could not remember what was testified, he could have called witnesses who gave or heard the disputed testimony. He should not have refused to approve the tendered narrative without any specific fault having been pointed out by appellee or himself and without opportunity given to remedy it. That the stenographer's transcript was not furnished was not, in view of the order permitting appeal in forma pauperis, a sufficient reason.
But we need order no further steps to perfect the narrative under Rule 75(h), because the appellee has produced here the stenographer's transcript, approved by the judge and by appellants' counsel, with a motion that it be filed and used if the appeal be not dismissed. We overrule the motion to dismiss the appeal and order the agreed transcript filed and used as a part of the record on appeal.
On the merits, it appears that the appellant Frank S. Middleton, while industrially *725 employed on February 2, 1937, was hit from behind by a heavy tractor which bruised his back and cut his leg open. The leg injury was thought to be the serious one, the employer's physician saying the back would soon be all right. The leg promptly healed, but the back continued to give pain, appellant became very nervous, and about six months after the injury was advised to take a rest. He went upon a farm, and in September tried to pick cotton, having to work on his knees to avoid stooping, and after picking one hundred pounds of cotton one afternoon he had to go to bed because of his back and remain there twelve days. Returning to the city he went to the hospital in November. In March he worked at his old job eight nights, had to quit and has not worked since. In April he went to a chiropractor, who told him his trouble was with his spine, but he thought he could help him. After six weeks the chiropractor said he could do him no good. Appellant then consulted a lawyer and filed claim for compensation June 7, 1938, sixteen months after receiving the injury.
The statute Revised Civil Statutes, Art. 8307, § 4a, requires a claim to be filed within six months from the injury. The time limit may be waived in meritorious cases where good cause is shown for not filing. The good cause must exist not only at the time the six months expires, but must continue until the claim is filed. If the injury is known, and has occasioned either total or partial disability, claim ought to be timely filed, though its full seriousness has not been realized. The statute makes a timely claim a condition of relief. We may assume without deciding that the circumstances afforded good cause for not filing on August 2, 1937, but in September, and the months following, appellant knew his back was in part at least the cause of his disability. He was bound then to file claim for the injury to his back without further delay. There was no good cause for continuing to delay until June, 1938. Mayers v. Associated Indemnity Corp., 5 Cir., 108 F. 89; Indemnity Ins. Co. v. McManus, 5 Cir., 88 F.2d 924; Williamson v. Texas Indemnity Ins. Co., 127 Tex. 71, 90 S.W.2d 1088; Indemnity Ins. Co. v. Williams, 129 Tex. 51, 99 S.W.2d 905; Petroleum Casualty Co. v. Dean, 132 Tex. 320, 122 S.W.2d 1053; Cunningham v. Fidelity & Casualty Co., Tex.Civ.App., 102 S.W.2d 1106; Texas Indemnity Ins. Co. v. Cook, Tex.Civ.App., 87 S.W.2d 830. The verdict was properly instructed against the appellant, and the judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591249/ | 686 N.W.2d 235 (2004)
STATE v. MIDGORDEN.
No. 03-0958.
Court of Appeals of Iowa.
May 14, 2004.
Decisions without published opinions. Affirmed in part; Reversed in part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591279/ | 14 So.3d 1017 (2009)
GUMLICK
v.
STATE.
No. 5D09-1626.
District Court of Appeal of Florida, Fifth District.
August 4, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2866971/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-03-00131-CV
Texas Parks and Wildlife Department/Milburn Dearing; Kenneth Head; and Mike
Warren, Individually, and on behalf of all similarly situated, Appellants
v.
Milburn Dearing; Kenneth Head; and Mike Warren, Individually, and on behalf of all
similarly situated/Texas Parks and Wildlife Department, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. GN102867, HONORABLE JOSEPH H. HART, JUDGE PRESIDING
O R D E R
PER CURIAM
Milburn Dearing, Kenneth Head, and Mike Warren, individually, and on behalf of
all similarly situated have filed an uncontested motion to withdraw their cross notice of interlocutory
appeal. We grant the motion.
This appeal will be restyled and proceed with movants solely as appellees and the
Texas Parks and Wildlife Department solely as the appellant.
It is ordered May 15, 2003.
Before Justices Kidd, Yeakel and Patterson
Do Not Publish | 01-03-2023 | 09-06-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1591317/ | 972 So. 2d 1161 (2008)
STATE of Louisiana
v.
Calvin Lee CRADDOCK.
No. 2007-KO-1466.
Supreme Court of Louisiana.
January 11, 2008.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591513/ | 686 N.W.2d 514 (2004)
262 Mich.App. 542
CITY OF DETROIT, City of Huntington Woods, Inter-County Citizens Achieving Regional Excellence, Green Acres-Woodward Civic Association, Palmer Woods Association, University District Community Association, Sherwood Forest Association, Suzanne Antisdel, Arthur Antisdel, Charles Barr, Carolyn Barr, Martin Baum, Marcia Baum, Willie Bell, Carol Bell, Eddy S. Bullock, Jr., Anna Bullock, Curtis Dickerson, Maria Dickerson, Michael Einheuser, Diane L. Willard, Marie Glaza, Nancy Goedert, Robert Handley, Marie Handley, Dawn Hesse, Donen Hesse, Melvin J. Hollowell, M.D., Sylvia Hollowell, Khalid Kassab, Clair Kassab, Reverend Michael Kirila, Lauretta E. Laframboise, David Marquardt, Margaret R. Marquardt, Dale Morgan, Thomas J. Rafels, Herbert Schneider, Kathryn Schneider, Gary Scott, Laura Scott, Normal Silk, Charles A. Vasser, David Welsch, Theresa Welsch, and Machpelah Cemetery Association, Plaintiffs-Appellees, and
City of Ferndale and City of Pleasant Ridge, Plaintiffs-Not-Participating,
v.
STATE of Michigan, Defendant-Appellant, and
State Fair Development Group, L.L.C., Defendant-Not-Participating.
Docket No. 240174.
Court of Appeals of Michigan.
Submitted April 7, 2004, at Detroit.
Decided June 22, 2004, at 9:00 a.m.
Released for Publication September 1, 2004.
*516 Barris, Sott, Denn & Driker, P.L.L.C. (by Eugene Driker and Geaneen Washington), Detroit, for the plaintiffs.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Matthew C. Keck and John F. Szczubelek, Assistant Attorneys General, for the state of Michigan.
Before: WILDER, P.J. and HOEKSTRA and KIRSTEN FRANK KELLY, JJ.
PER CURIAM.
Defendant state of Michigan appeals as of right[1] a consent judgment arising out of plaintiffs' claim for declaratory and injunctive relief to prevent construction of an auto racing facility and outdoor amphitheater on the state fairgrounds. We reverse.
I. Facts
The state owns a parcel of land[2] in the city of Detroit near the intersection of Woodward Avenue and Eight Mile Road, commonly referred to as the "state fairgrounds," on which it holds the annual Michigan State Fair. During the rest of the year, indoor and outdoor agricultural, industrial, commercial, and recreational pursuits are conducted at the fairgrounds. Adjacent to the state fairgrounds is a parcel of land of approximately thirty-six acres,[3] which the state has also acquired. Plaintiffs allege that the state fairgrounds is zoned for general business use while the adjoining parcel is primarily restricted to two-family residential use with the lots facing Woodward Avenue and Eight Mile Road zoned for general business use.
In April 2000, the state agreed to sell the adjoining parcel to State Fair Development Group, L.L.C. (SFDG). The agreement provides: "When title passes to the Buyer at closing, the Premises will immediately become subject to ... certain local ordinances and regulations (including zoning and taxation) to which the Premises was not subject to [sic] before closing because it was owned by the State." The state also agreed to lease the state fairgrounds to SFDG for thirty years with renewal options. The lease terms include a provision to develop the state fairgrounds and the adjoining parcel in accordance with a "master plan" attached to the lease. According to the plan, components of the state fairgrounds will include an auto racing facility and a large open-air amphitheater. The plan also provides for various other indoor and outdoor structures to be built, including, but not limited to, a convention center, an equestrian center, a livestock barn, and a community arts center. The plan also provides for the demolition or conversion of several existing structures. The lease further provides *517 that the SFDG must comply with all applicable laws, including zoning ordinances.
In May 2000, the Detroit City Council unanimously adopted a resolution opposing construction of the racetrack because of anticipated nuisance. Plaintiffs subsequently filed the complaint in this case seeking (1) injunctive relief preventing the SFDG from using the state fairgrounds or the adjoining parcel in violation of Detroit's zoning ordinance and (2) a declaratory judgment that the racetrack and amphitheater would be a nuisance, a nuisance per se, and a violation of the Michigan environmental protection act, M.C.L. § 324.1701 et seq. Plaintiffs later filed an amended complaint adding the state as a defendant.
The state moved for summary disposition under MCR 2.116(C)(7) and (C)(8) arguing, among other things, that it is exempt from the city zoning ordinance because the Michigan Exposition and Fairgrounds Act (MEFA), M.C.L. § 285.161 et seq., granted the Michigan Department of Agriculture (MDA) exclusive control over the state fairgrounds, M.C.L. § 285.165. The trial court denied the state's motion, ruling that, in the context of its contract with the SFDG, the state must comply with the zoning ordinance. The parties stipulated dismissal of the claims that were not addressed in the motion. This appeal followed.
II. Jurisdiction
The parties' stipulation to dismiss the remaining claims without prejudice is not a final order that may be appealed as of right; it does not resolve the merits of the remaining claims and, as such, those claims are "not barred from being resurrected on that docket at some future date." Wickings v. Arctic Enterprises, Inc., 244 Mich.App. 125, 136, 624 N.W.2d 197 (2000). The parties' stipulation to dismiss the remaining claims was clearly designed to circumvent trial procedures and court rules and obtain appellate review of one of the trial court's initial determinations without precluding further substantive proceedings on the remaining claims. This method of appealing trial court decisions piecemeal is exactly what our Supreme Court attempted to eliminate through the "final judgment" rule. MCR 7.202(6)(a)(i); McCarthy & Associates, Inc. v. Washburn, 194 Mich.App. 676, 680, 488 N.W.2d 785 (1992).
Accordingly, this Court does not have jurisdiction over this appeal as an appeal as of right because the trial court has not entered a final order disposing of all plaintiffs' claims. And we caution practitioners and trial courts to refrain from this type of improper practice, which we do not wish to reward. But, because this appeal presents a matter of significant public interest and in the interest of judicial economy, we exercise our discretion to treat the state's appeal as on leave granted. Schultz v. Auto-Owners Ins. Co., 212 Mich.App. 199, 200 n. 1, 536 N.W.2d 784 (1995).
III. Applicability of Zoning Ordinance
The state contends that the trial court erred in ruling that the state is subject to the city's zoning ordinance. We agree that the trial court erred in this ruling. Statutory interpretation presents a question of law that we review de novo. Putkamer v. Transamerica Ins. Corp. of America, 454 Mich. 626, 631, 563 N.W.2d 683 (1997).
The MEFA vests control over the state fairgrounds in the MDA; M.C.L. § 285.165 provides:
The control of all land and other property held or acquired by the state or its people for the purpose of holding and conducting agricultural and industrial *518 fairs and exhibitions is vested in the [MDA].
The MEFA sets forth the MDA's powers and duties in M.C.L. § 285.166, which provides:
The [MDA] shall do all of the following:
(a) Conduct an annual state fair and other exhibits or events for the purpose of promoting all phases of the economy of this state. This fair and the exhibits or events shall encourage and demonstrate agricultural, industrial, commercial, and recreational pursuits.
(b) Lease the state exposition and fairgrounds, a portion of the state exposition and fairgrounds, or a building on the state exposition and fairgrounds for purposes considered by the department to be consistent with the staging of the state fair and other exhibits or events. The department may determine and impose rental charges and other fees for the use or lease of the buildings and grounds or a portion of the buildings and grounds. The department may lease properties to private and public organizations for a period not to exceed 30 years for consideration established by the department. The department may grant leases for all or a portion of the state exposition and fairgrounds to private and public organizations, conditional upon construction and improvements according to plans approved by the department to be financed by the lessees, for terms not to exceed 30 years. The department may grant an extension of the lease term for not more than an additional 20 years. The use of the state exposition and fairgrounds, a portion of the state exposition and fairgrounds, or a building on the state exposition and fairgrounds shall not interfere with the preparation for or holding of the state fair and other exhibits or events. Land, a building, or other property that is leased under this subdivision to a for-profit business shall be leased at fair market value. All leases and contracts entered into under this act remain valid until the expiration of the term of the lease or contract.
(c) Enter into contracts to conduct the annual state fair, exhibits, or other events, at the state exposition and fairgrounds that enhance agricultural, industrial, commercial, recreational, educational, or cultural pursuits or government services to citizens.
In addition, the title to the MEFA states that the act was created "to provide for the control and management of certain state exposition centers and fairgrounds...."[4]
Our Supreme Court has held that "the legislative intent, where it can be discerned, is the test for determining whether a governmental unit is immune from the provisions of local zoning ordinances." Dearden v. Detroit, 403 Mich. 257, 264, 269 N.W.2d 139 (1978). The Court later explained that "there are no special words, the absence of which engenders a specific outcome." Pittsfield Charter Twp. v. Washtenaw Co., 468 Mich. 702, 710, 664 N.W.2d 193 (2003). "Whatever terms are actually employed by the Legislature, our task is to examine the various statutory provisions at issue and attempt to discern the legislative intent in enacting them." Burt Twp. v. Dep't of Natural Resources, 459 Mich. 659, 669, 593 N.W.2d 534 (1999).
With this in mind, we must then resolve the conflict between the state's authority, as granted to the MDA pursuant to the MEFA, to construct and operate *519 a racing facility and outdoor amphitheater on the state fairgrounds and the city of Detroit's authority to regulate the use of lands within its territory pursuant to the City and Village Zoning Act (CVZA), M.C.L. § 125.581 et seq.
The trial court determined that a significant factor in discerning the Legislature's intent is the importance of uniformity across the state. The trial court stated that when uniformity is not necessary, however, local zoning ordinances must be followed. The trial court concluded that there was no need for statewide uniformity in the construction of the proposed structures; therefore, the state, in the context of its contract with the SFDG, must comply with the city's zoning ordinance.
We agree that the need for uniformity across statewide systems is an important consideration because if the state were subject to all local ordinances, the underlying policies of the various state systems "could be effectively thwarted by community after community" prohibiting the placement of necessary structures in appropriate locations. See Dearden, supra at 267, 269 N.W.2d 139. In this case, however, the Legislature created a distinct statutory scheme to regulate a specific parcel of land. Thus, statewide uniformity is not a relevant consideration. The more accurate question is whether, in creating the MEFA, the Legislature intended to grant the MDA exclusive control over this land to the extent that it is exempt from local zoning ordinances. See Capital Region Airport Auth. v. DeWitt Charter Twp., 236 Mich.App. 576, 583, 601 N.W.2d 141 (1999).
The state argues that we should presume the state is immune from local zoning because the CVZA does not expressly authorize the application of zoning to state-owned land and the MEFA contains no language subjecting the state fairgrounds to local zoning. But our Supreme Court guides us to characterize the issue "as one, not of absolute governmental immunity, but rather of legislative intent." Dearden, supra at 265, 269 N.W.2d 139; see Burt Twp., supra at 666 n. 8, 593 N.W.2d 534. Further, it is not necessary for the MEFA to expressly mandate compliance or permit noncompliance with local zoning ordinances. See Burt Twp., supra at 669, 593 N.W.2d 534; Pittsfield Twp., supra at 710, 664 N.W.2d 193.
Looking first to the CVZA, our Supreme Court has already decided the act does not "disclose what effect, if any, a zoning ordinance should have on state agencies." Dearden, supra at 265, 269 N.W.2d 139. Despite this, plaintiffs suggest that we grant the same deference to the CVZA that was granted to the township's broad regulatory authority in Burt Twp., supra at 665-666, 593 N.W.2d 534. But we do not agree that a generalized authority regarding "recreation" creates the same level of intended control over city land as was found in Burt Twp. regarding control over waterfront developments. See Pittsfield Twp., supra at 714-715, 664 N.W.2d 193.
Turning to the MEFA, the act states that "control of all land ... held or acquired by the state ... for the purpose of holding and conducting agricultural and industrial fairs and exhibitions is vested in the [MDA]." M.C.L. § 285.165. The plain language of the MEFA indicates the Legislature's intent that jurisdiction over the state fairgrounds be vested exclusively in the MDA. This is further supported by the fact that leasing of the grounds is conditioned only on the MDA's approval and harmony with the annual state fair. M.C.L. § 285.166. Under the doctrine of expressio unius est exclusio alterius the expression of one thing suggests the exclusion of all others by turning its attention to limits on leasing of the land, the Legislature "must have considered the issue of limits and intended no other limitation." *520 Pittsfield Twp., supra at 711, 712, 664 N.W.2d 193. Therefore, the Legislature's intent in creating the MEFA was to grant the MDA exclusive control exempt from local zoning ordinances over the state fairgrounds and any other property acquired for the purpose of holding and conducting state fair exhibitions.[5]
IV. Authority to Grant Declaratory Relief
The state also argues that the trial court did not have authority to enter declaratory relief regarding the applicability of local zoning because plans for the structures had not yet even been finalized; thus, plaintiffs' complaint is based on hypothetical issues, and there is no actual case or controversy. We disagree. This Court reviews jurisdictional issues de novo. Tokar v. Albery, 258 Mich.App. 350, 352, 671 N.W.2d 139 (2003).
"The existence of an `actual controversy' is a condition precedent to invocation of declaratory relief" and this requirement "prevents a court from deciding hypothetical issues." Shavers v. Attorney General, 402 Mich. 554, 588-589, 267 N.W.2d 72 (1978). But declaratory relief is designed to give litigants access to courts to preliminarily determine their rights. Id. at 588, 267 N.W.2d 72; MCR 2.605(A)(1). An actual controversy may exist where declaratory relief is needed to guide a plaintiff's future conduct, and the "court is not precluded from reaching issues before actual injuries or losses have occurred." Shavers, supra at 589, 267 N.W.2d 72.
Although construction had not yet begun when plaintiffs filed their complaint, the issues it presents are not hypothetical; according to the lease, the SFDG is required to construct the racetrack and amphitheater. Moreover, declaratory relief is designed to resolve questions like the one at issue before the parties change their positions or expend money futilely. See Opal Lake Ass'n v. Michaywe Ltd. Partnership, 47 Mich.App. 354, 209 N.W.2d 478 (1973). Plaintiffs' request for declaratory relief does not rely on the state having already violated the zoning ordinance, rather, it properly requests a determination whether the state has the authority to proceed as planned. The fact that the construction at issue has not yet begun does not prevent the trial court from ruling on the applicability of local zoning ordinances to the state.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
NOTES
[1] See part II.
[2] Plaintiffs allege that the parcel consists of 167 acres, while the state alleges that the parcel consists of "approximately 190 acres."
[3] Plaintiffs allege that the adjoining parcel consists of forty acres, while the state alleges that it consists of thirty-six acres.
[4] The title is useful for interpreting an act's subject, purpose, and scope, but is not controlling authority. Malcolm v. East Detroit, 437 Mich. 132, 143, 468 N.W.2d 479 (1991); People v. Al-Saiegh, 244 Mich.App. 391, 396-397, 625 N.W.2d 419 (2001).
[5] We add the caveat, however, that this conclusion only applies to the state fairgrounds and the adjoining parcel while still under the ownership of the state. If the adjoining parcel is sold to the SFDG, or any other entity, rather than merely leased, the change in ownership will trigger the need for compliance with local zoning ordinance. See Nolan Bros. of Texas, Inc. v. Royal Oak, 219 Mich.App. 611, 615-617, 557 N.W.2d 925 (1996). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591302/ | 686 N.W.2d 529 (2004)
In re Petition for DISCIPLINARY ACTION AGAINST William F. POST, Jr., a Minnesota Attorney, Registration No. 15443X.
No. A04-1295.
Supreme Court of Minnesota.
September 16, 2004.
ORDER
The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent William F. Post, Jr., has committed professional misconduct warranting public discipline, namely, respondent was convicted of felony driving while intoxicated (DWI) in violation of Rule 8.4(b), Minn. R. Prof. Conduct.
*530 Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under to Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered in to a stipulation with the Director in which they jointly recommend that the appropriate discipline is a six-month stayed suspension and unsupervised probation for a period of five years subject to the following conditions:
a. Respondent shall cooperate fully with the Director's Office in its efforts to monitor compliance with this probation and promptly respond to the Director's correspondence by the due date. Respondent shall cooperate with the Director's investigation of any allegations of unprofessional conduct which may come to the Director's attention. Upon the Director's request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
b. Respondent shall abide by the Minnesota Rules of Professional Conduct.
c. Respondent shall comply with the terms of his criminal probation, which include the following:
i. Respondent shall maintain total abstinence from alcohol and other mood-altering chemicals, except that respondent may use prescription drugs in accordance with the directions of a prescribing physician who is fully advised of respondent's chemical dependency before issuing the prescription.
ii. Respondent shall complete treatment for chemical dependency and any aftercare that may be recommended or prescribed by the treating facility.
iii. Respondent shall attend bi-weekly meetings of Alcoholics Anonymous or any other out-patient alcohol treatment program required by respondent's criminal probation.
iv. Respondent shall wear an alcohol monitoring device while serving the electronic home monitoring portion of his sentence.
v. Respondent shall complete a 30-day period of wearing a SCRAM bracelet each year, as required by his criminal probation.
vi. Respondent shall submit to random drug screening.
d. Upon completion of respondent's 30-day period of incarceration and/or work release, if eligible, respondent shall wear a SCRAM bracelet for a one-year period. Respondent shall not be required to wear the SCRAM bracelet any time during this one-year period if he is subject to the electronic home monitoring and alcohol sensor requirements of his criminal probation. Respondent agrees to pay the costs associated with the use of the SCRAM device and home monitoring. Respondent shall provide the Director with authorizations to monitor and receive reports regarding his compliance with the SCRAM device and home monitoring. Any positive read for ingested alcohol will be grounds for revoking the stay of execution of respondent's six-month stayed suspension.
e. Upon completion of wearing a SCRAM bracelet for a one-year period, upon the request of the Director, respondent shall, at his own expense, no more than six times per month, submit to random urinalysis for drug screening at a facility approved by the Director. These drug screenings shall be in addition to any required through respondent's criminal probation. Respondent shall direct the drug screening facility to provide the results of all urinalysis testing to the Director's Office. If, after six *531 months, all such tests have been negative, then the frequency of the random tests may be reduced or terminated at the Director's discretion. Respondent shall cooperate with the phone-in program established by the Director for the random tests. Any failure to phone in accordance with the random test program shall be considered the same as receipt of a positive test result. Any positive test will be grounds for revoking the stay of execution of respondent's six-month stayed suspension.
f. Respondent shall, by the tenth day of each month, without a specific reminder or request, submit to the Director an attendance verification for Alcoholics Anonymous, or any other treatment program required under the terms of his criminal probation, on a form provided by the Director, which provides the name, address, and telephone number of the person personally verifying the attendance.
g. Should respondent be discharged from his criminal probation earlier than the five-year period imposed in the district court's June 16, 2004, sentencing order, the Director may, in his discretion reduce the duration of respondent's disciplinary probation in accordance with respondent's discharge by community corrections.
Respondent shall pay $900 in costs pursuant to Rule 24, RLPR.
The court has independently reviewed the file and approves the jointly recommended disposition.
Based upon all the files, records and proceedings herein,
IT IS HEREBY ORDERED that respondent William F. Post, Jr., is suspended for a period of six months, stayed upon the condition that he comply with the above-mentioned conditions of his probation for a period of five years. Respondent shall pay $900 in costs pursuant to Rule 24, RLPR.
BY THE COURT /s/Paul H. Anderson Associate Justice | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591321/ | 686 N.W.2d 235 (2004)
IN RE MARRIAGE OF WHITE.
No. 03-1226.
Court of Appeals of Iowa.
May 14, 2004.
Decisions without published opinions. Vacated and Remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591309/ | 14 So.3d 1261 (2009)
BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC., and Health Options, Inc., Appellants/Cross-Appellees,
v.
UNIVERSITY OF FLORIDA BOARD OF TRUSTEES, a Public Body Corporate, for the Benefit of the University of Florida College of Medicine, University of Florida College of Public Health and Health Professions, and University of Florida College of Dentistry, Appellee/Cross-Appellant.
No. 1D08-3813.
District Court of Appeal of Florida, First District.
July 6, 2009.
*1262 H. Michael Muniz, Andres Gonzalez, and Steven M. Ziegler of Steven M. Ziegler, P.A., Hollywood, for Appellants/Cross-Appellees.
A. Graham Allen, Christine M. Russell, and Robert H. Pritchard of Rogers Towers, P.A., Jacksonville, for Appellee/Cross-Appellant.
ROBERTS, J.
In this interlocutory appeal, the appellants, Blue Cross and Blue Shield of Florida, Inc., and Health Options, Inc., and the appellee, the University of Florida Board of Trustees, both challenge the trial court's non-final order denying in part and granting in part the motions to compel arbitration filed by the appellants. The appellants raise two issues on direct appeal, which we do not address because they are subsumed by our ruling on the cross-appeal. The appellee raises one issue on cross-appeal. The appellee argues that the trial court erred in finding that an arbitrable issue existed. We agree and reverse and remand with instructions to the trial court to enter a non-final order denying the appellants' motions to compel arbitration.
FACTS
Between 1987 and 1993, the parties entered into six agreements (the pre-existing agreements), four of which contained arbitration clauses. Two of the arbitration clauses included any claim or controversy "arising out of or relating to" the agreements. The other two arbitration clauses included any claim or controversy "arising out of or relating to" an audit finding under the agreements or any claim or controversy "arising under" the agreements.
In 2004, the parties entered into the Letter of Agreement. The Letter of Agreement did not contain an arbitration clause. It did, however, provide that it would "modify and supplement but not replace any existing agreements" between the parties. The Letter of Agreement also provided a reimbursement formula for the appellants' calculation of the payments due to the appellee. The formula utilized relative value units (RVUs) to assign a value to specific medical procedures or services, a methodology adopted by the Centers for Medicare and Medicaid Services (CMS) for calculating the amount of Medicare reimbursements; applied geographical practice costs indices to adjust each RVU by geographical area; and then made adjustments based on a specifically negotiated conversion factor. According to the appellee, in January of 2007, CMS adopted a new methodology to reduce Medicare reimbursements which applied a "budget neutrality factor adjustment." The parties, however, did not modify the reimbursement formula to adopt this new methodology.
In 2008, the appellee filed a declaratory judgment action against the appellants regarding the rights and obligations of the parties under the Letter of Agreement. The appellee alleged that the appellants were applying the CMS's "budget neutrality factor adjustment" to reduce payments due to the appellee, in violation of the Letter of Agreement.
The appellants then filed motions to compel arbitration of the declaratory judgment action. The appellants argued that, *1263 because the Letter of Agreement supplemented the pre-existing agreements and was made part of the complaint, the pre-existing agreements were also part of the complaint. The appellants also argued that, because four of the pre-existing agreements contained arbitration clauses, any disputes related to those agreements had to be submitted to arbitration.
Following a hearing on the motions, the trial court entered a non-final order denying in part and granting in part the appellants' motions. The trial court found that (1) there was a valid agreement to arbitrate; (2) there was an arbitrable issue, specifically whether the "budget neutrality factor" methodology applied to medical procedures or services under the "subject contracts;" and (3) arbitration had not been waived. With respect to the two pre-existing agreements not containing arbitration clauses, the trial court denied the motions with prejudice. With respect to the four pre-existing agreements containing arbitration clauses, the trial court denied the motions without prejudice and stayed the issues pertaining to those agreements.
ANALYSIS
In ruling on a motion to compel arbitration, a trial court must consider three elements: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. See Seifert v. United States Home Corp., 750 So.2d 633, 636 (Fla.1999). The issue on cross-appeal does not relate to the first or third elements. It is undisputed that the Letter of Agreement did not contain an arbitration clause. It is also undisputed that four of the pre-existing agreements did contain arbitration clauses and the right to arbitration under those agreements was not waived.
The issue on cross-appeal relates to the second element. The appellee argues that no arbitrable issue existed. This argument has merit. To find that an arbitrable issue existed, there must have been some nexus between the claim and the four pre-existing agreements containing arbitration clauses. See id. at 638. At a minimum, the claim must have raised some issue which could not have been resolved without reference to or construction of some portion of the four pre-existing agreements containing arbitration clauses. See id.
The appellee's claim sought a declaratory judgment regarding the rights and obligations of the parties under the Letter of Agreement and alleged that the appellants were in violation of that agreement. The appellee's claim did not seek a declaratory judgment regarding the rights and obligations of the parties under the four pre-existing agreements containing arbitration clauses or allege that the appellants were in violation of those agreements. Consequently, there is no nexus between the appellee's claim and the four pre-existing agreements containing arbitration clauses. It is also clear that resolution of the appellee's claim does not require reference to or construction of any portion of the four pre-existing agreements containing arbitration clauses. Accordingly, the trial court erred in finding that an arbitrable issue existed.
REVERSED and REMANDED with instructions for the trial court to enter a non-final order denying the appellants' motions to compel arbitration.
KAHN and THOMAS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591310/ | 972 So.2d 962 (2008)
Glen IKALINA, Appellant,
v.
The CITY OF PEMBROKE PINES, Appellee.
No. 4D06-2411.
District Court of Appeal of Florida, Fourth District.
December 19, 2007.
Rehearing Denied February 22, 2008.
*963 David B. Pakula of David B. Pakula, P.A., Pembroke Pines, for appellant.
Carlos E. Mustelier, Jr. of Boyd Mustelier Smith & Parker, P.L., Miami, for appellee.
WARNER, J.
When a police officer of the City filed suit against the City for breach of an agreement reached in an arbitration proceeding between the City and the officer, the trial court referred the matter back to the arbitrator. The arbitrator determined that the City had not breached its contract. Based upon the arbitrator's determinations, the court dismissed the officer's suit. He appeals claiming that the matter was not properly referred to the arbitrator and the arbitrator exceeded his authority in determining the issue before him. We disagree and affirm.
Glen Ikalina, a policeman with the City of Pembroke Pines, was suspended by the City and sought arbitration through his union's grievance procedures. The parties agreed to a settlement on February 11, 2004, in which Ikalina agreed to retire. Specifically, the agreement provided:
Grievant/Employee will retire in good standing on April 16, 2004 subject to all other provisions of this agreement. Upon his retirement Grievant/Employee will receive all standard/normal retirement benefits that any other police department employee receives and will be entitled to use his existing leave accruals and the City will contribute the difference so that Grievant/Employee will have 1,000 hours accrued leave to cash in for pension purposes.
3.0 Beginning on February 12, 2004, Grievant/Employee shall be placed on paid administrative leave with no reporting requirements by the City. Orrievant/Employee will continue to enjoy all benefits provided to all other Police Benevolent Association members on paid status, said leave to continue until his retirement date of April 16, 2004. However, if the CBA referenced in paragraph 6.0 and the new pension ordinance also mentioned in paragraph 6.0 are approved subsequent to April 16, 2004, Grievant/Employee will continue to receive the same until both the CBA and new pension ordinance are approved. Grievant/Employee shall turn in City issued equipment at the Police Department by February 12, 2004 at noon.
The agreement also provided that the arbitrator retained jurisdiction for purposes of carrying out the terms of the agreement.
On April 15, 2004, the day before Ikalina agreed to retire, he appeared before the Pension Board to apply for and request participation in the DROP Program. This program is available to active City *964 employees who have attained "normal retirement status" under section 34.43 of the City's code of ordinances. City of Pembroke Pines, Fla., Code of Ordinances § 34.43 (2004). Pursuant to section 34.52(C)(3), DROP participants may continue working for up to five years. During this period, the participants' pension payments are deposited into an interest bearing DROP account. § 34.52(C)(5). An individual's involvement in the DROP program terminates in four ways: when the participant either "[e]lects in writing . . . to cease participation," "realizes the maximum participation period," "[t]erminates his employment as a police officer or fire-fighter," or "[d]ies." § 34.52(C)(8)(a)-(d).
It is not clear from the record whether the Pension Board determined that Ikalina qualified for the DROP program. Nevertheless, because Ikalina retired pursuant to the terms of the settlement agreement on April 16th, the City claimed that he was no longer in its employ and his ability to participate terminated pursuant to § 34.52(C)(8).
Ikalina filed a complaint against the City alleging that it breached the settlement agreement by failing to provide him with normal retirement benefits. He also requested a declaratory judgment as to his rights. The City moved to dismiss the complaint and to refer it to the arbitrator who still retained jurisdiction over the settlement agreement. The court abated the action while the arbitrator considered the issue.
After receiving submissions from the parties, the arbitrator determined that the City had complied with the agreement. Specifically, the arbitrator found:
The parties complied with paragraph 2 of the Settlement Agreement requiring Ikalina to retire under the Normal Retirement provisions of the Pension Fund effective April 16, 2004, and thus end his employment as a City police officer effective April 17, 2004.
As intended by the parties and clearly stated in paragraph 2 of the Settlement Agreement, Ikalina retired and, thus, left the employ of the City. Moreover, under the Pension Plan's specific language pertaining to the DROP program, DROP terminates or ends when the police officer's employment ends. Thus, by Ikalina signing the Settlement Agreement, his last day of employment as a City police officer was April 16, 2004. It follows, accordingly, that after such date he was no longer eligible for DROP.
After the arbitrator ruled, the City renewed its motion to dismiss, which the trial court granted based upon the findings of the arbitrator. The court found that the arbitrator did not exceed his authority in ruling on the issue of compliance with the agreement. Ikalina appeals this ruling.
We hold that the court did not err in referring back to the arbitrator the matter of the interpretation of the settlement agreement and whether the parties properly carried out its terms. The settlement agreement specifically provided for the retention of jurisdiction by the arbitrator to carry out the terms of the settlement agreement. "[A]rbitration provisions are contractual in nature, construction of such provisions and the contracts in which they appear remains a matter of contract interpretation." Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). Here, the arbitrator was asked to determine whether the City had properly carried out the terms of the settlement agreement when it refused to recognize Ikalina's continued right to work under DROP, when Ikalina had agreed to retire on April 16, 2004. This *965 was within the reserved jurisdiction of the arbitrator.
Ikalina makes a mistake when he claims that under the settlement agreement he was entitled to all benefits, including DROP, when he reached normal retirement status on April 16, 2004. The agreement did not provide this. It quite clearly provided that Ikalina would retire, and he would receive all of the benefits that retired officers would receive. There is a difference. When one retires, one stops working. Attaining retirement status does not necessarily require one to stop working; it merely means that the employee has attained the necessary requirements to retire (i.e., met the retirement requirements of the pension plan). The settlement agreement unambiguously requires Ikalina to actually retire and leave the employ of the City. The agreement provides that he was placed on administrative leave with no reporting requirements the day after the settlement agreement was signed. He was also required to turn in all of his City issued equipment. On its face, the agreement required Ikalina to retire. At that point he was no longer employed by the City and thus ineligible for benefits which require actual employment, as does DROP.
The question of whether the City was providing the appropriate benefits, including DROP, was a question of whether the City had properly carried out the terms of the agreement. The trial court did not err in adopting the arbitrator's findings and dismissing this case.
Affirmed.
GROSS, J., and CHUMBLEY, DOUGLAS J., Associate Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591330/ | 70 S.W.3d 289 (2002)
BEXAR COUNTY, Texas, Appellant,
v.
Elvin J. GANT, Jr., Appellee.
No. 04-01-00625-CV.
Court of Appeals of Texas, San Antonio.
January 16, 2002.
*290 Leslie J.A. Sachanowicz, Asst. Dist. Atty., San Antonio, for Appellant.
Peter J. Stanton, Law Offices of Peter J. Stanton, San Antonio, for Appellee.
Sitting: PHIL HARDBERGER, Chief Justice, CATHERINE STONE, Justice, and PAUL W. GREEN, Justice.
OPINION
PHIL HARDBERGER, Chief Justice.
This is an accelerated appeal from the trial court's denial of a motion for summary judgment asserting that the trial court was without subject matter jurisdiction to consider the underlying cause. The only issue presented for our review is whether Elvin J. Gant, Jr. ("Gant") exhausted his administrative remedies before filing the underlying lawsuit. If he did, the trial court properly ordered that he may go forward with his lawsuit. We conclude that he did so. All administrative remedies were exhausted as to Gant's claims except Gant's claim for unlawful retaliation. Accordingly, we affirm the trial court's judgment denying the County's summary judgment as to all of Gant's claims except the claim for unlawful retaliation. We reverse the trial court's judgment as to the unlawful retaliation claim and dismiss this claim based on Gant's failure to exhaust his administrative remedies.
BACKGROUND
Gant filed a charge of discrimination with the Texas Commission on Human Rights (the "Commission") on July 9, 1999. The complaint stated that Gant believed he had been discriminated against because of his race/national origin, color, sex and age. The complaint alleged that Gant was subjected to a racial slur, was not selected for promotion, and was terminated for supposedly poor performance. Gant subsequently *291 received a right to sue letter from the Commission.
After receiving the right to sue letter, Gant filed a lawsuit against the County. The following facts are based on the recitals in the petition. On December 27, 1998, Gant was hired to work for the County on a six month probationary period. Gant believed that the executive director of the department for which Gant worked disagreed with the decision to hire Gant. On January 6, 1999, Gant said he overheard the executive director state during a telephone conversation, ... "that nigger may have gotten his foot in the door, but that doesn't mean he will stay...." Gant knew the executive director was referring to him and knew that he would have trouble on his new job.
The executive director subsequently delayed implementation of a program assigned to Gant and disapproved of an administrative policy proposal developed by Gant in connection with the program. Gant made his superiors aware of his opposition to the County's discriminatory practices against women and attempted to develop a sexual harassment policy. However, the County restricted Gant's participation in the formulation of a policy and, instead, enhanced employee training in the area.
Gant was passed over for three open positions that were left unfilled until after Gant's termination at which time they were filled by "less qualified African-American persons." In March of 1999 and on June 21, 1999, Gant was informed that his overall job performance was at an acceptable level although no formal performance appraisal was given. However, on June 24, 1999, the executive director informed Gant that he would not be retained beyond the probationary period.
Gant alleged that the County violated the Texas Human Rights Act ("Act") by discharging him at the end of his probationary period and by failing to hire him for vacant positions during his probationary period. Gant further alleged that a motivating factor for the adverse employment actions was Gant's race. Finally, Gant alleged that the adverse employment actions were also taken in retaliation against Gant for his opposition to the County's discriminatory practices.
The County filed a motion for summary judgment, asserting that Gant failed to exhaust his administrative remedies and, therefore, the trial court was without subject matter jurisdiction. The County contended that the 180-day period for the filing of Gant's complaint with the Commission began on January 6, 1999, when Gant overheard the executive director's racial slur. Because Gant failed to file his complaint within 180 days from January 6, 1999, the County asserted that the complaint was untimely filed, and Gant failed to exhaust his administrative remedies.
Gant responded that he timely filed his complaint because no unlawful employment practice occurred on January 6, 1999, when Gant said he overheard the racial slur. The unlawful employment practices arose on later dates when he was passed over for other positions and when he was ultimately discharged.
JURISDICTION AND STANDARD OF REVIEW
Gant asserts that this court lacks jurisdiction to consider this appeal because it is the denial of a motion for summary judgment, not the denial of a plea to the jurisdiction. However, it is the substance of the procedural vehicle that confers jurisdiction, not the format. A governmental unit may appeal an interlocutory order that grants or denies a plea to the jurisdiction. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2001). A *292 plaintiff's failure to exhaust administrative remedies is a jurisdictional defect that deprives both the trial court and this court of jurisdiction. Essenburg v. Dallas County, 988 S.W.2d 188, 189 (Tex.1998); New Caney Ind. Sch. Dist. v. Burnham Auto-Country, Inc., 30 S.W.3d 534, 536 (Tex.App.-Texarkana 2000, pet. denied). Because the County's motion for summary judgment questions Gant's failure to exhaust his administrative remedies, the substance of the motion is a plea to the jurisdiction which this court has jurisdiction to consider.
We review a trial court's ruling on a plea to the trial court's subject matter jurisdiction de novo. Herring v. Welborn, 27 S.W.3d 132, 136 (Tex.App.-San Antonio 2000, pet. denied); Rylander v. Caldwell, 23 S.W.3d 132, 135 (Tex.App.-Austin 2000, no pet.). We accept all allegations in Gant's pleading as true to determine whether an incurable jurisdictional defect is apparent on the face of the pleadings, rendering it impossible for Gant's position to confer jurisdiction on the trial court. Herring, 27 S.W.3d at 136; Rylander, 23 S.W.3d at 135.
DISCUSSION
In his pleadings, Gant alleged that the County violated sections 21.051 and 21.055 of the Texas Labor Code ("Code"). Section 21.051 of the Code provides that an employer commits an unlawful employment practice if because of race the employer:
(1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or terms, conditions, or privileges of employment; or
(2) limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of the employee.
Tex. Lab.Code Ann. § 21.051 (Vernon 1996). Section 21.055 of the Code provides that an employer commits an unlawful employment practice if the employer retaliates or discriminates against a person who opposes a discriminatory practice. Tex. Lab.Code Ann. § 21.055 (Vernon 1996).
Any person aggrieved by an unlawful employment practice may file a complaint with the Commission. Tex. Lab.Code Ann. § 21.201 (Vernon 1996). The complaint must be filed no later than the 180th day after the date the alleged unlawful employment practice occurred. Tex. Lab.Code Ann. § 21.202(a) (Vernon 1996). The Commission must dismiss an untimely complaint. Tex. Lab.Code Ann. § 21.202(b) (Vernon 1996).
Gant asserts three separate complaints: (1) unlawfully failing to hire Gant for other job vacancies; (2) unlawful discharge/failure to retain beyond probationary period; and (3) unlawful retaliation for opposing a discriminatory practice. A lawsuit under the Act is limited to claims made in the discrimination complaint and "factually related claims that could reasonably be expected to grow out of the Commission's investigation of the charges." Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 738 (Tex.App.-Houston [14th Dist.] 1999, no pet.). The purpose of expanding the right to raise claims beyond the specific complaints made in the discrimination complaint is to protect lay persons who make the discrimination complaint without legal training or assistance. Fine v. GAF Chem. Corp., 995 F.2d 576, 577 (5th Cir.1993).
In this case, Gant's administrative complaint alleged that unlawful employment *293 practices had been taken against him based on his race. No allegations were made in the administrative complaint that Gant filed with the Commission regarding unlawful employment practices being taken against him based on his opposition to the County's discriminatory treatment of women which is the retaliation complaint alleged in Gant's petition.[1] Unlawful retaliation for opposing sexual harassment is not a "factually related claim that could reasonably be expected to grow out of" an investigation of Gant's race discrimination complaint. Thomas, 2 S.W.3d at 738. Therefore, Gant has failed to exhaust his administrative remedies with respect to this claim, and the trial court is without jurisdiction to consider this claim.
With regard to the race discrimination complaint, the issue is whether an unlawful employment practice occurred on January 6, 1999, requiring Gant to file a complaint within 180 days of that date. Section 21.051 defines the types of unlawful discrimination practices that are actionable: (1) failure or refusal to hire; (2) discharge; (3) discrimination in connection with compensation or terms, conditions, or privileges of employment; or (4) limiting, segregating or classifying an employee in a manner that deprives or tends to deprive the employee of an employment opportunity or affects the employee's status.
In Specialty Retailers, Inc. v. DeMoranville, the Texas Supreme Court considered when an unlawful employment practice had occurred for purposes of the 180-day requirement. 933 S.W.2d 490 (Tex.1996). The court noted that the plaintiff alleged that her supervisor discriminated against her by favoring younger workers while continually criticizing the plaintiff and requiring her to work after hours, creating a hostile work environment and causing stress and strain. Id. at 491. However, the court held that an unlawful employment practice only occurred on the date that the plaintiff was informed that she was being replaced and would be fired if her leave lasted longer than one year. Id. At that point in time, the terms and conditions of her employment were affected. Although the court noted that the basis of her complaint was the treatment she received, the court did not find an actionable unlawful employment act until the plaintiff was informed she was being replaced and was subject to termination.
In this case, the racial slur can be compared to an isolated incident in the discriminatory treatment received by the plaintiff in DeMoranville. The Texas Supreme Court did not find that the discriminatory treatment triggered the 180-day provision. The 180 day period only commenced when the plaintiff was informed that she was being replaced and that she could possibly be fired.
The racial slur does not fit within any of the categories of unlawful employment practices contained in section 21.051; therefore, it did not sufficiently alter the terms and conditions of employment to be actionable. See Indest v. Freeman Decorating, 164 F.3d 258 (5th Cir.1999) (noting isolated incidents do not amount to discriminatory changes in terms and conditions of employment unless extremely serious); see also Villarreal v. Williams, 971 S.W.2d 622, 625 (Tex.App.-San Antonio 1998, no pet.) (noting discrimination claim arises when employee receives notice of *294 discriminatory decision). Although evidence of the racial slur may be evidence of the discriminatory intent underlying the subsequent unlawful employment practice (which would be a reason for including the date in the administrative complaint form), the racial slur itself is not defined as an unlawful employment practice. Therefore, the 180 day period did not run from January 6, 1999, and the trial court properly denied the summary judgment as to Gant's claims that the County discriminated against him because of his race when he was passed over for other job vacancies and when he was discharged following the probationary period.
CONCLUSION
The trial court's judgment denying the County's summary judgment as to Gant's claims that the County discriminated against him because of his race when he was not hired for other job vacancies and when he was discharged following the probationary period is affirmed. The trial court's judgment as to Gant's claim for retaliation is reversed, and this claim is dismissed for lack of jurisdiction.
NOTES
[1] Gant does not complain that retaliatory action was taken against him because of the discrimination complaint he filed with the commission. See Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 738 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (noting retaliation complaint arising from filing of complaint does not require a second complaint to be filed and administrative remedies exhausted). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591757/ | 936 So. 2d 387 (2006)
Emmitt WILLIAMS a/k/a Emmett Williams, Appellant
v.
STATE of Mississippi, Appellee.
No. 2004-KA-01985-COA.
Court of Appeals of Mississippi.
March 21, 2006.
Rehearing Denied August 15, 2006.
*388 Michael Duane Mitchell, attorney for appellant.
Office of the Attorney General by Jeffrey A, Klingfuss, for appellee.
Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
CHANDLER, J., for the Court.
¶ 1. On February 17, 2004, Emmitt Williams was indicted in the Second Judicial District of Jones County for the sale of cocaine. Williams went to trial on August 31, 2004 and the jury returned a verdict of guilty. Williams was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections with five years suspended. The defendant appeals, raising the following issues:
I. WHETHER THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE GUILTY VERDICT
II. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE
III. WHETHER THE TRIAL COURT'S SENTENCE WAS CRUEL AND UNUSUAL PUNISHMENT
¶ 2. Finding no error, we affirm.
FACTS
¶ 3. Kenneth Hickman was a confidential informant for the Laurel Narcotics Bureau. Hickman was paid sixty dollars each time he purchased drugs for the narcotics bureau. On December 18, 2002, Hickman went to the narcotics bureau where he discussed the next transaction with a narcotics agent, Jerry Merrill. Hickman was equipped with a secret camera which recorded audio and video. Merrill drove Hickman to the assigned destination which was 1154 Simmons Street in Laurel, Mississippi. Merrill gave Hickman forty dollars to purchase the drugs and Hickman got out of the vehicle.
¶ 4. Hickman knocked at the door at 1154 Simmons Street. Williams opened the door. When Hickman entered the house, he saw three rocks of cocaine on the table. Hickman asked to purchase the drugs and Williams handed Hickman two of the rocks of cocaine. Hickman paid Williams forty dollars for the cocaine and Hickman left the premises. There was another individual in the room during the transaction. He was watching television during the transaction and did not speak while Hickman was in the house.
¶ 5. Hickman walked back to the vehicle where Merrill had been listening to the conversation via the recording device Hickman was wearing. Merrill and Hickman went back to the narcotics division, where Merrill searched Hickman to assure that he did not keep any of the cocaine, retrieved the videotape from Hickman, took his statement, and paid him for his services. Hickman had no further involvement in the case.
¶ 6. Williams was indicted for selling cocaine and went to trial on August 31, 2004. At trial, the jury saw the videotape of the transaction as well as testimony from four witnesses. First, Hickman testified to the events that occurred on December 18, 2002. Hickman stated that he knew the defendant by the name of Emmitt Williams, and not by a street name. But Hickman acknowledged that he told Officer Merrill that he purchased the cocaine from an individual named Kojak. A defense witness, Sabrina Cody, testified that she had known Williams for four years and that Williams' nickname was Lil Mac.
*389 ¶ 7. Keith Macmahan, an employee of the Mississippi Crime Laboratory, testified that the substance was cocaine. Additionally, Officer Merrill testified that he interviewed Williams after he watched the video of the transaction. Officer Merrill said Williams waived his rights and confessed to selling cocaine. After hearing the above evidence, the jury returned a verdict of guilty.
LAW AND ANALYSIS
I. WHETHER THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE GUILTY VERDICT
¶ 8. When reviewing a sufficiency of the evidence claim, the Court considers the evidence in the light most favorable to the verdict. Bush v. State, 895 So. 2d 836, 843(16) (Miss.2005). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). If the court reviews the evidence and finds that sustaining the verdict would sanction a manifest injustice, the court must grant a new trial. Burrell v. State, 613 So. 2d 1186, 1191 (Miss.1993). The evidence in this case is sufficient to support the guilty verdict.
¶ 9. Williams claims that there is insufficient evidence because Hickman, the paid informant, had a financial stake in the outcome and he was a convicted felon. Hickman was paid sixty dollars for the transaction. However, Hickman was paid sixty dollars regardless of whether or not Williams was convicted. Therefore, it is not accurate to state that Hickman had a financial stake in the outcome of the trial. Hickman was not going to be paid additional money if the jury returned a particular verdict.
¶ 10. Similarly, Williams' argument that there was insufficient evidence because Hickman was a convicted felon is not accurate. The fact that Hickman was a convicted felon does not provide a motivation to make a false report. Hickman was already convicted and there was no evidence at trial to prove that there were pending charges against Hickman. Even if Hickman had pending charges, that alone is inadequate to show that he exchanged his testimony for a favorable disposition on those pending charges. Fuller v. State, 910 So. 2d 674, 681(20) (Miss.Ct. App.2005).
¶ 11. Williams' contentions that the confidential informant was not credible assumes that the jury relied only on the testimony of the confidential informant. In the present case, there was corroborating circumstantial evidence, such as the actual video and testimony that Williams confessed to the crime, that the jury could have relied on as well. Therefore, the confidential informants credibility does not merit a finding that there was insufficient evidence to support the verdict.
¶ 12. Williams contends that there was a conflict in the case because Hickman testified that he knew the defendant by the name of Emmitt Williams, not by a nickname. Hickman also testified that he told Officer Merrill that he purchased drugs from Kojak. Although Hickman may not have properly identified Williams by name, Hickman identified Williams at trial as the person who sold him the cocaine. Also, Williams admits that he is the individual on the videotape. The fact that Williams admits that he is the individual on the videotape negates his argument that he was not the individual who sold Hickman cocaine because a jury can infer from the videotape that a drug exchange took place.
¶ 13. Williams argues that the video was insufficient evidence because the video *390 does not show drugs or money changing hands. Nevertheless, Hickman testified to the actual exchange and the video showed Williams making statements from which a jury could infer that a drug sale did take place. There was additional evidence that Hickman got out of Officer Merrill's vehicle on Simmons Street with forty dollars and without any drugs. Hickman immediately returned to Officer Merrill's vehicle with two rocks of cocaine and without the forty dollars. This testimony negated Williams' argument that there was not an exchange. Additionally, Officer Merrill was listening to the audio as the transaction occurred.
¶ 14. After reviewing the evidence in the light most favorable to the verdict, a jury could find beyond a reasonable doubt that the drug exchange between Williams and Hickman did take place. Therefore, we find that there was sufficient evidence to support the verdict.
II. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE
¶ 15. "To determine whether a jury verdict is against the overwhelming weight of the evidence, we view all of the evidence in the light consistent with the verdict and we give the State all favorable inferences which may be drawn from the evidence." Strong v. State, 600 So. 2d 199, 204 (Miss. 1992) (citing Corley v. State, 584 So. 2d 769, 773 (Miss.1991)). The decision of the trial court will only be reversed when this Court is convinced that the trial court abused its discretion in failing to grant a new trial. Strong, 600 So.2d at 204. The evidence in this case fully supports the jury verdict.
¶ 16. Again, Williams contends that the verdict was incorrect because the informant told Officer Merrill that he purchased cocaine from Kojak, not from Williams. However, Williams agrees that he is the individual on the video. As previously discussed, there was an abundance of corroborating evidence that a reasonable jury could have relied on in identifying the person who committed the crime. Therefore, the guilty verdict was not against the overwhelming weight of the evidence.
III. WHETHER THE TRIAL COURT'S SENTENCE WAS CRUEL AND UNUSUAL PUNISHMENT
¶ 17. Generally, a sentence will not be disturbed on appeal as long as it does not exceed the maximum term allowed by statute. Wallace v. State, 607 So. 2d 1184, 1188 (Miss.1992). However, if a sentence is "grossly disproportionate" to the crime committed, the sentence is subject to attack on the grounds that it violates the prohibition of cruel and unusual punishment under the Eighth Amendment. Id. Williams was convicted for selling cocaine under Mississippi Code Annotated section 41-29-139. Mississippi Code Annotated section 41-29-139(b)(1) states the maximum sentence for this crime is thirty years. This crime carries a heavy penalty because the Mississippi legislature has responded to the public concern over serious drug problems. Stromas v. State, 618 So. 2d 116, 123 (Miss.1993). Williams was sentenced to twenty-five years in the Mississippi Department of Correction with five years suspended. Because Williams' sentence was within the statutory guidelines, the sentence is not grossly disproportionate to the crime committed. This claim is without merit.
¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF THE SECOND JUDICIAL DISTRICT OF JONES COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY *391 OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS SUSPENDED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591539/ | 686 N.W.2d 642 (2004)
12 Neb.App. 891
In re GUARDIANSHIP and Conservatorship OF Leslie E. BOWMAN, a formerly protected and incapacitated person, deceased.
William Kratville, Personal Representative of the Estate of Leslie E. Bowman, deceased, appellee,
v.
Therese M. Rosse, individually and as Guardian and Conservator of Leslie E. Bowman, a formerly protected and incapacitated person, appellant. In re Guardianship & Conservatorship of Bowman.
No. A-03-1207.
Court of Appeals of Nebraska.
September 28, 2004.
Jay L. Welch and Michelle D. Epstein, of Locher, Cellilli, Pavelka & Dostal, L.L.C., Omaha, for appellant.
Michael B. Kratville, Omaha, for appellee.
*643 IRWIN, Chief Judge, and SIEVERS and CARLSON, Judges.
IRWIN, Chief Judge.
I. INTRODUCTION
Therese M. Rosse, individually and as guardian and conservator of Leslie E. Bowman, a formerly protected and incapacitated person now deceased, appeals from an order of the county court for Douglas County. In its order, the county court granted motions filed by William Kratville, intervenor and personal representative of Bowman's estate, in which motions Kratville sought a clarification of a prior order of the county court. Because we find that the county court was without authority to enter an order "clarifying" its prior order, the county court's order must be reversed and the case remanded with directions to dismiss.
II. BACKGROUND
On September 18, 2001, Rosse filed a petition for her appointment as guardian and conservator for Bowman. On October 25, the county court appointed Rosse as guardian and conservator for Bowman.
On April 23, 2002, Bowman died. On May 8, Rosse filed a motion for approval of her final accounting, in which motion she requested payment of guardian and conservator fees and attorney fees. On May 21, the county court rendered an order approving the final accounting for the period of October 25, 2001, through May 6, 2002, and awarding Rosse guardian and conservator fees and attorney fees. On September 6, Rosse was discharged as guardian and conservator.
Kratville is the personal representative in separate county court estate proceedings for Bowman's estate. On July 17, 2003, Kratville filed two motions, seeking to intervene in the previously closed guardianship and conservatorship proceedings and to have the county court therein "clarify" whether the May 21, 2002, order approving the final accounting and payment of fees to Rosse was intended to compensate Rosse for services she performed on Bowman's behalf prior to being appointed guardian and conservator or to compensate her only for services she performed after being so appointed. Kratville specifically indicated that the county court judge presiding over the estate proceeding, Lyn V. White, had requested that Kratville seek a clarification from the county court judge who had presided over the guardianship and conservatorship proceedings, Thomas G. McQuade.
On September 26, 2003, the county court entered an order granting Kratville's motions. The court specifically indicated that "[t]he court is of the understanding that it is always proper to correct errors where such errors exist or to resolve any misunderstandings." (Emphasis supplied.) The court further indicated that at the time of the hearing on Rosse's May 8, 2002, motion for approval of her final accounting, the court received an exhibit which detailed Rosse's time spent on Bowman's behalf between March 1996 and April 21, 2002, which included a significant period of time prior to Rosse's appointment as guardian and conservator. Finally, the court specifically noted that when awarding Rosse fees in the May 21, 2002, order, the court took "the totality" of the exhibit into account in determining the amount of fees to award Rosse. This appeal followed.
III. ASSIGNMENT OF ERROR
Rosse's sole assignment of error is that the county court was without authority to entertain Kratville's motions.
*644 IV. ANALYSIS
Rosse argues that the county court was without authority to entertain Kratville's motions to intervene and to "clarify" the court's prior order. We agree and specifically find that the county court was without authority to enter any order clarifying the language or intention of the May 21, 2002, order, from which no appeal was ever taken.
1. JURISDICTION OF APPELLATE COURT
We first address the question of whether we have jurisdiction to hear this appeal. Kratville argues on appeal that we lack jurisdiction because the September 26, 2003, order entered by the county court was not a final, appealable order under Neb.Rev.Stat. § 25-1902 (Reissue 1995). Although we agree that we do not have jurisdiction to review the merits or substance of the county court's order, we specifically find that we do have jurisdiction to determine whether the county court had jurisdiction to enter the order, which is the primary question raised by Rosse's appeal.
In Currie v. Chief School Bus Serv., 250 Neb. 872, 553 N.W.2d 469 (1996), the Nebraska Supreme Court addressed the question of whether it had jurisdiction to hear an appeal from an order entered by a lower court when the lower court was without authority to enter the order. In Currie, the lower court had entered an order at a time when a previous appealable order had been appealed and the lower court had been divested of jurisdiction over the case. The Supreme Court held that in that circumstance, although an extrajurisdictional act of a lower court cannot vest an appellate court with jurisdiction to review the merits of an appeal, the appellate court has jurisdiction and, moreover, the duty to determine whether the lower court had the power, that is, the subject matter jurisdiction, to enter the judgment or other final order sought to be reviewed. Id.
The present case is factually comparable to Currie. In the present case, the question raised on appeal is whether the lower court had jurisdiction to enter the order being appealed from. As noted above, although we do not have jurisdiction to address the merits of the order entered, we do have jurisdiction to determine whether the lower court had jurisdiction to enter the order in the first instance.
2. JURISDICTION OF LOWER COURT
Having concluded that we have jurisdiction to resolve the issue raised in Rosse's appeal, namely whether the county court had authority or jurisdiction to enter the order clarifying its previous order, we next consider whether the county court could properly enter an order clarifying its prior order. We conclude that established Nebraska law prohibits an order such as the one entered on September 26, 2003, by the county court in this case.
At the hearing on Kratville's motions, the county court specifically indicated:
I certainly think the Court has the right to reopen its files at any time in order to correct any mistakes that were made or to clarify any orders that were issued. Certainly not to change any orders that were issued and I'm not intending to do that at all. I thought it was fairly clear with the order and the exhibit and what was happening.
We specifically disagree and disapprove of the county court's position that it can "certainly ... reopen its files at any time... to clarify any orders that were issued." Although neither party cites this court to the applicable authority, there is longstanding precedent from the Nebraska Supreme Court indicating that trial courts are without authority to reopen their files *645 and enter orders "interpreting" or "clarifying" prior orders after the time for a proper appeal has passed.
In Neujahr v. Neujahr, 223 Neb. 722, 728, 393 N.W.2d 47, 51 (1986), the Nebraska Supreme Court specifically noted that "neither what the parties thought the judge meant nor what the judge thought he or she meant, after time for appeal has passed, is of any relevance" and that "[w]hat the decree, as it became final, means as a matter of law as determined from the four corners of the decree is what is relevant." To allow a court to "re-open" its files and enter an order "clarifying" what was intended or meant by the language used in a prior order would run afoul of the sanctity of the principles underlying finality in litigation. See Neujahr v. Neujahr, supra. To allow the procedure utilized in the present case would allow the meaning of the county court's May 21, 2002, order to be altered by way of "clarifications" at the whim of anyone seeking to later "reopen" the case, and such alteration is specifically not authorized.
Kratville argues on appeal that Rosse's position that the county court lacked authority to entertain his motions is an "absurdity." Brief for appellee at 3. Kratville asks, "Why would [Kratville] lack the capacity to intervene for the limited purpose of asking Judge McQuade what he meant? If not [Kratville], then whom [sic]?" Id. The answers to Kratville's questions are that he lacks the capacity to intervene for the purpose of asking the county court what was meant because the county court's order had long since become final and because the county court is not allowed to later enter an order "interpreting" or "clarifying" what was meant and that nobody has the capacity to ask the county court to do so. In light of the Nebraska Supreme Court's teaching on this issue, Rosse's position is far from absurd and is, in fact, the only legally supportable position.
Additionally, we are not persuaded by Kratville's argument that Neb.Rev.Stat. § 25-2001(3) (Cum.Supp.2002) provides authority for the action taken by the county court in this case. Section 25-2001(3), which section is the result of legislative amendments enacted in 2000, provides authority for trial courts to use an order nunc pro tunc to correct "[c]lerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission." We find the order of the county court appealed in this case to be significantly different from an order nunc pro tunc to correct a clerical error, inasmuch as the effect of the order appealed in this case is to potentially effect a substantive change in the prior order, not to remedy a mere clerical error. We do not think the present situation is contemplated by the plain language of § 25-2001(3).
In this case, as in Neujahr v. Neujahr, supra, the judgment had long since become final prior to the motions to intervene and "clarify" the judgment. Neujahr leaves no doubt that the rule in Nebraska is that there is no procedure authorizing a court to "interpret" or "clarify" its prior final orders, and this court must thus find that the county court lacked subject matter jurisdiction to entertain Kratville's motions. Further, although we are mindful of Neb. Ct. R. of Prac. 2E(4) (rev.2000), we note that this court has previously reached the same result on comparable facts, in a decision that was not designated for permanent publication. See Kremer v. Kremer, No. A-91-326, 1993 WL 80602 (Neb. App. Mar.23, 1993) (not designated for permanent publication). Since the county court was without authority to clarify its prior order, the order of September 26, *646 2003, must be reversed and the case remanded with directions to dismiss. See id.
V. CONCLUSION
The county court was without authority to clarify its prior order. The county court's order of September 26, 2003, must be reversed and the case remanded with directions to dismiss.
REVERSED AND REMANDED WITH DIRECTIONS TO DISMISS. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591532/ | 686 N.W.2d 495 (2004)
262 Mich.App. 421
TUSCOLA COUNTY BOARD OF COMMISSIONERS, Plaintiff-Appellant,
v.
TUSCOLA COUNTY APPORTIONMENT COMMISSION, Defendant-Appellee.
Docket No. 242105.
Court of Appeals of Michigan.
Submitted November 5, 2003, at Detroit.
Decided June 15, 2004, at 9:10 a.m.
Released for Publication September 1, 2004.
*496 Nantz, Litowich, Smith & Girard (by John H. Gretzinger), Grand Rapids, for the plaintiff.
Mark E. Reene, Prosecuting Attorney, Caro, for the defendant.
Before: SCHUETTE, P.J., and MARK J. CAVANAGH and WHITE, JJ.
MARK J. CAVANAGH, J.
Plaintiff appeals as of right from a declaratory judgment denying its claim that a county board of commissioners has a right under MCL 46.401 to apportion the county into commissioner districts. We affirm.
The sole issue on appeal concerns the interpretation of MCL 46.401, which provides:
Within 60 days after the publication of the latest United States official decennial census figures, the county apportionment commission in each county of this state shall apportion the county into not less than 5 nor more than 35 county commissioner districts as nearly of equal population as is practicable and within the limitations of section 2. In counties under 75,000, upon the effective date of this act, the boards of commissioners of such counties shall have not to exceed 30 days into which to apportion their county into commissioner districts in accordance with the provisions of this act. If at the expiration of the time as set forth in this section a board of commissioners has not so apportioned itself, the county apportionment commission shall proceed to apportion the county under the provisions of this act.
The second sentence is the primary focus of the dispute. Plaintiff argues that the sentence is unambiguous and must be enforced as written, particularly the phrase "upon the effective date of this act." Plaintiff argues that this phrase modifies the antecedent phrase "[i]n counties under *497 75,000" and not the subsequent phrase "the boards of commissioners. . . ." According to plaintiff, then, the correct meaning of the second sentence is that "[t]he boards of commissioners of the 65 counties under 75,000 in population as of March 10, 1967, are permitted 30 days to attempt to complete [the] apportionment process." Further, that without regard to whether population growth subsequently surpasses 75,000, this right inheres in these counties in perpetuity.
In Kizer v. Livingston Co. Bd. of Comm'rs, 38 Mich.App. 239, 195 N.W.2d 884 (1972), this Court considered the same argument that plaintiff posits here. But, plaintiff urges us to reconsider and, ultimately, reject Kizer as wrongly decided. We are not bound by Kizer, MCR 7.215(I)(1), but we remain convinced that Kizer should not be disturbed.
The Kizer Court framed the issue as
whether § 1 of the County Reapportionment Act granted county boards of commissioners in counties having less than 75,000 population in 1960 a 30-day period following publication of each official United States decennial census in which said boards could apportion themselves, or whether this option was restricted to the 30-day period following the effective date of the original act. [Id. at 246, 195 N.W.2d 884.]
After concluding that the statutory language was ambiguous, the Kizer Court proceeded to utilize the rules of statutory construction to resolve the ambiguity. Id. First, plaintiff claims that the statute is not ambiguous and, thus, the Kizer Court erred in concluding that it was. We disagree.
Statutory language is deemed ambiguous if reasonable minds could differ with regard to its meaning, i.e., the language is susceptible to more than one interpretation. In re MCI, 460 Mich. 396, 411, 596 N.W.2d 164 (1999). Here, it is not the words of the statute per se that lead to ambiguity, but the punctuation, in particular, the two commas in the second sentence. Does the statute direct the boards of commissioners in counties with populations under 75,000 to apportion their counties, one time, into commissioner districts within thirty days of the date that this apportionment act became effective? Or, does the statute grant counties with populations under 75,000 on the effective date of the act the right to apportion their counties into commissioner districts every ten years and within 30 days of the release of the United States official census figures?
Plaintiff argues that the "last antecedent" rule should govern the construction of this statute. That grammatical rule provides "that a modifying or restrictive word or clause contained in a statute is confined solely to the immediately preceding clause or last antecedent, unless something in the statute requires a different interpretation." Stanton v. Battle Creek, 466 Mich. 611, 616, 647 N.W.2d 508 (2002). Stated differently, "`"a modifying clause is confined to the last antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation."'" Haveman v. Kent Co. Road Comm, 356 Mich. 11, 18, 96 N.W.2d 153 (1959), quoting Kales v. Oak Park, 315 Mich. 266, 271, 23 N.W.2d 658 (1946), quoting Hopkins v. Hopkins, 287 Mass. 542, 547, 192 N.E. 145 (1934).
According to plaintiff, then, the qualifying phrase "upon the effective date of this act" is only applicable to the phrase "[i]n counties under 75,000." The Kizer Court rejected that argument, opining that such a construction would require a determination that the comma between the words "75,000" and "upon" was inadvertent, which was untenable in light of the importance *498 of punctuation in determining legislative intent and the presumption that the Legislature is cognizant of the rules of grammar. Kizer, supra at 250-251, 195 N.W.2d 884. Instead, the Kizer Court interpreted "upon the effective date of this act" as triggering "not to exceed 30 days" and held that such interpretation was consistent with the rule of the last antecedent. Id. at 252, 195 N.W.2d 884. I disagree with both plaintiff's and the Kizer Court's interpretations. If the phrase "upon the effective date of this act" is a modifying or restrictive phrase within the contemplation of the rule of the last antecedent, I conclude that its exception is applicable here, i.e., the rule does not apply because "there is something in the subject matter or dominant purpose which requires a different interpretation."
Because the statute is ambiguous, judicial construction is required to resolve the ambiguity. Our primary goal is to ascertain and give effect to the intent of the Legislature. Gladych v. New Family Homes, Inc., 468 Mich. 594, 597, 664 N.W.2d 705 (2003). We consider the object of the statute, as well as the harm it was designed to remedy, and apply a reasonable construction that best accomplishes the statute's purpose. Marquis v. Hartford Accident & Indemnity Co (After Remand), 444 Mich. 638, 644, 513 N.W.2d 799 (1994). We assume that every word has some meaning and, as far as possible, give effect to every sentence, phrase, clause, and word, avoiding a construction that would render any part of the statute surplusage or nugatory. Pohutski v. City of Allen Park, 465 Mich. 675, 683-684, 641 N.W.2d 219 (2002).
First, we turn to the specific language of MCL 46.401. The first and second sentences seem to present an inconsistency. The first sentence mandates, through the use of the word "shall," that "the county apportionment commission in each county of this state" apportion its county into commissioner districts. See Roberts v. Mecosta Co. Gen. Hosp., 466 Mich. 57, 65, 642 N.W.2d 663 (2002) (the word "shall" designates a mandatory provision). Accordingly, it specifically assigns these apportionment responsibilities to county apportionment commissions in every county of the state, without reservation or qualification.
The second sentence then states "[i]n counties under 75,000, upon the effective date of this act, the boards of commissioners of such counties shall have not to exceed 30 days into which to apportion their county into commissioner districts in accordance with the provisions of this act." Does this second sentence create an exception to the mandated assignment created by the first sentence? Although the Kizer Court applied the in pari materia rule to these two sentences, Kizer, supra at 251, 195 N.W.2d 884, I find it inapplicable. See Jennings v. Southwood, 446 Mich. 125, 136, 521 N.W.2d 230 (1994), quoting Wayne Co. v. Auditor General, 250 Mich. 227, 233, 229 N.W. 911 (1930) (the object of the in pari materia rule is to give effect to the legislative purpose as found in harmonious statutes on a subject).
Because we are not permitted to add provisions to statutes under the guise of interpretation, In re Wayne Co. Prosecutor, 232 Mich.App. 482, 486, 591 N.W.2d 359 (1998), we focus on the existing provisions, in context, in an attempt to construct a harmonious statute. See Macomb Co. Prosecutor v. Murphy, 464 Mich. 149, 159, 627 N.W.2d 247 (2001). The result of that effort is the conclusion that the second sentence was not an attempt to deprive the first sentence of its substantive force, but to carve out a small window of opportunity for the boards of commissioners in counties under 75,000 to have the *499 final opportunity to perform apportionment duties. The other provisions in this apportionment act support this conclusion. As the Kizer Court noted, no other statute in this act refers to county boards of commissioners as apportionment entities. See Kizer, supra at 252, 195 N.W.2d 884. Only county apportionment commissions are designated as having apportionment powers and are repeatedly referenced accordingly. See MCL 46.403, 46.404, 46.405, 46.407. If the Legislature intended to grant the boards of commissioners in counties with populations under 75,000 a perpetual right to apportion their counties every ten years, regardless of their population growth subsequent to March 10, 1967, such right would have been clearly and unambiguously stated and referred to throughout the apportionment act.
Plaintiff's argument that the legislative history of this apportionment act refutes the Kizer Court's decision and, now, our own conclusion, is not persuasive. We agree that consideration of legislative history can be beneficial to issues of statutory interpretation, In re Certified Question, 468 Mich. 109, 115 n. 5, 659 N.W.2d 597 (2003), and have reviewed the legislative history. We agree with the Kizer Court's analysis of the relevant legislative proceedings and need not repeat it here. See Kizer, supra at 243-249, 195 N.W.2d 884. We also agree with the Kizer Court's ultimate conclusion regarding the dominant purpose of this apportionment act and its characterization of the harm the act was designed to remedy:
The apportionment act established a sophisticated, progressive, comprehensive mechanism designed to eliminate the archaic apportioning procedures then extant. Given the traditional inability of existing political bodies to apportion themselves, it is not likely that the Legislature intended that this newly-developed apportionment mechanism should perpetually be inapplicable to 65 of Michigan's 83 counties. [Kizer, supra at 255, 195 N.W.2d 884.]
Review of the legislative history reveals, as the Kizer Court noted, that the Legislature had the opportunity to "create a mechanism whereby county Boards of Commissioners would have a perpetual option to apportion themselves," and such option was rejected. Kizer, supra at 256, 195 N.W.2d 884. Further, the Legislature has revisited this apportionment act after the issuance of the Kizer decision and has failed to amend the language of MCL 46.401. The Legislature is presumed to act with knowledge of appellate court statutory interpretations. Gordon Sel-Way, Inc. v. Spence Bros., Inc., 438 Mich. 488, 505-506, 475 N.W.2d 704 (1991). The failure to amend the language following this Court's construction of it over thirty years ago suggests legislative affirmance of our interpretation. See Craig v. Larson, 432 Mich. 346, 353, 439 N.W.2d 899 (1989). We will not second-guess the Kizer Court or the Legislature now.
In sum, MCL 46.401 is ambiguous. Even if the rule of the last antecedent were applicable, it would not govern the interpretation of this statute because the resulting construction would be contrary to the clear mandate of the preceding sentence, and would be inconsistent with the dominant purpose of the statute. We will not defeat the clear and explicit language of one sentence in an attempt to decipher the ambiguities of another. Instead, we attempt to harmonize apparent inconsistencies so as to produce a reasonable construction that best accomplishes the statute's purpose here, the establishment of apportionment procedures that effectively and efficiently protect the integrity of the political process. See, e.g., Avery v. Midland Co., 390 U.S. 474, 479-481, 88 S. Ct. 1114, 20 L. Ed. 2d 45 (1968). The Kizer *500 Court's construction of MCL 46.401 fulfilled that objective and we agree with it. The legislative history does not affirmatively or persuasively lead to a different construction. Accordingly, pursuant to MCL 46.401, county apportionment commissions in each county of the state have the exclusive right and duty to apportion their respective counties within sixty days after the publication of the latest United States official decennial census figures.
Affirmed.
SCHUETTE, P.J. (concurring).
I concur in the decision reached by my distinguished colleague in the lead opinion. Specifically, pursuant to MCL 46.401, "county apportionment commissions in each county have the exclusive right and duty to apportion their respective counties within sixty days after the publication of the latest United States decennial census figures." Ante at 500.
The issue presented before this Court was whether MCL 46.401 provided county boards of commissioners in Michigan counties populated by less than 75,000 people a one-time window of opportunity to self-apportion or whether the opportunity to self-apportion was perpetually granted to those counties upon the effective date of the statute, regardless of their later population growth.
Thirty-two years ago, in Kizer v. Livingston Co. Bd. of Comm'rs, 38 Mich.App. 239, 195 N.W.2d 884 (1972), this Court reached the correct decision in overruling a 1970 opinion of Attorney General Frank Kelly by holding the disputed statutory language namely, the phrases "in counties under 75,000" and "upon the effective date of this act" constituted a one-time opportunity, effectively the last, for county boards of commissioners to conduct apportionment, instead of a county apportionment commission. The conclusion reached in Kizer is dispositive in this case.
While the Kizer Court ultimately reached the correct legal decision, its analytical approach contains some fault lines.[1] Therefore, I raise some objections and concerns with the reasoning in Kizer and with certain aspects of the lead opinion.
Our task in construing statutes is to discern and give effect to the intent of the Legislature. Weakland v. Toledo Engineering Co., 467 Mich. 344, 347, 656 N.W.2d 175 (2003). To accomplish this task, we begin by examining the language of the statute itself because statutory language provides the most reliable evidence of legislative intent. United States v. Turkette, 452 U.S. 576, 593, 101 S. Ct. 2524, 69 L. Ed. 2d 246 (1981). If the language of the statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written; no further judicial construction is permitted. Sun Valley Foods Co. v. Ward, 460 Mich. 230, 236, 596 N.W.2d 119 (1999). Thus, judicial statutory construction is only appropriate when a statute's language is ambiguous, that is, it can lend itself to two rational interpretations. Id.
Admittedly, the inclusion of the separating comma that divides the disputed statutory clauses creates such ambiguity. Yet the Kizer Court and the lead opinion in this case placed undue emphasis on the inclusion of the separating comma between the clauses. Presuming exacting legislative knowledge of grammatical rules *501 namely, the "last-antecedent" rule[2] both the Kizer Court and the lead opinion found legislative intent suggesting that the disputed phrase was not intended to modify the first clause of the second sentence. Kizer, supra at 251, 195 N.W.2d 884. Ante at 498. Notably, however, the Kizer Court purported to apply the last-antecedent rule, while the lead opinion applied the rule's exception.[3] Yet the two came to the same conclusion.
I contend this preoccupation with legislative knowledge of rules of grammar is misplaced. Our Supreme Court has noted, "[r]elying [too] heavily upon the absence of a punctuation mark ... exalts form over substance. Although the form and location of a [clause] may be some indication of legislative intent, form alone will not control." In re Forfeiture of $5,264, 432 Mich. 242, 253, 439 N.W.2d 246 (1989); see 2A Sands, Sutherland Statutory Construction, § 47.09, p 138. The same is true when a nonconforming comma is included in statutory language that only makes sense if read in a particular light after considering the legislative history. 432 Mich. at 242, 439 N.W.2d 246; Sands, p 138. Since the rules of statutory construction require that the intent of the Legislature, once ascertained, prevail regardless of any conflicting rule of grammar or statutory construction, Green Oak Twp. v. Munzel, 255 Mich.App. 235, 240, 661 N.W.2d 243 (2003), this Court should not grapple with stringent grammatical rules when legislative intent can be more easily ascertained through other means. Rather, it is more appropriate to consider the object of the statute, the harm it is designed to remedy, and apply a reasonable construction that best accomplishes the statute's purpose. People v. Lawrence, 246 Mich.App. 260, 265, 632 N.W.2d 156 (2001). After all, our primary task is to interpret the language of a statute interpreting its grammatical structure is a secondary concern. Thus, I contend that, in construing statutes, this Court should apply exact grammatical rules, arguably divested from common usage, only after other methods of discerning legislative intent are exhausted.
My second objection to the analysis used by Kizer and the lead opinion is their reliance on the doctrine of legislative acquiescence. This principle of statutory construction has been squarely rejected by our Supreme Court because it reflects a critical misapprehension of the legislative process. People v. Hawkins, 468 Mich. 488, 507, 668 N.W.2d 602 (2003); See Robertson v. DaimlerChrysler Corp., 465 Mich. 732, 760 n. 15, 641 N.W.2d 567 (2002); Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 177-178 n. 33, 615 N.W.2d 702 (2000). Rather, Michigan courts are required to determine legislative intent by the Legislature's words not its silence. Hawkins, supra at 507, 668 N.W.2d 602. The Legislature's silence in regard to this statutory language has no dispositive effect on our interpretation. I believe the lead opinion erred by including this doctrine as a basis for its decision.
WHITE, J. (concurring).
I agree that Kizer v. Livingston Co. Bd. of Comm'rs, 38 Mich.App. 239, 195 N.W.2d 884 (1972), should be not be overturned, and therefore concur.
NOTES
[1] See In re Apportionment of Tuscola Co. Bd. of Comm'rs, 466 Mich. 78, 84 n. 6, 644 N.W.2d 44 (2002).
[2] The grammatical "last-antecedent" rule holds that a modifying word or clause is confined solely to the last antecedent. Sun Valley Foods Co. v. Ward, 460 Mich. 230, 237, 596 N.W.2d 119 (1999). The rule does not apply if a contrary intention appears. Id.
[3] Kizer, supra at 252, 195 N.W.2d 884; ante at 498. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591377/ | 14 So. 3d 1087 (2009)
B.L.S., A Child, Appellant,
v.
STATE of Florida, Appellee.
No. 5D08-2207.
District Court of Appeal of Florida, Fifth District.
June 5, 2009.
*1088 James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.
COHEN, J.
Appellant, B.L.S., challenges his delinquency adjudication for possession of a firearm with serial number altered or removed in violation of section 790.27(2)(a), Florida Statutes (2008), and the trial court's failure to resentence him after granting his motion to correct sentencing error by striking the serious habitual offender ("SHO") designation. We affirm the delinquency adjudication,[1] but reverse and remand for a new disposition hearing.
Appellant argues for the first time on appeal that the trial court erred in denying his motion for judgment of dismissal of possession of a firearm with altered serial number because there was no evidence that he knowingly possessed a gun on which the serial number had been altered or removed. Appellant's counsel argued that the evidence did not show that the gun was in Appellant's possession because *1089 it was merely found within the perimeter area. However, Appellant's counsel never raised any question about his client's knowledge of the gun's altered serial number.
Generally, for an argument to be cognizable on appeal, it must be the specific contention asserted as the legal ground for the objection, exception, or motion below. Steinhorst v. State, 412 So. 2d 332, 338 (Fla.1982). However, when challenging the sufficiency of the evidence, a contemporaneous objection is not required when the evidence is insufficient to show a crime was committed at all. F.B. v. State, 852 So. 2d 226, 229 (Fla.2003). Although there was no direct evidence that Appellant knew the serial number was altered, viewing the evidence in the light most favorable to the State, a fair inference arises that Appellant knew the revolver's serial number was altered. Accordingly, we affirm the adjudication for possession of a firearm with an altered serial number.
The trial court conducted a disposition hearing after reviewing a PDR. The State noted that Appellant was eligible for a Level 10 and a SHO program, and the DJJ recommended a high-risk Level 8. The State and DJJ sought SHO designation under section 985.47(1)(b), Florida Statutes (2008), based upon Appellant's age of over 13, a current felony offense, and at least two previous delinquency commitment programs. Appellant's counsel agreed that Appellant met the criteria of section 985.47(1)(b). The trial court adjudicated Appellant guilty of the offenses, found he met the qualifications for SHO treatment, and adjudicated him a SHO. The trial court entered a Level 8 placement disposition on the three counts.
Appellant filed a motion pursuant to Florida Rule of Juvenile Procedure 8.135(b)(2), to strike the SHO designation as an improper enhancement for the use of a firearm inherent in the current offenses. Since the original SHO designation was based, however, upon subsection 985.47(1)(b), rather than subsection (1)(a)(14), the trial court mistakenly granted the motion.
Upon resentencing, which is a completely new proceeding with no obligation for the trial court to make the same findings it made in the prior proceeding, the trial court could again impose the SHO designation. See Phillips v. State, 705 So. 2d 1320, 1322 (Fla.1997); Orta v. State, 919 So. 2d 602, 604 (Fla. 3d DCA 2006).
Accordingly, we affirm Appellant's delinquency adjudication and remand for a new disposition hearing.
AFFIRMED AND REMANDED.
SAWAYA and MONACO, JJ., concur.
NOTES
[1] Appellant was also adjudicated delinquent for possession of a firearm by a person deemed to have committed a delinquent act, a second-degree felony, and carrying a concealed firearm, a third-degree felony, but neither was appealed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2455637/ | 251 P.3d 112 (2011)
PILAND-BROWN
v.
KANSAS DEPT. OF REVENUE.
No. 104628.
Court of Appeals of Kansas.
April 29, 2011.
Decision Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591753/ | 936 So. 2d 1164 (2006)
Johnnie C. ROBINSON, Appellant,
v.
STATE of Florida, Appellee.
No. 1D05-3046.
District Court of Appeal of Florida, First District.
August 24, 2006.
*1165 Nancy A. Daniels, Public Defender; and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
Charlie Crist, Attorney General; and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
*1166 BROWNING, J.
Johnnie C. Robinson (Appellant) was charged by information with the manufacture of cocaine (Count One), possession of cocaine with intent to sell or deliver (Count Two), maintaining a place where controlled substances are used (Count Three), and possession of drug paraphernalia (Count Four). At the close of the State's case, defense counsel moved for a judgment of acquittal (JOA) on all counts. The trial court granted a JOA for Counts One and Three, dropped the "intent to sell" element of Count Two, and denied the motion on Count Four. Appellant contends that the trial court erred in sending to the jury the charges of possession of cocaine and possession of drug paraphernalia. Because the State made a prima facie case on the counts that were sent to the jury, the trial court ruled correctly on the motion for JOA. Accordingly, we affirm Appellant's conviction and sentence.
We review de novo the trial court's denial of a motion for JOA, to determine solely whether the evidence is legally sufficient. See Pagan v. State, 830 So. 2d 792, 803 (Fla.2002); Jones v. State, 790 So. 2d 1194, 1196 (Fla. 1st DCA 2001) (en banc). Given the lack of evidence that Appellant actually possessed the cocaine and the drug paraphernalia, the State had to prove constructive possession to sustain the convictions. See Lester v. State, 891 So. 2d 1219, 1220 (Fla. 2d DCA 2005). "Proof based entirely on circumstantial evidence can be sufficient to sustain a conviction in Florida." Orme v. State, 677 So. 2d 258, 261 (Fla.1996). When a case is based solely on circumstantial evidence, a special standard of review of the sufficiency of the evidence applies. The evidence must be inconsistent with any reasonable hypothesis of innocence for the conviction to be sustained. See State v. Law, 559 So. 2d 187, 188 (Fla.1989); P.M.M. v. State, 884 So. 2d 418, 419-20 (Fla. 2d DCA 2004). However, the State is not required to rebut conclusively every possible variation of events that could be inferred from the evidence, but only to introduce competent evidence that is inconsistent with the defendant's theory of events. See Law, 559 So.2d at 189; State v. Allen, 335 So. 2d 823, 826 (Fla.1976). Once the State introduces such evidence, it is the jury's duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. See Law, 559 So.2d at 189. The legal test for determining whether a JOA should be granted is "whether after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment." Tibbs v. State, 397 So. 2d 1120, 1123 (Fla.1981). The Fourth District Court has stated the general rule governing constructive possession:
Proof of guilt based on a constructive possession theory consists of three basic elements:
(1) The accused must have dominion and control over the contraband.
(2) The accused must have knowledge that the contraband is within his presence, and;
(3) The accused must have knowledge of the illicit nature of the contraband.
Wale v. State, 397 So. 2d 738, 739 (Fla. 4th DCA 1981); see Jean v. State, 638 So. 2d 995, 996 (Fla. 4th DCA 1994); Julian v. State, 545 So. 2d 347, 348 (Fla. 1st DCA 1989). "[E]ach of these elements may be proved by circumstantial evidence." Wale, 397 So.2d at 739. The following rule governs cases in which the location of the drugs and paraphernalia is not in the defendant's exclusive possession, but is jointly possessed:
*1167 If the place in which the contraband is found is not in the exclusive possession of the accused, but only in his joint possession, his knowledge of the presence of the contraband on the premises and his ability to maintain control over it will not be inferred, but must be established by extra proof. Such proof may consist either of evidence establishing that the accused had actual knowledge of the presence of the contraband in the place where it is found, or circumstantial evidence from which a jury might properly infer that the accused had knowledge of the presence of the contraband.
Id. at 740; see State v. Giralt, 871 So. 2d 983 (Fla. 3d DCA 2004); Julian, 545 So.2d at 348.
Viewing the evidence and all reasonable inferences therefrom in the light most favorable to the State, in accordance with Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974), we conclude that the State presented evidence to support every element of possession of cocaine and possession of drug paraphernalia. Accordingly, the trial court correctly denied the motion for JOA as to the counts in question.
According to Investigator Sam Gereg, of the Vice and Narcotics Unit of the Tallahassee Police Department, a search warrant was served at a very small house at 1809 West Pensacola Street on July 2, 2004. No one was at home when the warrant was served. Richard Singletary testified that he owned this rental property; he estimated the size of the home to be 800-900 square feet. The house has two bedrooms (designated northwest and southwest by the authorities for purposes of location and description), a kitchen, and a living room. At the time of the search, Charles Reddick was named on the lease of the home and had been a tenant for about one and one-half years. Appellant's name was not on the lease, and the owner had no rental agreement with him. The owner testified that Appellant was the only roommate about whom he knew, but the owner could not say for certain that Appellant was a roommate. However, the owner frequently saw Appellant coming and going at the house, as many times as two or three times a week over a six- to eight-week period when the owner was working on his next-door rental property. It was not unusual for the owner to allow roommates who were not named on the rental agreement; in fact, he allowed it "all the time." The owner testified that Appellant sometimes had brought the rent payment to him on Mr. Reddick's behalf and had received a receipt made out to Mr. Reddick. The owner testified that after he was asked to change the carpeting in the house, he went inside the home and Appellant helped him with this project. The owner had never seen drugs or drug paraphernalia in the home.
For purposes of resolving the issue on appeal, we focus on the northwest bedroom in the home. Investigator Gereg testified the northwest bedroom had a small dresser, wall shelving, a very small futon-type single bed, and a closet. This bedroom was fully decorated, appeared fully furnished and occupied, and had Coca-Cola souvenirs and other mementos on the shelves. Everything observed by the investigator during the search indicated that only one person, Appellant, resided in that bedroom. A shoebox was filled with photographs that consistently included a gentleman whom the witness identified as Appellant. Various items of paperwork were found on the dresser just inside the bedroom door and on the shelves and by the closet. In that bedroom, every piece of paper that had a name on it had Appellant's first name or his full name, and no other paperwork was found with anyone else's name on it. The paperwork included *1168 an envelope addressed to Appellant, and a second one (postmarked late April 2004) addressed to "Shamaka and Johnny," although both envelopes listed a different address from that of the home searched. Investigator Gereg testified from personal knowledge that the envelope listing Appellant's name alone had an address that had been Appellant's mother's address for seven years. The investigator found Western Union money transfer forms listing Appellant as the "Sender." A deposit form listed "Johnny" as the first name, and a handwritten note with a date of May 2, 2004, was sent to "Johnny." A civil writ of bodily attachment from a court addressed to Appellant (at a different address from the searched home) indicated his child-support arrearage. Three U.S. Postal Service receipts found in the bedroom were dated June 8, 2004, i.e., less than a month before the search warrant was served.
Investigator Gereg testified that the small, waist-high dresser was in the northwest bedroom just inside the door. The top drawer had underwear in it; another drawer had T-shirts. The drawers did not contain dividers to suggest that two people were sharing the space. The small closet had a full wardrobe, and all the shoes and clothes appeared to be of one consistent size. The witness opined that the room appeared to be fully occupied.
Investigator Gereg testified that a plastic bag found in the top drawer of the dresser in the northwest bedroom contained 8.72 grams of crack cocaine. Another 6.54 grams of powdered cocaine was found in the same dresser. The photographic evidence indicates one of these plastic baggies was found wrapped in what appears to be a pair of men's boxer shorts. A 302-gram bag of white, powdery "Come Back Incense" was found in a black shopping bag on a shelf in that bedroom. Numerous small plastic bags were found in the third drawer and on top of the dresser. Having been qualified as an expert in the field of the sale of narcotics and possession of drug paraphernalia, Investigator Gereg opined that white, powdery, and odorless incense of the kind found in the northwest bedroom is frequently sold for use as a cutting agent for cocaine. That is, cocaine is an expensive substance, this type of incense is much cheaper, and the substances are mixed to allow the resulting lower-quality cocaine, of an enhanced volume, to be sold for a much greater profit. The witness opined that this kind of odorless incense, as it was specifically labeled and packaged, has no other use than as a cutting agent for cocaine. "Come back" is a term used when powdered cocaine is cooked into crack cocaine. Investigator Christopher Corbitt, of the Tallahassee Police Department, testified consistently with Investigator Gereg regarding the evidence recovered from the northwest bedroom and the kitchen.
Jeff Fennell, a former Tallahassee Police Department forensic specialist who was admitted as an expert in fingerprint analysis and comparison, testified that among the numerous small plastic baggies found in the dresser, Appellant's fingerprint was found on one of them. His fingerprints appeared also on a baggie that was found in a cooler. Neither of these two baggies contained illegal contraband.
According to Investigator Gereg, the other bedroom, the southwest one, had paperwork and items addressed only to the named lease tenant, Mr. Reddick. That second bedroom had a small dresser. The clothing found in that bedroom indicated the room was occupied by only one person, Mr. Reddick. Plastic baggies were found in the southwest bedroom too, as was a small digital scale of the type *1169 commonly used to measure out sale-size quantities of illegal drugs.
Atop some cabinets in the kitchen was a large glass measuring cup with whitish cocaine residue on the bottom, which Investigator Gereg believed was used to cook crack cocaine. Numerous small plastic baggies were found throughout the kitchen. On a shelf directly behind the stove, the investigators found a beverage can of Mountain Dew soda, the top of which screws off, disclosing a hidden container of the type frequently used to conceal illegal narcotics. A package of incense was found on the kitchen counter.
The State's evidence is sufficient for the jury to have found, beyond a reasonable doubt, that Appellant exclusively and regularly occupied the northwest bedroom within the time period shortly before the home was searched; that Appellant had dominion and control over the contraband found among his personal items in the northwest bedroom; that he knew the contraband was in his presence and was illicit; and that someone else, apparently Mr. Reddick, occupied the other bedroom. See Thames v. State, 366 So. 2d 1261 (Fla. 1st DCA 1979).
Challenging the denial of his motion for JOA on Counts Two and Four, Appellant relies on several decisions that are materially distinguishable on their facts. See, e.g., State v. Lopez, 908 So. 2d 484 (Fla. 4th DCA 2005) (affirming entry of JOA after jury verdict finding defendant guilty of trafficking in drug MDMA, because evidence that passenger, who was purported owner and supplier of MDMA, had thrown MDMA out of defendant's car was legally insufficient to establish that defendant had dominion and control and was in actual or constructive possession of the drug); State v. Snyder, 635 So. 2d 1057 (Fla. 2d DCA 1994) (affirming order dismissing information charging defendant with possession of methamphetamine, where defendant's prior knowledge of methamphetamine delivery to co-defendant and defendant's intent to try some of drug while in car with co-defendant, had police not intervened and interrupted co-defendant before he gave defendant a sample of drug, were insufficient to support charge).
A recitation of the facts in the three remaining decisions cited by Appellant demonstrates why they are materially distinguishable and do not support reversal in the instant case. In Thompson v. State, 375 So. 2d 633 (Fla. 4th DCA 1979), police officers executing a search warrant on a residence found Thompson and two other men there and detained them all in the living room while the home was searched. See id. at 634. Three kinds of controlled substances were found hidden in the southeast bedroom, and marijuana was found hidden under the kitchen sink. Thompson, the only one of the men who was prosecuted as a result of this search, was charged with possession of cocaine (found hidden in a bag in a shoe in the bedroom closet), marijuana (found in a toolbox in the bedroom), and barbiturates (found uncovered in a dresser drawer in the bedroom). The State argued that if it proved Thompson had occupied the bedroom where the drugs were found, the evidence would support his conviction for constructive possession of the drugs found in the room. To prove the southeast bedroom was Thompson's, the State relied on circumstantial evidence. After the search, but before Thompson was to be transported to the station for booking, he was given the opportunity to clothe himself and did so by walking into the bedroom in question and putting on clothing from the closet where the cocaine had been found. Electric bills and a pool receipt bearing Thompson's name and the address of the residence being searched were found in *1170 that bedroom. Thompson's car was parked in the garage at the time of the search. An officer had seen Thompson at this residence earlier on the day of the search. After a bench trial, Thompson was found guilty as charged. See id. The Fourth District Court noted that, even assuming that Thompson occupied the southeast bedroom, it found the evidence to be "equivocal" regarding whether another person also occupied that room. The officers were unsure about which articles of clothing Thompson had removed from the closet, and the best case for the prosecution was that Thompson had taken a pair of shoes and a shirt. Although the shoes and shirt apparently fit Thompson, he was small in stature and wore shoes and clothing in sizes usually worn by women. The relevance of these facts is that the testimony indicated the shoes and shirt were of a style and type commonly worn by women and men, and a lease to the residence was found in the southeast bedroom to a lessee named Barbara, which the court noted is typically a woman's name. Proffered testimony of one of the other men who were arrested with Thompson indicated that the shirt Thompson put on belonged to the witness, not to Thompson. Given the evidence that Thompson was not the exclusive occupant of the southeast bedroom, the district court concluded that the trial court had erred in denying the motion for JOA at the end of the State's case. The convictions were reversed and remanded with directions to discharge Thompson. See id. at 637. The panel reasoned that "[t]o accept occupancy, alone, as proof of possession of drugs would mean the potential to possess drugs illegally would be construed to be as much a crime as physically possessing them." Id. at 635. Unlike the equivocal evidence in Thompson, the instant evidence indicated that two different individualsAppellant and Reddickkept their personal belongings separated and exclusively occupied the northwest bedroom and the southwest bedroom, respectively.
In Lester v. State, 891 So. 2d 1219 (Fla. 2d DCA 2005), the defendant was driving a car with a woman in the front passenger seat. Lester drove to a location in St. Petersburg that is well-known for drug activity. Neither he nor his passenger knew that a police officer was there watching a man selling narcotics to people in passing cars. The officer saw Lester's car approach and observed an exchange between the passenger and the seller. The seller handed a small object to the passenger, who gave back currency. The officer observed no suspicious activity by Lester. See id. A radioed report from the officer resulted in the stopping of Lester's vehicle within three blocks of the exchange. An officer on the passenger's side of the car saw three small bulges in the seated woman's sock. He testified that his years of experience informed him that the bulges were crack cocaine. After the passenger consented to the officer's request to search her, the officer removed the cocaine. The passenger handed the officer two crack pipes she had concealed in her pants. See id. at 1219-20. With Lester's consent, an officer searched him and his automobile. No drugs or other contraband was found, but the glove compartment contained a new Brillo pad, which Lester admitted having purchased. The officer testified that such pads are often used in crack pipes as a filter and, in fact, both pipes seized from the passenger contained pieces of Brillo. After initially denying any knowledge of his passenger's intent to buy drugs or the involvement of any drugs in the transaction, Lester ultimately admitted that he had smoked crack on the previous day, that his passenger had just received a check and was going to buy crack cocaine, *1171 and that Lester intended to smoke some of it. Lester was charged with possession of cocaine. His motion for a JOA was denied. Given the lack of evidence of Lester's actual possession of the crack cocaine, the Second District Court noted the State had to prove Lester's constructive possession to sustain his conviction for possession. See id. at 1220. Although the evidence established that Lester knew of the presence of the cocaine and its illicit nature, and that he intended to partake in it, no evidence demonstrated his dominion and control over the drug. That is, no evidence showed that Lester had, or could take, actual possession of the crack or that he could compel his passenger to share the cocaine with him. Although Lester intended to use the crack, the police stopped the vehicle before Lester ever acquired possession or control over the drug. Because the State failed to demonstrate Lester's constructive possession of the crack cocaine, the district court reversed and remanded with instructions to discharge him. See id. at 1221. In contrast, the cocaine in the instant case was found in the northwest bedroom, which contained numerous personal belongings connected exclusively to Appellant, not to Mr. Reddick, whose personal belongings were found in the southwest bedroom.
Finally, in P.M.M., 884 So.2d at 418, the high-school resource officer testified that the assistant principal had searched P.M.M.'s backpack and discovered a small plastic bag of marijuana. The baggie was not fingerprinted. The resource officer did not know where the backpack had been before the search. See id. at 419. P.M.M. testified that the assistant principal told her that an anonymous source reported she had something in her backpack that she should not have. P.M.M. agreed to a search of her backpack, thinking that nothing was inside it. See id. P.M.M. denied knowing the marijuana was in her backpack, and she denied it was hers. See id. at 419-20. She testified that on the day of her arrest, and before the search, she had left the backpack unattended on the classroom floor for over an hour during her cooking class, while she worked at a stove 20 to 25 feet away; and unattended on the lunchroom table for 10-15 minutes while she waited in the lunch line. See id. at 419. The State presented no direct evidence that P.M.M. knew of the presence of the contraband. The testimony that others had access to the backpack was unrebutted and unimpeached, and no evidence demonstrated that P.M.M. knew the marijuana was in her backpack (other than the evidence that it was found in her backpack). See id. at 420. Where the circumstantial evidence failed to rebut P.M.M.'s reasonable hypothesis of innocence, the order withholding adjudication and placing her on probation for possession of marijuana was reversed. See id. at 419-20. In contrast, in the case at bar, the drugs and drug paraphernalia were found in Appellant's own bedroom in a private residence.
We AFFIRM Appellant's judgment and sentence.
WOLF and VAN NORTWICK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591590/ | 936 So. 2d 205 (2006)
Rose A. ROSE
v.
MAISON DEVILLE CARE CENTER.
No. 2006-C-1054.
Supreme Court of Louisiana.
September 1, 2006.
Denied.
TRAYLOR, J., would grant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591432/ | 14 So.3d 1004 (2009)
LOWERY
v.
STATE.
No. SC09-50.
Supreme Court of Florida.
July 15, 2009.
Decision without published opinion Mandamus denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2631387/ | 249 P.3d 1063 (2011)
Judith LEWIS-WALUNGA and William J. Soule, Petitioners,
v.
MUNICIPALITY OF ANCHORAGE, Respondent.
No. S-13825.
Supreme Court of Alaska.
April 15, 2011.
*1064 Michael W. Flanigan, Walther & Flanigan, Anchorage, for Petitioners.
Erin K. Egan, Russell, Wagg, Gabbert & Budzinski, Anchorage, for Respondent.
Before: CARPENETI, Chief Justice, FABE, WINFREE, CHRISTEN, and STOWERS, Justices.
OPINION
WINFREE, Justice.
I. INTRODUCTION
A successful workers' compensation claimant requested an attorney's fees award. The Alaska Workers' Compensation Board decided her request was "a little high" for the benefits she received and reduced the requested fee award by 30 percent. She appealed the Board's order to the Alaska Workers' Compensation Appeals Commission. The Commission reversed the Board's order and remanded the case to the Board for further consideration of a fee award. The claimant then requested an attorney's fees award from the Commission for her appeal. The Commission refused to award her attorney's fees, finding she was not the successful party on appeal. We granted the claimant's petition to review the Commission's own attorney's fees decision. We reverse the Commission's decision and remand for an attorney's fees award to the claimant for work performed in her appeal because it was error for the Commission to find the claimant was not a successful party.
*1065 II. FACTS AND PROCEEDINGS
Judith Lewis-Walunga was injured in 2004 while employed by the Municipality of Anchorage. Shortly after the Municipality controverted Lewis-Walunga's workers' compensation claim, attorney William Soule entered an appearance on her behalf before the Board. In December 2006 the Municipality agreed some of Lewis-Walunga's injuries were compensable and paid attorney's fees for work associated with that aspect of her claim. The Municipality and Lewis-Walunga disagreed about several other issues, and Soule continued to represent Lewis-Walunga.
The Board heard Lewis-Walunga's case in April 2008. The issues before the Board were additional temporary total disability (TTD), additional permanent partial impairment (PPI), additional medical benefits, penalties and interest, and attorney's fees. The Board also considered a separate claim by Dr. William Ross, Lewis-Walunga's chiropractor, who represented himself. At the hearing the Municipality agreed to pay Lewis-Walunga's outstanding medical bills except those of Dr. Ross exceeding frequency standards set by regulation.
In a June 2008 decision the Board determined most disputed issues in Lewis-Walunga's favor, including an increased PPI rating and the requested TTD. Although the Board found Lewis-Walunga was "entitled to reasonable attorney's fees" under AS 23.30.145(b), it decided more evidence was needed before it could determine the amount because the Municipality claimed the requested fees included hours for work on an abandoned issue. The Board held a second hearing solely on the attorney's fees issue, at which time the attorney's fees request totaled $38,920, including time spent preparing for and attending the attorney's fees hearing.
At the hearing the Municipality argued that the requested amount was excessive and that fees should be awarded under AS 23.30.145(a) rather than AS 23.30.145(b).[1] The Municipality also argued that AS 23.30.145 embodied a policy in favor of settlement, similar to Alaska Civil Rule 68,[2] and urged the Board to reduce Lewis-Walunga's attorney's fee award because she had rejected what the Municipality described as "a good faith, viable offer." Lewis-Walunga asserted that her requested fees included charges the Board routinely reimbursed and that the Board should reject the Municipality's Rule 68 argument.
The Board issued an order in October 2008. The Board affirmed its earlier decision that Lewis-Walunga was entitled to reasonable attorney's fees and found that the attorney's services "were complex, time[-]consuming and costly ... as supported by his affidavits." But the Board also found that the claimed attorney's fees were "a little too high for granting [the] associated [benefits] award," which the Board estimated at $20,000 in value. The Board awarded $27,244 in fees, a 30 percent reduction from the requested amount.
Lewis-Walunga appealed this order to the Commission. In her opening brief she requested that the Commission reverse the attorney's fee award and
remand the matter back to the Board with instructions to not reduce Attorney Soule's attorney[']s fees under AS 23.30.145(b) based on the size of the benefits awarded to his client, but rather to award Attorney Soule such amount of attorney[']s fees that the Board finds were reasonably incurred in the representation of the employee in this case.
Lewis-Walunga alternatively requested that the Commission remand the case to the *1066 Board "to make sufficient findings of fact and legal analysis so as to adequately explain the Board's decision." The Municipality responded that the Board correctly applied the law to the case's facts and properly exercised its discretion in awarding reduced fees. Lewis-Walunga replied that awarding reduced attorney's fees based solely on the benefits amount was bad policy and contrary to Alaska law, and restated her argument that the Board did not make adequate findings.
At oral argument before the Commission Lewis-Walunga expressed concern that the Board had implicitly adopted the Municipality's Rule 68 argument, and urged the Commission to remand the case to the Board with clear instructions not to apply a Rule 68-type analysis. She also asked the Commission to remand the case to the Board because the Board did not adequately explain its reasons for reducing her fees request. The Municipality abandoned its argument that a Rule 68-type analysis should apply to Board fees awards, but argued that the Board had correctly applied the regulatory factors in making its award.
The Commission vacated the Board's order and remanded the fee dispute to the Board for further proceedings. The Commission sua sponte questioned the applicability of AS 23.30.145(b) and decided that the Board plainly erred in failing to explain why it awarded fees under subsection .145(b) rather than subsection .145(a). Noting that AS 23.30.145(a) "establishe[d] a minimum fee, but not a maximum fee," the Commission held that "the record could support the [B]oard's decision to award a reasonable fee in excess of the statutory minimum" but determined that the Board had not made adequate findings. The Commission could not "discern what the [B]oard found to justify the conclusion that the award [was] `a little too high'" and remanded the case to the Board for further findings.
After the Commission issued its decision Lewis-Walunga moved for an attorney's fees award for the appeal. The Municipality opposed the motion, arguing that Lewis-Walunga was not the successful party because the Commission rejected her arguments and she "did not get the relief requestedan award of full attorney's fees."
The Commission declined to award fees to Lewis-Walunga, concluding she was not the successful party on appeal. It stated:
The [C]ommission remanded this matter to the [B]oard without instructions to award [Lewis-Walunga] full reasonable attorney['s] fees, as [she] requested in briefing. The [C]ommission finds that the essential element of the relief [she] requested on appeal was a remand with instructions. In the absence of such instructions, a conclusion that [Lewis-Walunga] was the successful party on appeal is unfounded. The motion for an award of attorney['s] fees and costs on appeal is DENIED, without prejudice to [Lewis-Walunga] to file a subsequent motion for an award of attorney['s] fees and costs on appeal, should this matter come before the [C]ommission again. (Emphasis in original.)
We granted Lewis-Walunga's petition to review the Commission's refusal to award attorney's fees for her appeal.
III. STANDARD OF REVIEW
In a workers' compensation appeal from the Commission we apply our independent judgment to questions of law that do not involve agency expertise.[3] When the Commission makes factual findings, its "findings of fact may be reversed on appeal if not supported by substantial evidence in light of the whole record."[4] Whether the Commission correctly applied the law in determining an award of attorney's fees is a question of law that we review de novo.[5]
*1067 IV. DISCUSSION
A. Arguments
Lewis-Walunga contends that the Commission made both factual and legal errors in denying her request for attorney's fees. She maintains she was a successful party in her appeal because she got the relief she asked for when the Commission agreed with her that the Board had not adequately explained its fee award. Lewis-Walunga interprets the Commission's statement that the denial of fees was without prejudice to mean that she "could reapply for attorney[']s fees and costs, if the matter ever came before the Commission again," and argues that the Commission made a legal error in concluding "that a remand by itself was insufficient to bestow prevailing party status." She asserts that making an employee wait for fees until a case is entirely resolved is contrary to precedent from both this court and the Commission.
The Municipality maintains Lewis-Walunga was not a successful party before the Commission because it reversed and remanded the Board's order based on an issue the Commission raised sua sponte and because it rejected Lewis-Walunga's arguments. The Municipality asserts that it was the successful party before the Commission because the Municipality "successfully defended" against Lewis-Walunga's claims. The Municipality disputes Lewis-Walunga's contention that she could reapply for attorney's fees for the work done in the present appeal even if she were successful on remand.
B. Decision
1. Statutory interpretation
Alaska Statute 23.30.008(d) governs the Commission's attorney's fees awards and provides in relevant part: "In an appeal, the [C]ommission shall award a successful party reasonable costs and, if the party is represented by an attorney, attorney['s] fees that the [C]ommission determines to be fully compensatory and reasonable."[6] The Commission did not explicitly construe "successful party" when it denied Lewis-Walunga's request for attorney's fees, but its denial was based on its determination that Lewis-Walunga did not get the "essential element" of her requested relief. And although we have interpreted AS 23.30.008(d) in another context,[7] we have not previously considered who is a "successful party" for purposes of a Commission appeal. When we interpret a statute, we consider the meaning of the statutory language, the legislative history, and the purpose of the statute, and we adopt "the rule of law that is most persuasive in light of precedent, reason, and policy."[8]
There is little legislative history about AS 23.30.008(d), but what there is suggests that the legislature intended Commission attorney's fees awards to follow the same rules as appellate attorney's fees awards in the courts. One section-by-section analysis of the legislation creating the Commission stated: "The [C]ommission shall award attorney['s] fees to successful appellants, but, as currently is the rule, attorney['s] fees may not be awarded against an employee unless the appeal was frivolous, unreasonable or taken in bad faith."[9] The Commission itself has noted that "AS 23.30.008(d) is modeled on Alaska Rule of Appellate Procedure *1068 508(g)(2)."[10]
Looking at AS 23.30.008(d), we first read the legislature's use of the phrase "[i]n an appeal" to signal that the Commission's fee award is independent of success in the underlying claim. Unlike AS 23.30.145(a) or.145(b), AS 23.30.008(d) does not tie a fee award to success on a claimit instructs the Commission to award fees in the appeal.[11] This is consistent with our application of Appellate Rule 508(g)(2).[12]
We then note that the legislature's language in AS 23.30.008(d)that fees be "fully compensatory and reasonable"is language we have used to distinguish workers' compensation attorney's fees awards from other types of attorney's fees awards.[13] We have identified the policy reason behind awards of "fully compensatory and reasonable" fees as the need for "competent counsel [to] be available to furnish legal services to injured workers."[14] Application of this policy to Commission appeals is consistent with our application of the policy to Appellate Rule 508(g)(2).[15]
Finally, as to "successful party," we note that Appellate Rule 508(g)(2), the model for AS 23.30.008(d), provides: "In an [appeal from the Commission], full reasonable attorney's fees will be awarded to a successful claimant." We have construed "successful claimant" as "a workers' compensation claimant who is the prevailing party on a significant issue on appeal."[16] We now conclude that we should interpret "successful party" in AS 23.30.008(d) the same way we interpret "successful claimant" in Appellate Rule 508(g)(2). As a policy matter, the term "successful" should have the same meaning in both AS 23.30.008(d) and Appellate Rule 508(g)both govern attorney's fees in workers' compensation appeals, and the same policy considerations apply to fee awards for appellate work in both forums. Accordingly, we hold that a claimant is a successful party in an appeal to the Commission when the claimant prevails on a significant issue in the appeal.
2. Application to this case
This case presents our first opportunity to review a factual finding by the Commission. The Commission is authorized to accept evidence on specific topics, including applications for attorney's fees and costs.[17] Alaska Statute 23.30.129(b) provides in part, "[t]he [C]ommission's findings of fact may be reversed on appeal if not supported *1069 by substantial evidence in light of the whole record." "Substantial evidence is `in light of the record as a whole, ... such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"[18]
In denying Lewis-Walunga attorney's fees, the Commission found that "the essential element of the relief [Lewis-Walunga] requested on appeal was a remand with instructions" to award full reasonable attorney's fees.[19] Lewis-Walunga contests this finding, arguing that the Commission was mistaken factually because she was not asking the Commission to award her a specific amount of fees but was asking the Commission to remand the case to the Board "for a reasoned decision." According to Lewis-Walunga, the Commission "committed `clear error' in its factual ruling that the claimant had not asked for a reversal and remand" because she "obtained the actual result she requested."
The Municipality responds that substantial evidence supports the Commission's finding because in Lewis-Walunga's opening brief, she wrote:
[I]t is respectfully requested that the Commission reverse the attorney[']s fees decision of the Board and remand the matter back to [the] Board with instructions to award "full reasonable attorney[']s fees", in accordance with AS 23.30.145(b) and 8 AAC 45.180(d)(2), without resorting to a comparison of requested fees versus benefits awarded.
According to the Municipality, the Commission "specifically rejected the arguments [Lewis-Walunga] raised in support of [her] request on appeal." In her reply Lewis-Walunga quotes a different part of her Commission brief, countering that she asked the Commission in the alternative to either remand for further findings or order the Board to award fees that had been reasonably incurred in the case.
Our review of the entire record leads us to conclude that the Commission's finding is not supported by substantial evidence. In her opening brief to the Commission Lewis-Walunga asked for the following relief: a remand to the Board "with instructions not to reduce Attorney Soule's attorney[']s fees under AS 23.30.145(b) based on the size of the benefits awarded to his client" but to award "such amount of attorney[']s fees that the Board finds were reasonably incurred in the representation of the employee in this case" or "alternatively, to make sufficient findings of fact and legal analysis so as to adequately explain the Board's decision."
In her reply brief before the Commission Lewis-Walunga claimed that the Board's "terse explanation" for its decision made it unclear whether the Board had adopted the Municipality's argument that the Board should apply "a Rule 68 analysis." She also argued that the Board had not made adequate findings and said, "[o]nly by way of reasoned findings, can the Commission expect to be able to conduct adequate reviews of [a]ttorney[']s [f]ees [a]wards by the Board in this case or any other." In the final paragraph of her reply brief Lewis-Walunga requested a remand "for the purpose of obtaining a reasoned decision that is not simply based on a comparison of the amount of the award and the amount of Appellant's attorney[']s fees."
At oral argument before the Commission Lewis-Walunga emphasized that a remedy she sought was a remand to clarify the Board's decision. She identified "the problem[s] in this case" as the Municipality's use of a Rule 68 argument and the lack of Board findings. She asked the Commission to instruct the Board not to use a Rule 68-type of analysis when awarding attorney's fees. She *1070 also challenged the findings' adequacy, saying "I defy trying to figure out how you get a 30 percent award out of this without some findings." Although the Commission's decision did not make note of it, at oral argument the Municipality abandoned its argument for applying a Rule 68 analysis when awarding fees.[20]
Because the Commission granted the very relief Lewis-Walunga requested, she prevailed on a significant issue in the Commission appeal. It was error for the Commission to find otherwise and to not award Lewis-Walunga her full reasonable attorney's fees for work done before the Commission.
V. CONCLUSION
For the foregoing reasons, we REVERSE the Commission's decision not to award Lewis-Walunga attorney's fees and REMAND to the Commission for an appropriate attorney's fees award.
NOTES
[1] AS 23.30.145 sets out two alternatives for awarding attorney's fees for work before the Board. When an employer controverts a claim, the Board can award fees under AS 23.30.145(a), which sets out a minimum fee award but permits the Board to award fees based on consideration of several factors. If the employer does not file a controversion notice but either fails to pay or "otherwise resists" payment, the Board can award reasonable attorney's fees under AS 23.30.145(b). The Board's attorney's fees regulation lists several factors the Board must consider in awarding fees under subsection .145(b). See 8 AAC 45.180(d)(2) (2004). The factors in the regulation largely mirror those set out in AS 23.30.145(a).
[2] Rule 68 provides a mechanism to modify awards of costs and attorney's fees in state court civil litigation if a party's ultimate result is not appreciably better than a settlement offer made under the Rule.
[3] Shehata v. Salvation Army, 225 P.3d 1106, 1113 (Alaska 2010) (citing Barrington v. Alaska Commc'ns Sys. Grp., Inc., 198 P.3d 1122, 1125 (Alaska 2008)).
[4] AS 23.30.129(b).
[5] See Krone v. State, Dep't of Health & Soc. Servs., 222 P.3d 250, 252 (Alaska 2009) (citing Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001)).
[6] AS 23.30.008(d) also limits the award of attorney's fees against an injured worker to cases in which the Commission finds that the worker's position on appeal was frivolous, unreasonable, or taken in bad faith.
[7] See Shehata, 225 P.3d at 1119 (discussing when appeal is frivolous).
[8] L.D.G., Inc. v. Brown, 211 P.3d 1110, 1133 (Alaska 2009) (citing Enders v. Parker, 66 P.3d 11, 13-14 (Alaska 2003)).
[9] STATE OF ALASKA, DEP'T OF LAW, SECTION BY SECTION ANALYSIS OF SB 130 at 7 (Mar. 3, 2005). This language, or very similar language, was repeated in subsequent analyses. See STATE OF ALASKA, DEP'T OF LAW, SECTION BY SECTION ANALYSIS OF CSSB 130 (FIN) am at 8 (Apr. 15, 2005); 2005 INFORMAL OP. ATT'Y GEN. 123.
At that time Appellate Rule 508(g)(2) provided for awards of "full reasonable attorney's fees ... to a successful claimant" in appeals from the Board. Appellate Rule 508(g)(1), like AS 23.30.008(d), limited the award of attorney's fees against an injured worker to cases in which the court found the worker's position on appeal was frivolous, unreasonable, or taken in bad faith. Appellate Rule 508(g)(1)-(2) (2005).
[10] Municipality of Anchorage v. Syren, AWCAC Dec. No. 015 at 2 (Aug. 3, 2007); Doyon Drilling Inc. v. Whitaker, AWCAC Dec. No. 008 at 2 n. 3 (Apr. 14, 2006). Appellate Rule 508(g) was amended in 2008 to provide for attorney's fees awards in appeals from the Commission rather than the Board. The standard for awards was not changed. Alaska Supreme Court Order No. 1671 (May 5, 2008).
[11] Compare AS 23.30.008(d) (providing attorney's fees for appellate proceedings), with AS 23.30.145(a)-(b) (providing attorney's fees for administrative proceedings).
[12] See cases cited at note 16, below (applying Appellate Rule 508(g)).
[13] Wise Mech. Contractors v. Bignell, 718 P.2d 971, 972-73 (Alaska 1986) (citing Wien Air Alaska v. Arant, 592 P.2d 352, 365-66 (Alaska 1979), overruled on other grounds by Fairbanks N. Star Borough Sch. Dist. v. Crider, 736 P.2d 770, 775 (Alaska 1987)).
[14] Id. at 973.
[15] See cases cited at note 16, below (applying Appellate Rule 508(g)).
[16] Kim v. Alyeska Seafoods, Inc., Case No. S-12754, Order dated July 1, 2009 (holding "successful claimant" is one who prevails on significant issue on appeal and appellant who was prevailing party on only issue on appeal was "entitled to full reasonable attorney's fees incurred in the appeal"). See also Shehata v. Salvation Army, Case No. S-12940, Order dated April 26, 2010 (holding appellant who "prevailed on significant issues on appeal" was "successful claimant"); Thurston v. Guys With Tools, Ltd., Case No. S-12939, Order dated Jan. 27, 2010 (holding "successful claimant" is "the prevailing party on a significant issue before the court" and petitioner was prevailing party). We used similar language in discussing whether the claimant in Municipality of Anchorage v. Anderson had been successful in his superior court appeal, noting that "it appear[ed] plausible, as both the board and the superior court found, that Anderson's counsel had prevailed on an important issue and had provided a benefit to him." 37 P.3d 420, 421 n. 7 (Alaska 2001).
[17] AS 23.30.128(c).
[18] Rockney v. Boslough Constr. Co., 115 P.3d 1240, 1242 (Alaska 2005) (quoting Cheeks v. Wismer & Becker, 742 P.2d 239, 244 n. 6 (Alaska 1987)).
[19] The Commission did not explain what it meant by an "essential element" of the requested relief. An essential element usually refers to one of the basic contentions a party must prove in order to prevail. See also Greenwood v. State, 237 P.3d 1018, 1022 (Alaska 2010) (listing "three essential elements" of a necessity defense); Lockhart v. Draper, 209 P.3d 1025, 1028 (Alaska 2009) (noting that "actual damages are not an essential element of a fraudulent conveyance action"). Cf. Diaz v. State, Dep't of Corrections, 239 P.3d 723, 727 (Alaska 2010) (setting out essential elements of claims under 42 U.S.C. § 1983).
[20] We note that neither the workers' compensation statutes nor the Board's regulations authorize the Board to consider settlement offers when awarding attorney's fees. See AS 23.30.145(a)(b); 8 AAC 45.180 (2004). | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591619/ | 389 F.Supp. 323 (1975)
James MARTIN et al., Plaintiffs,
v.
Mario MEROLA, District Attorney, Bronx County, et al., Defendants.
No. 74 Civ. 4453-CLB.
United States District Court, S. D. New York.
January 23, 1975.
*324 Rothblatt, Rothblatt, Seijas & Peskin by Andrew P. Zweben, New York City, for plaintiffs.
Mario Merola, Dist. Atty., Bronx County, N.Y., by Robert M. Cohen, Asst. Dist. Atty., for defendants Merola, Darcy and Chesler.
MEMORANDUM AND ORDER
BRIEANT, District Judge.
Defendants Merola, Darcy and Chesler have moved to dismiss the complaint herein pursuant to Rule 12(b) (6), F.R. Civ.P. for failure to state a claim. The Court has read affidavits and exhibits submitted by both sides of the litigation, and treats the motion as having been made under Rule 56.
Movants were at all relevant times, respectively, the District Attorney of Bronx County, New York, and Assistant District Attorney in his office, and an "as yet unadmitted law school graduate" employed in his office under the job title of "Criminal Law Investigator", who will become an Assistant District Attorney automatically when admitted to the bar, performing the same duties as an Assistant until such date. Other named defendants, not joining in this motion, are detectives or police officers of the City of New York.
Plaintiffs seek damages of Thirteen Million ($13,000,000.00) Dollars from defendants for "flagrant, wanton and malicious disregard" of plaintiffs' constitutional rights, and found jurisdiction on 42 U.S.C. § 1983.
Plaintiffs are six persons charged in various indictments presently pending in the courts of New York State, Bronx County, with serious crimes of the sort ordinarily associated with what is called, euphemistically, "Organized Crime". *325 Included in the indictments are counts of criminal usury, conspiracy, tampering with a witness, and felony possession of a weapon.
While an attorney's affidavit carries very little weight on a motion of this kind, we take as true for purposes of this motion, the "affirmation" of Andrew P. Zweben, dated November 29, 1974, read in opposition to the motion.
Plaintiffs allege that they were indicted, that the indictments were sealed and warrants issued, that they were not given an opportunity to surrender, although they had asked for an "opportunity to do so" through their attorneys (Complaint, ¶ 3). This is a frivolous allegation, because surrender pursuant to a warrant is a unilateral act, which can be accomplished merely by turning up at any precinct and asking to be arrested and brought before a magistrate pursuant to the outstanding warrant. We know of no rule of law which requires that a defendant in a sealed indictment be given any "opportunity" of the sort described; indeed such dealings between law enforcement officers and those charged with serious crime tend to injure public confidence in law enforcement, suggesting as they do, a double standard, or special treatment of "organized crime" as contrasted with "street crime" where arrests are sudden and free from ceremony or treaty.
Plaintiffs Carmine Apuzzo and Angelo Leonardi plead the existence of medical conditions so grievous that it would seem impossible for either of them to have engaged in the sort of criminal activity with which they are charged. Apuzzo, we are told, was arrested while en route to his doctor, held for three hours processing, refused medical attention, and "detained in the bull pen" without food, drink or medical assistance until his arraignment the following morning. Because of state court calendar congestion he waited in court for five hours, and was not bailed until the following morning. Apparently (¶ 7) the arraignment judge was somewhat skeptical about his claimed need for medical care. No facts are set forth from which we may impute liability for any of these conditions or circumstances upon the District Attorney or his staff. However, manifold may be their duties, they do not preside over arraignment part or the detention facilities. If plaintiff was abused or neglected by any policeman or guard, he may have an action, but liability under respondeat superior does not exist as to these movants in this case.
Leonardi's health complaints did receive attention immediately upon his arrest, but at Jacobi Hospital, rather than at "his own hospital" (Complaint, ¶ 9). This aspect of the complaint is also frivolous.
On the motion, plaintiffs showed that on August 2, 8 and 9, 1974 defendant Merola advised the press of the status of proceedings affecting them. As a result of the information furnished by prosecutor Merola, stories of a somewhat lurid and sensational nature appeared in the press. Briefly summarized, these articles indicated [New York Times, August 9, 1974] that with the aid of "an electronic bugging device," a "usury ring focusing on small-business men in the Bronx has . . . been broken." Plaintiff Darienzo was described as the "ringleader," and said to be "strongly connected with the Tramunti crime family." Names and addresses of those indicted were listed. A New York Post article on August 8, 1974 quotes defendant Merola as announcing the arrests, and describes the nature of the criminal activities involved. It is clear that the statement describes charges only, rather than proven conduct. In the Post, unspecified members of the loansharking ring are also described as "linked directly to the Tramunti and Columbo crime families." The Times Herald Record of August 9, 1974 describes the arrests of 17 persons, including plaintiffs here, and notes that two of the 17 are "members *326 of the organized crime families of Carmine Tramunti and Joseph Columbo."
It is clear that Merola and his two assistants, movants here, were acting in their official capacity as prosecutors and clothed with judicial immunity from actions for money damages "based on non-malicious conduct in their official capacity" within their jurisdiction. Palermo v. Rockefeller, 323 F.Supp. 478, 485 (S.D.N.Y.1971); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). No evidence of bad faith or actual malice on the part of movants was shown, and the bare allegations of misconduct by "defendants" lumped together, are insufficient.
Assuming, as we must for purposes of this motion, that the somewhat conflicting press accounts quote Merola correctly, no malice may be inferred therefrom. The District Attorney has wide discretion in the conduct of criminal prosecution, and in deciding what matters to present to the grand jury. He is an important elected official of the County. His work is intimately connected with public good; diligent performance of his duties are matters of vital public interest concerning which the public has a "right to know", and the media a legitimate interest in reporting, not only indictments and arrests, but their significance. Scope of the latter includes information about the extent and nature of the alleged loansharking racket, its methods of operation, the electronic means employed to detect it. Disclosure of the criminal affiliations of the defendants with the various well known local "families" was, arguably, a failure to comply with the ABA Standards Relating to the Administration of Criminal Justice, Fair Trial and Free Press, Part II, § 2.1(c)(1), which do not appear to have the force of law in New York. Also, there may have been a breach of DR 7-107(B)(1) of the Code of Professional Responsibility adopted by the New York State Bar Association (Judiciary Law Appendix, McKinney's Supp.1974). If so, this breach of prosecutorial responsibility does not amount to a "deprivation of . . . rights, privileges, or immunities secured by the Constitution and laws". 42 U.S.C. § 1983.
While the last chapter in the "fair trial-free press" controversy remains to be written, and while prejudicial pretrial utterances may justify trial delay or change of venue in a proper case, we are not prepared to say that a state district attorney will subject himself to civil liability in this Court for statements such as those attributed to him here. Apart from the right of the public to know, it would seem that the prosecutor should enjoy some right of free speech so as to permit him to account through the media to the voting public for his stewardship of his important public trust. Regrettably, when, as here, a prosecutor announces some action against organized crime operations, it is regarded as newsworthy, and somehow contrasting with the daily seining for small fish which seems to be the rule in many such offices.
Summary Judgment is granted and the Complaint is dismissed as to movants Merola, Darcy and Chesler. There is no just reason for delay. Rule 54(b), F.R.Civ.P. Our Clerk shall enter final judgment in favor of all three movants dismissing the Complaint and denying all relief as to them.
So Ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591628/ | State of Wisconsin, Plaintiff-Respondent,
v.
Frank L. Little, Defendant-Appellant.
No. 04-0269-CR.
Court of Appeals of Wisconsin.
Opinion Filed: July 29, 2004.
¶1 HIGGINBOTHAM, J.[1]
Frank L. Little appeals a judgment of conviction for criminal damage to property pursuant to WIS. STAT. § 943.01. Little argues that the evidence produced at trial was insufficient to support a conviction and violated his due process rights.[2] We conclude that the recanted statement of the victim, along with other corroborating evidence, was sufficient for a reasonable jury to find Frank Little guilty beyond a reasonable doubt. We therefore affirm the judgment of conviction.
FACTS
¶2 Little and Angela Wing have been romantically involved for approximately ten years. The charges against Little stem from an incident between him and Wing that occurred on the evening of October 18, 2002, resulting in charges of battery, criminal damage to property and disorderly conduct against Little.
¶3 At a jury trial on July 16, 2003, four witnesses testified: Little, Wing, City of Holmen Police Officer Shane Collins and Rae Ann Hansen, Wing's friend. Collins testified that at approximately 11 p.m. on the night of October 18, 2002, he was dispatched to Wing's home where he made contact with Little. Collins testified that Little showed him receipts for certain property and stated he was moving out. Little also told Collins that "all this stuff was his." Collins asked Little whether there was a problem that night and Little said, "no." Little later stated no argument occurred that night. Collins told Little that since there was no victim, his presence was no longer necessary and left the trailer home.
¶4 Collins then testified that Little contacted him later that evening. Little told Collins that Wing's son had come home and was causing trouble. Collins went back to Wing's trailer where he contacted Wing's son. Shortly thereafter, Wing and Hansen arrived at the trailer. Collins testified that Wing appeared visibly upset and was rather quiet spoken. Collins interviewed Wing who told him that she and Hansen were at a tavern and went to the trailer to retrieve some money. Wing said that some money was missing, she blamed Little for the missing money and an argument ensued. Wing told Collins that Little essentially battered her and then demolished their bedroom. Collins testified that Wing informed him that Little had picked up a twenty-seven inch television and had thrown it to the floor; he also picked up a floor console television and rolled it across the bedroom, threw the computer and kicked the television and damaged a lamp and a table. Collins testified that when he asked Wing to whom the property belonged, Wing said the property belonged to her. Wing prepared a written statement that night and gave it to Collins the next day.
¶5 Collins testified that when he stopped by to see how Wing was doing the evening following the incident, Wing was concerned about the property damage and indicated she would provide an estimate of the damage. Collins further testified that Wing appeared concerned that Little "threw everything down and broke it and tossed it around and flipped the TV and the microwave." Collins testified that these items were still in the trailer after Little had removed all the items he had stated belonged to him. Collins did not document either of these statements in his police report nor was there any indication of property ownership in Wing's written statement.
¶6 Little testified at trial that the items he damaged the evening of October 18, 2002, belonged to him as he had acquired them from his workplace and brought them into Wing's trailer. Little also testified he had called the police to the trailer "because I figured if I had somebody there with me that I couldn't be accused of taking anything of nobody else's, because I had my receipts for everything that I was taking."
¶7 Wing's trial testimony, in large part, contradicted her statements to Collins as well as the testimony of other witnesses. Wing testified that another man was at the trailer during the argument but Hansen and Little both testified that only they and Wing were present. Wing had never reported the presence of another man to Collins. Wing also testified that Little had called the police before the argument but both Little and Hansen testified that Little had phoned the police post-argument. Further, Wing's written statement indicated the microwave oven was thrown to the floor but, at trial, Wing claimed to not remember this statement.
¶8 Also contrary to Collins' testimony, Wing testified she did not tell Collins that she owned the damaged property. Wing did not directly reject ownership rights but stated
And I mean as far as the stuff that was broken, Frank brought that stuff into the house, so I mean in all actuality that is his stuff. It was brought from our job, which that's the type of work that we were doing. I guess I staked ownership because it was in my house.
When Wing was asked if she would view the property as shared, she stated
I mean the computer, I mean I had that I had asked [Little] to see what he could do about getting one so the kids had a computer. The TV was his. I mean I had a TV. That was a bedroom TV he had brought home. I guess the only ownership I felt was mine is because it was placed in the house that I owned.
Wing read the statement she gave to Collins the day after the incident to the jury, which states:
I, Angie Wing, came over to the house to get my money in the amount of $70 and it was not there. I then wenttold Frank to give me my money and all hell broke loose. He then started to push and shove me in the bedroom. Then the TV was tossed to the floor, the microwave to the floor, and the TV cart was picked up to smash the rest of what was left.
¶9 However, consistent with Collins' testimony, Wing admitted to telling Collins that Little "had broke some stuff" and that she would provide an estimate for the property that Little had damaged. Wing admitted she never provided the estimate because she felt she was just as much to blame as Little for the resulting damage. However, Wing also testified on cross-examination that Little brought the items he knocked over into the house, implicitly acknowledging the items belonged to Little. Wing claimed responsibility for the argument by stating she was the initiator.
¶10 Hansen testified at trial that she observed Little and Wing yelling at each other and that she observed Little pick up and throw a computer, the microwave and both televisions located in the bedroom. Little's trial counsel did not cross-examine Hansen on these points.
¶11 At the close of trial, the jury found Little not guilty of the battery charge but guilty of criminal damage to property and disorderly conduct. Little filed a post-trial motion to dismiss the criminal damage property count claiming there was insufficient evidence to prove beyond a reasonable doubt that the two televisions, the computer and the microwave oven belonged to another person and that Little had knowledge that these items belonged to another person. The trial court denied the motion, acknowledging that the evidence was "slim" but concluded the jury was entitled to rely on Collins' testimony as evidence. The trial court withheld sentence for both convictions and placed Little on probation for one year. Little appeals only the criminal damage to property judgment of conviction.
DISCUSSION
¶12 The standard of review in determining the sufficiency of the evidence to sustain a criminal conviction is well established:
The burden of proof is upon the state to prove every essential element of the crime charged beyond reasonable doubt. The test is not whether this court or any of the members thereof are convinced [of the defendant's guilt] beyond reasonable doubt, but whether this court can conclude the trier of facts could, acting reasonably, be so convinced by evidence it had a right to believe and accept as true . . .. The credibility of the witnesses and the weight of the evidence is for the trier of fact. In reviewing the evidence to challenge a finding of fact, we view the evidence in the light most favorable to the finding. Reasonable inferences drawn from the evidence can support a finding of fact and, if more than one reasonable inference can be drawn from the evidence, the inference which supports the finding is the one that must be adopted. . ..
State v. Poellinger, 153 Wis. 2d 493, 503-04, 451 N.W.2d 752 (1990) (citations omitted). The parties agree that Wisconsin allows the use of prior inconsistent statements as substantive evidence. Vogel v. State, 96 Wis. 2d 372, 386, 291 N.W.2d 838 (1980).
Sufficiency of Evidence Regarding Damage to Property
¶13 Little first argues that the State did not produce sufficient evidence to prove beyond a reasonable doubt that damage was, in fact, caused to the televisions, computer and microwave oven. Little contends there was no specific evidence of damage, just testimony that "stuff" was broken which, in his view, is insufficient to sustain a conviction.
¶14 In response, the State argues we should not consider this issue because it was raised for the first time on appeal. Further, the State claims even if we were to consider the issue on appeal, Little could not prevail because defense counsel conceded the damage to property in his closing statement at trial. We agree.
¶15 Little conceded this issue at trial when he stated, "there's no dispute that there was some property damaged" during his closing argument. Little may not now challenge proof of damage to the property.
Sufficiency of Evidence Regarding Property Ownership
¶16 Little further argues there was insufficient evidence to prove that the damaged property was property belonging to another and that he was aware that the property did not belong to him. According to Little, the only evidence of Wing's ownership of property was a prior inconsistent statement made by Wing. Little alleges a reasonable jury could not find him guilty beyond a reasonable doubt "based solely upon an alleged, uncorroborated, non-transcribed, inconsistent prior statement of a witness, when that witness denies making the statement." While Little does not challenge the admission of the prior inconsistent statement into evidence, he claims his constitutional right to due process was violated because the prior inconsistent statement was unreliable and was the only evidence supporting his conviction.
¶17 Little concedes it is the function of the trier of fact to fairly resolve conflicts in the testimony, to weigh evidence and to draw reasonable inferences from the facts. However, Little contends the problem in this case is the lack of evidence to weigh. Little claims the evidence offered at trial is not qualitatively or quantitatively sufficient to support a conviction. Therefore, according to Little, the question is whether a conviction may stand when based solely upon a prior inconsistent statement.[3] Because we conclude the testimony by Collins, Hansen, Little and Wing corroborates the prior inconsistent statement, we need not address this argument. We further conclude there is more than sufficient evidence in the record to corroborate Wing's prior inconsistent statement.
¶18 Wing agreed at trial that she promised to provide an estimate of the damage to Collins, which is consistent with the behavior of an owner. Wing testified that Little brought home the computer for the kids to use, implying at least joint ownership of the property. Collins testified that Little told him he had removed all his belongings from the trailer and Collins observed the computer, the microwave and the two televisions remaining in the trailer after Little provided this statement. Wing testified she told Collins that Little had damaged some items and that one of the televisions belonged to her. Hansen testified she observed Little pick up and throw the televisions, the computer and the microwave.
¶19 When there is conflicting testimony, the jury is charged with making credibility determinations. Poellinger, 153 Wis. 2d at 506. Given the inconsistencies in Wing's testimony, we conclude that the jury would not have acted unreasonably in dismissing all or any part of it. Implicit in the jury's finding is that Collins was a more credible witness than Wing.
¶20 Further, the jury is allowed to draw reasonable inferences from the evidence. Id. at 506. The jury had the opportunity to take note of the motives of both Wing and Little to testify falsely and the absence of similar motives of Collins. Under Poellinger, we must adopt the reasonable inference that supports the finding of the jury. Id. at 504-05. It is a reasonable inference that Wing falsified her testimony to protect her long-term boyfriend.
¶21 In sum, we conclude that there was sufficient evidence to corroborate Wing's prior inconsistent statement and support Little's conviction. We therefore affirm the judgment of the circuit court.
By the Court. Judgment affirmed.
NOTES
[1] This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2001-02). All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
[2] While Little appeals the judgment of conviction, he does not appeal the trial court's order denying dismissal of the criminal damage to property charge. Therefore, we do not review the order here.
[3] Little argues the guidelines established by the Seventh Circuit in Vogel v. Percy, 691 F.2d 843 (7th Cir. 1982), for admitting a prior inconsistent statement should apply here in determining the sufficiency of the evidence to convict Little for criminal damage to property. The State claims we should apply the reasoning of Ticey v. Peters, 8 F.3d 498 (7th cir. 1993), where the court determined that the Vogel guidelines merely provide a "framework" in determining the admissibility of a prior inconsistent statement under circumstances where it is argued that the statement was insufficient to support the defendant's conviction. The simple question presented in this appeal is whether there was sufficient corroborating evidence to Wing's prior inconsistent statement to support Little's conviction. Because we conclude that the record does provide for sufficient corroborating evidence, we do not address these arguments. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591641/ | 686 N.W.2d 27 (2004)
Torrey WESTROM, Respondent (C9-03-128),
Dennis Westrom, et al., Respondents (C0-03-129),
v.
MINNESOTA DEPARTMENT OF LABOR AND INDUSTRY, Appellant (C9-03-128).
Nos. C9-03-128, C0-03-129.
Supreme Court of Minnesota.
September 2, 2004.
*29 Erica K.G. Jacobson, Assistant Attorney General, Richard L. Varco, Jr., Assistant Attorney General, St. Paul, MN, for Relator/Appellant.
Edward F. Klinger, Moorhead, MN, Robert A. Awsumb, St. Paul, MN, for Respondents.
Mark R. Anfinson, Minneapolis, MN, for Amicus Curiae.
Heard, considered, and decided by the court en banc.
OPINION
HANSON, Justice.
These consolidated appeals arise out of two separate actions that seek damages pursuant to the Minnesota Government Data Practices Act (MGDPA), Minn.Stat. §§ 13.01-.99 (2002). They are based on the release to the news media by appellant, the Department of Labor and Industry (DOLI), of orders and objections that are alleged to be confidential or protected nonpublic civil investigative data. The district court granted DOLI's motions for summary judgment, concluding that the released documents were "public" documents under the MGDPA and that the claims against DOLI should be dismissed with prejudice. The court of appeals reversed, holding that data reflected in the orders and objections were confidential or protected nonpublic data that should not have been released. Westrom v. Minn. Dept. of Labor & Indus., 667 N.W.2d 148, 153 (Minn.App.2003). We affirm.
In July 1997, DOLI's Investigative Services Unit (ISU) began an internal investigation of Trendsetters Construction Company (Trendsetters) and WBC Construction (WBC), two companies that were owned by the individual respondents, who are members of the Westrom family (respondents will be referred to collectively as "the Westroms"). The investigation was made under Minn.Stat. § 176.181, subd. 3 (2002), to determine whether the two companies had obtained all compulsory workers' compensation insurance coverage. The ISU completed its internal investigation on March 6, 1998, and forwarded the investigation file to DOLI's Penalty Administrator. The Penalty Administrator calculated a monetary penalty and forwarded his recommendation to the Director of the Special Compensation Fund (Director).[1]
To this point in the investigation, no contact had been made with the Westroms and there is no indication in the record that they were aware of the investigation. On March 25, 1998, by way of an Order to *30 Comply and Penalty Assessment, the Director notified respondents Dennis, Torrey, and Trevor Westrom,[2] and Trendsetters and WBC, that the ISU of DOLI had determined that the Westroms had violated Minn.Stat. § 176.181, subd. 2 (2002), because they "did not have workers' compensation insurance for the period 05/01/96 to 06/30/97." The order directed the Westroms to obtain insurance and assessed a monetary penalty.
The Westroms submitted written objections to the order, alleging that Trendsetters had inadvertently allowed its insurance to lapse but had obtained new insurance; that Torrey Westrom did not direct or control the activities of any employees of Trendsetters during the alleged violation period; that WBC is a partnership and the only respondent who had a partnership interest in it was Trevor Westrom; and that WBC "had no employees during the times at issue" and was exempt from any compulsory workers' compensation insurance requirements.[3]
After the objections were submitted, the Attorney General's office submitted discovery requests to the Westroms in July 1998. On September 24 and 25, 1998, DOLI issued two Amended Orders to Comply and Penalty Assessments, one applicable to Trendsetters and the other to WBC. The Westroms submitted written objections to the amended orders. With respect to Trendsetters, the Westroms alleged that Torrey Westrom did not direct or control the activities of any employee and was thus entitled to dismissal as an individual; that Trendsetters maintained workers' compensation coverage in November 1995; and that any lapse in coverage was inadvertent and was remedied as soon as the error was discovered. With respect to WBC, the Westroms alleged that Dennis Westrom and Torrey Westrom were not affiliated with WBC and should be dismissed from the action as individuals and that WBC was not required to carry workers' compensation insurance because it had no employees during the penalty period.
As early as October 19, 1998, DOLI released copies of the amended orders of *31 September 24 and 25, 1998, and the objections to those orders, to various news organizations. DOLI has not shown in the record that on the date of that release the orders and objections had already been filed as part of a Petition for Expedited Hearing with the Office of Administrative Hearings, which would have commenced an administrative proceeding. Minn.Stat. § 176.181, subd. 3(b) (2002). In fact on October 19, 1998, an Assistant Attorney General sent the Westroms a letter informing them that DOLI had not filed a Petition for an Expedited Hearing as of that date and reiterating DOLI's willingness to "resolve these matters in an informal settlement conference." On October 26 and 27, 1998, DOLI released additional copies of the orders and objections to other news organizations. Again, the record does not disclose whether a Petition for an Expedited Hearing had been filed by those dates.
On December 28, 1998, the Westroms wrote to the Assistant Attorney General, requesting "a copy of any and all materials in your file, other than, of course, your personal notes and your correspondence with your client" in connection with "this investigation[.]" The Westroms also asked for clarification on "the status of this file under the Data Privacy Act" and inquired whether "that status [would] change now that the matter [was] filed for hearing[.]"[4] The record does not contain any other information regarding the filing of a Petition for Expedited Hearing on these matters.[5]
On April 28, 1999, the Assistant Attorney General wrote the Westroms a second letter responding to their December 1998 request for clarification. The Westroms interpret the Assistant Attorney General's response of that date to state that "the matter was still `pending' and was an `active investigation.'" This may be a fair inference, but the letter was more general, stating:
As I mentioned in [my February 22, 1999,] letter, all documentation retained by a state agency is presumed "public" unless classified to the contrary by Minnesota Statutes Chapter 13. As I understand the Data Practices Act, all documents maintained by a state agency during an active investigation or while a matter is "pending," is "protected nonpublic data" in the case of data not on individuals or "confidential" in the case of data on individuals.
The statute allows an agency discretion, however, to make any data classified as "confidential" or "protected nonpublic" available to the public if "access will aid the law enforcement process, promote public health or safety or dispel widespread rumor or unrest." Minn. Stat. § 13.39, subd. 2.[sic] (1998). At this time, I do not foresee invoking that discretion. If you [sic] client's confidentiality is of great concern, you may want to seek a protective order barring the agency from responding to a data practice request.
On February 20, 2000, pursuant to a request by the Westroms, the Commissioner of the Department of Administration, *32 the state agency charged with the primary responsibility for enforcing and administering the MGDPA, issued an advisory opinion concluding that the documents released by DOLI were active investigative data under Minn.Stat. § 13.39 (2002), and that DOLI's release of these documents violated the protections of the MGDPA. According to the Commissioner, "[t]he process had not yet reached a conclusion but DOLI still released data about X while his/her appeal was pending." On August 4, 2000, pursuant to a request by DOLI, the Attorney General contradicted that conclusion in an advisory opinion that the orders and objections were public data within the meaning of Minn.Stat. § 13.39.
In January 2002, the Westroms commenced this action against DOLI for damages under the MGDPA. The district court granted DOLI's motion for summary judgment, concluding that the orders and objections were public documents, the release of which was permitted by the MGDPA. The court of appeals reversed, holding that data reflected in the orders and objections was confidential or protected nonpublic data. We granted DOLI's petition for further review.
We review a grant of summary judgment to determine whether there are any genuine issues of material fact and whether the district court erred in applying the law to the facts. Jorgensen v. Knutson, 662 N.W.2d 893, 897 (Minn.2003). When a district court grants summary judgment after applying the law to undisputed facts, we review the legal conclusion de novo. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998). Statutory construction is also reviewed de novo. State v. Colosimo, 669 N.W.2d 1, 8 (Minn.2003). We must, however, view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).
I.
The Westroms argue that the orders and objections released by DOLI reflect civil investigative data that are confidential or protected nonpublic data under Minn.Stat. § 13.39, subd. 2(a) (2002). DOLI argues that the data in the orders and objections are not civil investigative data because (1) DOLI did not "collect" these orders and objections; (2) the orders and objections were created after the investigation was complete, and, therefore, were not a part of the fact-finding or investigative process; and (3) the orders and objections do not fit within the statutory definition of either "confidential data" or "protected nonpublic data." DOLI also claims that the orders and objections constitute public documents under sections of the Workers' Compensation Act. Minn. Stat. §§ 175.10, 175.24 (2002). Review of these claims requires us to analyze and compare several provisions of the MGDPA.
Overview of the MGDPA
All state agencies are required to "make and preserve all records necessary to a full and accurate knowledge of their official activities." Minn.Stat. § 15.17, subd. 1 (2002). Under subdivision 4 of section 15.17, access to these records is governed in relevant part by section 13.03 of the MGDPA. Section 13.03 provides in part:
Upon request to a responsible authority or designee, a person shall be permitted to inspect and copy public government data at reasonable times and places * * *.
* * * *
If the responsible authority or designee determines that the requested data is classified so as to deny the requesting *33 person access, the responsible authority or designee shall inform the requesting person of the determination * * * and shall cite the specific statutory section, temporary classification, or specific provision of federal law on which the determination is based.
Minn.Stat. § 13.03, subd. 3 (2002).
The MGDPA "establishes a presumption that government data are public and are accessible by the public for both inspection and copying unless there is federal law, a state statute, or a temporary classification of data that provides that certain data are not public." Minn.Stat. § 13.01, subd. 3 (2002). But section 13.02 then defines two categories of nonpublic data that are relevant here:
Subd. 3. "Confidential data on individuals" means data which is made not public by statute or federal law applicable to the data and is inaccessible to the individual subject of that data.
* * * *
Subd. 13. "Protected nonpublic data" means data not on individuals which is made by statute or federal law applicable to the data (a) not public and (b) not accessible to the subject of the data.
Minn.Stat. § 13.02, subds. 3, 13 (2002).
The Westroms do not base their claims on these definitions directly because each definition would appear to not apply to orders and objections that are, by necessity, accessible to the subjects of an investigation. But the Westroms argue that these definitions are supplemented and, in a sense, overridden by Minn.Stat. § 13.39 (2002), which specifically addresses the topic of civil investigative data. That section provides:
Subdivision 1. A "pending civil legal action" includes but is not limited to judicial, administrative or arbitration proceedings. Whether a civil legal action is pending shall be determined by the chief attorney acting for the state agency, political subdivision or statewide system.
Subd. 2. (a) Except as provided in paragraph (b), [1] data collected by state agencies, political subdivisions, or statewide systems [2] as part of an active investigation [3] undertaken for the purpose of the commencement or defense of a pending civil legal action, or which are retained in anticipation of a pending civil legal action, are classified as protected nonpublic data pursuant to section 13.02, subdivision 13, in the case of data not on individuals and confidential pursuant to section 13.02, subdivision 3, in the case of data on individuals. Any agency, political subdivision, or statewide system may make data classified as confidential or protected nonpublic pursuant to this subdivision accessible to any person, agency or the public if the agency, political subdivision, or statewide system determines that the access will aid the law enforcement process, promote public health or safety or dispel widespread rumor or unrest.
(Emphasis added.) Thus, the Westroms argue that section 13.39 prohibits the release of civil investigative data by deeming it to be protected nonpublic data or confidential data, unless such release is expressly determined to be appropriate to aid law enforcement, promote public health or safety, or dispel widespread rumor or unrest. DOLI made no express determination of a need to release the data under section 13.39 and does not attempt to justify the release of the orders and objections on that basis. The question then is whether the orders and objections were civil investigative data, which requires review of the three highlighted elements of such data: (1) data collected by a state agency, (2) as part of an active investigation, (3) *34 undertaken for or in anticipation of a pending civil action.
Data Collected
We first consider whether the orders and objections constitute "data collected." Although the term "data" is not defined in the MGDPA, "data" usually is said to mean "individual facts, statistics, or items of information[.]" The Random House Dictionary of the English Language 508 (2d ed.1987). To "collect" means "to gather together; assemble[.]" Id. at 403. Thus, section 13.39, subdivision 2, requires some affirmative action by the state agency to gather or assemble data. See St. Peter Herald v. City of St. Peter, 496 N.W.2d 812, 814 (Minn.1993). When an agency gets information as a "passive recipient," that information is not "data collected." Id.
DOLI argues that the orders do not constitute "data collected" because the orders were not collected by the agency but instead were created by the agency itself. St. Peter Herald is the only case involving the MGDPA where this court has addressed whether the data in question constitute "data collected." 496 N.W.2d at 814. In St. Peter Herald, the city of St. Peter received a notice of claim in the form of a letter from a private attorney. Id. at 813. When reporters requested copies of the letter, the city attorney refused to provide copies on the ground that the letter was private data. Id. Two newspapers then brought an action to compel disclosure of the notice of claim. Id. This court concluded that the information contained in a notice of claim sent to the city by a private attorney was not "data collected" because the city did not take any affirmative action to gather the information contained in the notice of claim. Id. at 814.
The facts here are quite different from St. Peter Herald. DOLI did undertake an internal investigation that involved the collection of data concerning Trendsetters, WBC, and the Westroms. DOLI acknowledges that the "issuance of the Orders was undoubtedly based upon information obtained by [DOLI's] ISU investigation[.]" Therefore, although DOLI created the orders, these orders are inextricably linked to and are the product of the data collected by DOLI during its investigation. To the extent that the orders reflect DOLI's conclusions, drawn from examining data gathered in the course of its investigation, we conclude that the orders constitute "data collected" under Minn.Stat. § 13.39, subd. 2(a) (2002).[6]
*35 With respect to the objections, DOLI contends that they do not constitute "data collected" because DOLI was merely a "passive recipient" of these objections. But DOLI issued the orders and the Westroms were required to submit written objections within ten days in order to preserve their right to challenge the order. Minn.Stat. § 176.181, subd. 3(b) (2002). By requiring that an employer file timely objections to its orders in order to maintain a vital right, DOLI becomes more than a "passive recipient" of the objections. The objections are not in any sense voluntary, but are a continuation of DOLI's data collection process. We conclude that the objections also constitute "data collected" under Minn.Stat. § 13.39, subd. 2(a) (2002).
Active Investigation
We next consider whether the investigation was active when the orders and objections were released to the media. This inquiry requires us to determine whether DOLI's fact-finding process had been completed or was ongoing at that time.
Although DOLI argues that the formal investigation ended on March 6, 1998, there is evidence that the fact-finding process did not end at that time. The orders and objections were created in September and October 1998 and released to the media in October 1998. On March 9, 1999, DOLI issued a second amended order aimed at Dennis and Trevor Westrom, individually, and WBC an order that did not list Torrey Westrom as an individual respondent. The record does not indicate what led to the decision to issue this second amended order and to effectively drop the charges against Torrey Westrom in the WBC matter. Yet, viewing the evidence in the light most favorable to the Westroms, the party against whom summary judgment was granted, this decision may have been the result of fact-finding conducted subsequent to the issuance of the September 25, 1998, order identifying Torrey Westrom as an individual respondent in the WBC matter. This evidence suggests that the investigation was still active when the orders and objections were created and released.
Further, DOLI's argument would presume that the investigation ended before the first orders were issued. But, the record does not indicate that the Westroms were even aware that an investigation was under way until the orders were issued. We are reluctant to conclude that a civil investigation could begin and end before the subject of the investigation is provided notice, much less given the opportunity to respond.
Finally, for summary judgment purposes, the Westroms are entitled to rely on the admissions made in the letter of the Assistant Attorney General, on behalf of DOLI, that the matter was still "pending" and was an "active investigation" as late as April 28, 1999, long after the orders and objections had been released to the media.
For or in Anticipation of a Pending Civil Action
We next consider whether the investigation was "undertaken either for the purpose of commencing or defending a [pending] civil legal action or of [retaining] the data in anticipation of [a pending civil] legal action." St. Peter Herald, 496 N.W.2d at 814. "A `pending civil legal action' includes but is not limited to judicial, administrative or arbitration proceedings." Minn.Stat. § 13.39, subd. 1 (2002).
*36 Under Minn.Stat. § 176.181, subd. 3(a) and (b), the commissioner of DOLI must give an employer ten working days to file an objection once an order is issued. If the employer does not file an objection within ten working days, the order becomes final, and "violation of that order shall be enforceable by way of civil contempt proceedings in district court." Minn.Stat. § 176.181, subd. 3(b) (2002). If the employer files a timely objection, the commissioner has to "refer the matter to the office of administrative hearings for an expedited hearing before a compensation judge." Id. Thus, the statute requires the commissioner to retain the orders in anticipation of a judicial proceeding and/or to retain the orders and objections in anticipation of an administrative proceeding, each of which fits within the definition of a "pending civil legal action."
II.
DOLI argues that even if the orders and objections could properly be classified as civil investigative data pursuant to section 13.39, subdivision 2(a), they do not fit within the definition of either "confidential data on individuals" or "protected nonpublic data" provided by Minn.Stat. § 13.02, subds. 3 and 13. DOLI points out that to be "protected nonpublic data" under subdivision 13, the data must be "not accessible to the subject of the data," and to be "confidential data on individuals" under subdivision 3, the data must also be "inaccessible to the individual subject of the data." Obviously, the orders and objections were accessible to the Westroms.
But section 13.39, subdivision 2, appears to override these definitions when it states that data that qualifies as civil investigative data "are classified as protected nonpublic data pursuant to section 13.02, subdivision 13, in the case of data not on individuals and confidential pursuant to section 13.02, subdivision 3, in the case of data on individuals."
We view any conflict between section 13.39 and section 13.02 as being subject to the rule of statutory construction that:
When a general provision in a law is in conflict with a special provision in the same or another law, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions be irreconcilable, the special provision shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted at a later session and it shall be the manifest intention of the legislature that such general provision shall prevail.
Minn.Stat. § 645.26, subd. 1 (2002). Section 13.39, subdivision 2, is the special provision because it deals specifically with the subject of civil investigative data. It prevails over the general provisions of section 13.02, subdivisions 3 and 13, which provide definitions that are applicable in all other circumstances to classify data as confidential data on individuals or protected nonpublic data.
III.
At oral argument, the Westroms conceded that the orders and objections would have constituted public documents had DOLI filed a petition for an expedited hearing with the office of administrative hearings before releasing the documents to the news organizations. In essence, the Westroms agreed that the orders and objections would have become public documents upon the filing of the petition because they then would become a part of the record of an administrative contested case proceeding.
It appears from the record that DOLI filed a petition for an expedited hearing sometime between October 19, 1998, when *37 the objections and orders were first released to the news media, and December 28, 1998, when a letter written by the Westroms suggests that the matter had been "filed for hearing[.]" Viewing the evidence in the light most favorable to the Westroms, there are genuine issues of material fact as to whether the orders and objections were released to the media before DOLI commenced the contested case proceeding. Thus, we conclude that summary judgment was not appropriate. We leave it to the district court to determine when the orders and objections may have lost their character as protected nonpublic or confidential civil investigative data.
IV.
DOLI argues that the protection of civil investigative data under section 13.39, subdivision 2, is overridden by provisions of the Workers' Compensation Act, under which the investigation was undertaken. One provision states:
The department of labor and industry shall be open for the transaction of business during all business hours of each and every day, except Saturdays, Sundays and legal holidays. The hearings of the workers' compensation division are open to the public and may be adjourned from time to time. All the proceedings of the division shall be shown on its records, which are public records.
Minn.Stat. § 175.10. DOLI suggests that this provision is controlling because the creation of orders and objections constitute a "proceeding."
But this provision deals broadly with "proceedings" of the workers' compensation division and goes only so far as to declare them "public," without addressing data privacy issues. We do not find section 175.10 particularly relevant to the issue before us, and, to the extent it is relevant, the more specific provisions of section 13.39, subdivision 2, would prevail over section 175.10.
Another provision of the workers' compensation act states:
On request of the department of labor and industry, and within the time limited therein, every employer of labor, any officer of a labor organization, or any person from whom the department of labor and industry shall find it necessary to gather information, shall make a certified report to the department, upon blanks furnished by it, of all matters covered by the request. The names of persons or concerns supplying such information shall not be disclosed. Every notice, order, or direction given by such department shall be in writing, signed by an officer or inspector of such department, or a person specially designated for the purpose, and be served by the signer. Papers so served and all records and documents of the department are hereby declared public documents and shall not be destroyed within two years after their return or receipt by such department.
Minn.Stat. § 175.24 (2002) (emphasis added). The subject of this provision is the data provided by employers and others in a report that has been requested by DOLI. The orders issued to the Westroms did not request a report under this section and it is therefore irrelevant to the issues before us. Further, because section 175.24 only secondarily addresses the public character of the "records and documents," its provision would not prevail over the more specific requirements of the MGDPA.
We affirm the decision of the court of appeals, reverse the summary judgment granted by the district court, and remand for further proceedings.
Affirmed.
*38 PAGE, Justice (dissenting).
I respectfully dissent. The Minnesota Government Data Practices Act provides that:
All government data collected, created, received, maintained or disseminated by a state agency, political subdivision, or statewide system shall be public unless classified by statute, or temporary classification pursuant to section 13.06, or federal law, as nonpublic or protected nonpublic, or with respect to data on individuals, as private or confidential.
Minn.Stat. § 13.03, subd. 1 (2002).
Under the act, "nonpublic data" means "data not on individuals that is made by statute or federal law applicable to the data: (a) not accessible to the public; and (b) accessible to the subject, if any, of the data." Minn.Stat. § 13.02, subd. 9 (2002). "Protected nonpublic data" means "data not on individuals which is made by statute or federal law applicable to the data (a) not public and (b) not accessible to the subject of the data." Minn.Stat. § 13.02, subd. 13 (2002). "Private data on individuals" means "data which is made by statute or federal law applicable to the data: (a) not public; and (b) accessible to the individual subject of that data." Minn.Stat. § 13.02, subd. 12 (2002). "Confidential data on individuals" means "data which is made not public by statute or federal law applicable to the data and is inaccessible to the individual subject of that data." Minn.Stat. § 13.02, subd. 3 (2002).
The Westroms contend and the court concludes that the orders and objections at issue are either protected nonpublic data or confidential data on individuals because the data contained in the orders and objections was collected by the Department of Labor and Industry (DOLI) as part of an active investigation undertaken for the purpose of commencement or defense of a pending civil legal action under Minn.Stat. § 13.39, subd. 2 (2002).[1] While I agree that the data was collected by DOLI, I do not agree that it was collected as part of an active investigation undertaken for purposes related to the commencement or defense of a pending civil legal action. The data collected by DOLI contained in the orders and objections at issue here consists of the names of the employers, the fact that the employers did not carry workers' compensation insurance for various periods between April 1, 1996, and November 7, 1997, and the employers' denials and explanations with respect to their alleged failure to carry workers' compensation insurance. In reaching its conclusions about the status of the data, the court ignores the status of the data at the time it was collected, which was before it became part of the "active investigation." Although the court concludes that the "orders are inextricably linked to and are the product of the data collected by DOLI during its investigation," in fact, the data is "inextricably" linked to and collected by the Special Compensation Fund (SCF) at DOLI pursuant to Minn.Stat. § 176.185, subd. 1 (2002), and Minn. R. 5222.2002 (2003).
"Every employer * * * liable under this chapter to pay compensation shall insure payment of compensation with some insurance *39 carrier * * * or obtain a written order from the commissioner of commerce exempting the employer from insuring liability for compensation and permitting self-insurance of the liability." Minn.Stat. § 176.181, subd. 2 (2002). Minnesota Statutes § 176.185, subdivision (1) (2002), provides in relevant part, "[w]ithin ten days after the issuance of a policy of insurance covering the liability to pay compensation under this chapter * * *, the insurer shall file notice of coverage with the commissioner under rules and on forms prescribed by the commissioner." The rules enacted by DOLI require insurers to file notices of coverage with the Minnesota Workers' Compensation Insurers Association, Inc. (MWCIA). Minn. R. 5222.2002 (2003). At the point this data is collected under section 176.185, subdivision 1, and the rule, there is no statute, temporary classification, or federal law classifying the data as nonpublic, protected nonpublic, private data on individuals, or confidential data on individuals. Therefore, the data is public when collected.
Indeed, according to a manual co-written by the then-acting director of the SCF, although insurance registrations and terminations are submitted to MWCIA:
The Special Compensation Fund Insurance Verification Section still remains the official source of all information regarding workers' compensation coverage in the State of Minnesota. All inquiries for this purpose should be addressed to that section as follows:
Special Compensation Fund
Insurance Verification
444 Lafayette Road
St. Paul, MN 55101
Most inquires can be accomplished much more efficiently by telephone, and the number to call is:
(612) 296-2170, Ext. 27 or 28
The information available from this source includes:
1. Coverage related to a particular date or a particular period.
2. All known coverage for a particular employer.
3. The name of the insurer.
4. The Policy Number for each period of coverage.
The sources of this information are paper records maintained in the Insurance Verification Section for periods from 1970 through February 28, 1987; computer files of the workers' Compensation Insurers Association for periods form [sic] 1983 on an unofficial basis and from March 1, 1987 that is the official record (Insurance Verification has a terminal in the office to obtain this information.); and information extracted from the actuarial files the Workers' Compensation Insurers Association maintains on all covered employers. All sources are checked, when necessary, but if the only source of information available is the actuarial files, there can be considerable delays if the particular file needed is out for auditing.
Insurance Verification will provide a telephone response whenever possible, followed up with a written record in all cases. If any doubt exists as to the proper insurer for an employer, Insurance Verification should be contacted prior to filing a Claim Petition or Petition for Contribution.
Leo M. Eide & William R. Howard, A Primer on the Special Compensation Fund 56-58, in Minnesota Institute of Legal Education, Workers' Compensation (1987).
Thus, it is clear that before the "active investigation" began, the names of the employers and information with respect to the employers' lack of coverage was in *40 DOLI's possession and constituted public data under Minn.Stat. § 13.03, subd. 1. The fact that this data was used in an active investigation commenced after it was collected does not convert that public data into either protected nonpublic data or confidential data on individuals.
As the Eide/Howard manual points out, the data at issue is public and is available to any member of the public merely by placing a telephone call to the SCF. It would be anomalous to, on one hand, have the data classified as public and available to the public by telephone while, on the other hand, have it classified as either protected nonpublic data or confidential data on individuals because it is contained in an order notifying the employer of a workers' compensation insurance coverage violation. Placing public data into an order issued as part of a pending civil legal action does not cause the data to cease being public. We recently stated that the Data Practices Act is "intended to promote the general welfare by making government information accessible to the people." Star Tribune Co. v. Univ. of Minn. Bd. of Regents, 683 N.W.2d 274, 286 (2004). In the end, the court's interpretation of section 13.39, subdivision 2, in this case ill serves the cause of openness in government. Therefore, I would reverse the court of appeals and reinstate the district court orders dismissing the Westroms' actions.[2]
NOTES
[1] Although the Penalty Administrator's recommended penalty is not in the record, his affidavit states that his recommendation was accepted by the Director and is set out in the Order to Comply and Penalty Assessment.
[2] The release of these documents drew significant attention because it occurred during the final days of Torrey Westrom's campaign for re-election to the Minnesota House of Representatives.
[3] DOLI issued the orders, and the Westroms filed their objections, pursuant to Minn.Stat. § 176.181, subd. 3(a) & (b) (2002), which provide:
(a) The commissioner [of DOLI], having reason to believe that an employer is in violation of subdivision 2, may issue an order directing the employer to comply with subdivision 2, to refrain from employing any person at any time without complying with subdivision 2, and to pay a penalty of up to $1,000 per employee per week during which the employer was not in compliance.
(b) An employer shall have ten working days to contest such an order by filing a written objection with the commissioner, stating in detail its reasons for objecting. If the commissioner does not receive an objection within ten working days, the commissioner's order shall constitute a final order not subject to further review, and violation of that order shall be enforceable by way of civil contempt proceedings in district court. If the commissioner does receive timely objection, the commissioner shall refer the matter to the office of administrative hearings for an expedited hearing before a compensation judge. The compensation judge shall issue a decision either affirming, reversing, or modifying the commissioner's order within ten days of the close of the hearing. If the compensation judge affirms the commissioner's order, the compensation judge may order the employer to pay an additional penalty if the employer continued to employ persons without complying with subdivision 2 while the proceedings were pending.
[4] There is no indication in the record that this matter was set for hearing before a compensation judge after the filing of a timely objection, as is required by section 176.181, subd. 3(b). According to the Westroms' opposition to DOLI's motion for summary judgment, the parties reached a confidential settlement with regard to the dispute in January 2000.
[5] On March 9, 1999, DOLI issued a Second Amended Order to Comply and Penalty Assessment aimed at Dennis and Trevor Westrom, individually, and WBC. This order did not list Torrey Westrom as an individual respondent.
[6] The dissent suggests that the data reflected in the orders was in the possession of DOLI, pursuant to the employers reporting requirements of Minn.Stat. § 176.195, subd. 1 (2002), before the ISU began its investigation, and therefore that the data was not collected as a part of that investigation. There are several difficulties with this suggestion. First, it presents an issue that was not raised by DOLI or addressed in the parties' briefs. Second, there is no support for this suggestion in the record. The only description in the record of the ISU investigation is in the affidavit of a senior investigator, who does not disclose the source of the data relied on in the orders, but does state that the ISU investigation lasted almost 7 months, from July 17, 1997, to March 6, 1998. The duration of the investigation does not support the conclusion that the investigators relied solely on data available by a single phone call to the Special Compensation Fund Insurance Verification Section. Third, the information available from the Insurance Verification Section is only the name of the insurer and the policy number for each period of coverage for a particular employer. That information might disclose that there was no insurance in effect for a certain period but would not support the conclusions, as reflected in the orders, that insurance was required for that period (i.e. that the individual or company had employees) or that the named respondents were persons who were legally responsible to obtain insurance coverage or to pay any penalties for the failure to obtain coverage. Consequently, this suggestion does not provide a basis for summary judgment.
[1] Section 13.39, subdivision 2, provides:
(a) Except as provided in paragraph (b), data collected by state agencies, political subdivisions, or statewide systems as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action, or which are retained in anticipation of a pending civil legal action, are classified as protected nonpublic data pursuant to section 13.02, subdivision 13, in the case of data not on individuals and confidential pursuant to section 13.02, subdivision 3, in the case of data on individuals.
[2] While I believe that the court's analysis of the section 13.39 language classifying data collected as part of an active investigation as protected nonpublic or confidential is faulty, I do not intend to discuss that analysis here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591690/ | 70 S.W.3d 148 (2001)
John N. MASTIN, Appellant,
v.
Nita R. MASTIN, Appellee.
No. 04-00-00428-CV.
Court of Appeals of Texas, San Antonio.
August 29, 2001.
Rehearing Overruled January 17, 2002.
*150 Richard D. Woods, Law Office of Richard D. Woods, Robert J. Myers, Robert J. *151 Myers & Associates, San Antonio, for Appellant.
Sam C. Bashara, Law Offices of Sam Bashara, P.C., San Antonio, for Appellee.
Before TOM RICKHOFF, Justice, CATHERINE STONE, Justice, and SARAH B. DUNCAN, Justice.
OPINION
TOM RICKHOFF, Justice.
Nita Mastin sued her former husband, John Mastin, for breach of their contractual alimony agreement. All issues relating to the alimony arrearage were determined in Nita's favor through partial summary judgment. The issues of acceleration of future payments and attorney's fees were resolved in Nita's favor after a bench trial. Because we conclude that Nita did not give clear notice of an intent to accelerate future payments, we reverse in part.
BACKGROUND
Nita and John's divorce decree obligated John to pay Nita contractual alimony as follows:
Petitioner, John N. Mastin agrees to pay to Respondent, Nita R. Mastin, monthly contractual alimony in the sum of $1,289.90. Said monthly payment shall increase in an amount equal to any increase in interest only on that certain [mortgage] note due to San Antonio Savings Association, or its successor, for the real property herein awarded to [Nita], according to the Renewable Rate Note dated November 23, 1983, and the Deed of Trust of even date therewith. Likewise, in the event of a decrease in the variable interest rate on said note, the contractual alimony payment shall decrease accordingly. [John] may pre-pay any portion, at his option without penalty, provided that [John] gives [Nita] sixty (60) days advance notice....
The contractual alimony payments continue as long as Nita is alive, remains the owner of the home, and the note remains unpaid. The decree also provides that John's contractual alimony payments decrease if the home is sold.
After making the monthly payment for a number of years, John began to pay Nita $1,000 per month and Nita accepted the payments for eight years. In May and June 1995, Nita sent letters to John complaining that he was under-paying his alimony. On December 14, 1999, Nita sent John a letter demanding payment and warning that if a lawsuit was required, acceleration was a reserved remedy. Nita sued John in January 2000. John filed a general denial.
The trial court rendered a partial summary judgment in Nita's favor, in which the court held that the alimony agreement was unambiguous and John was required to pay Nita $1,289.90 per month adjusted annually to reflect the increase or decrease in the interest rate on the mortgage note. The court found John in arrears in the amount of $19,524.44, with interest in the amount of $2,151.45. After a bench trial, the court signed a final judgment, incorporating the partial summary judgment, ordering that Nita recover from John $105,324.06, with interest, plus $25,354.94 in attorney's fees, $800 in accounting fees, and $23,500 if John pursued an unsuccessful appeal.
PARTIAL SUMMARY JUDGMENT
John asserts the trial court erred in rendering summary judgment in Nita's favor because the contractual alimony agreement is ambiguous, there are fact questions as to how Nita applied his payments to her and as to the amount of any arrearage, *152 and the trial court ignored his affirmative defenses.
In her summary judgment affidavit, Nita stated, "The principal and interest monthly payments to San Antonio Savings and Loan on the date of our divorce was $962.64. The total monthly payment to San Antonio Savings and Loan on the date our divorce was heard in October, 1989, which included an escrow for taxes and insurance, was $1289.90." John argues the alimony payment should consist only of the principal and interest on the mortgage note. He asserts the agreement is ambiguous because it was never his intention to pay the taxes, insurance, or homeowner's association fees associated with the house; therefore, there is a fact issue as to whether the $1,289.90 alimony payment includes amounts other than principal and interest.
Whether a contract is ambiguous is a question of law that must be decided by examining the contract as a whole in light of the circumstances present when the contract was entered. Columbia Gas Trans. Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996); Coker v. Coker, 650 S.W.2d 391, 394 (Tex.1983). A contract is not ambiguous if it can be given a definite or certain meaning as a matter of law. Columbia Gas, 940 S.W.2d at 589; Coker, 650 S.W.2d at 393. An ambiguity does not arise simply because the parties advance conflicting interpretations of the contract. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex.1994). Extrinsic evidence is inadmissible to contradict or vary the meaning of the unambiguous language of the written contract. National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 521 (Tex.1995).
On the other hand, if the contract is subject to two or more reasonable interpretations after applying the pertinent rules of construction, the contract is ambiguous, and creates a fact issue as to the parties' intent. Id. at 520. An ambiguity in a contract may be said to be "patent" or "latent." A patent ambiguity is evident on the face of the contract. Id. A latent ambiguity arises when a contract that is unambiguous on its face is applied to the subject matter with which it deals and an ambiguity appears by reason of some collateral matter. Id. If a latent ambiguity arises from this application, parol evidence is admissible for the purpose of ascertaining the true intention of the parties as expressed in the agreement. Id.
Here, the parties' understanding as to the manner in which the contractual alimony payment was calculated is relevant only if the agreement is ambiguous. It is not. The clear language of the agreement states that the contractual alimony payment is a specific amount, which may vary based only on a single expensethe interest rate on the mortgage note. The agreement does not tie the contractual alimony amount to any other expense that mightor might notbe associated with the home or the mortgage note. We hold that the contract is not reasonably susceptible to more than one interpretation; therefore, the trial court did not err in determining the decree was unambiguous, and we affirm the summary judgment on that issue.
John next complains there is a fact issue with regard to how Nita applied his payments. It is undisputed that John sent Nita a single monthly check and he did not differentiate between his monthly child support payment and his monthly alimony obligation. Nita credited the payment first toward the child support obligation and the balance toward the alimony obligation. The general rule is that where a debtor makes payment to his creditor without directing the manner of application of the payment, the creditor may apply *153 the payment to any one of the various debts owed him by the debtor. W.E. Grace Mfg. Co. v. Levin, 506 S.W.2d 580, 585 (Tex.1974). The creditor is not bound by the debtor's uncommunicated intentions as to the application of the payment. Peden v. Carpenter, 516 S.W.2d 19, 21 (Tex. Civ.App.Amarillo 1974, no writ). Because John did not designate how Nita should apply his monthly payment, he cannot now create a fact issue by asserting that she should have applied the payment first to his contractual alimony obligation and second to his child support obligation.
John also contends the trial court erred in not considering his affirmative defenses. In his response to Nita's motion for summary judgment, John asserted only that Nita was estopped to deny he was responsible for only principal and interest on the note and estopped from asserting he was responsible for taxes and insurance.[2] On appeal, John argues that Nita accepted his lesser payments for several years without complaint, giving rise to the affirmative defenses of estoppel, payment, accord and satisfaction, and waiver. To properly preserve a defense for purposes of appeal, John had to expressly present the defense to the trial court in the summary judgment proceeding. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 677-79 (Tex.1979). Because John did not raise these defenses, other than the one estoppel argument raised in his response to the motion for summary judgment, these defenses were waived.
Finally, John asserts the method by which the experts calculated the alleged alimony arrearage creates a fact issue. Nita's motion for summary judgment was supported by the affidavit of her accountant, who explained how she calculated the arrearage of almost $20,000. John's response was supported by a controverting affidavit from his accountant, who explained how he calculated an overpayment by John to Nita of approximately $30,129.
John's expert's opinion has no probative value because it is based on erroneous assumptionsthat the alimony obligation was limited to principal and interest only and that Nita improperly applied John's payments to her. Because we already have held that these assumptions are incorrect, John's summary judgment evidence is not sufficient to create a fact issue. See Burroughs Wellcome v. Crye, 907 S.W.2d 497, 499 (Tex.1995) (an expert's opinion has no probative value and cannot support a judgment if that opinion is based on assumed facts which vary materially from actual, undisputed facts).
ACCELERATION OF DAMAGES
After a bench trial, the court accelerated John's contractual alimony payments in the amount of $82,528.22.[3] John first complains that Nita did not give him notice of her intention to accelerate. Nita contends John waived his complaint because he did not file special exceptions or raise failure to provide him notice as an affirmative defense in his answer or response to Nita's motion for summary judgment.
*154 A plaintiff or defendant who desires to rely on either an affirmative defense listed in the rules of civil procedure or upon any other matter that constitutes an avoidance of an opposing party's claim must plead that defense. See Tex.R. Civ. P. 94. Lack of notice is an affirmative defense that must be pled. Espinoza v. Victoria Bank & Trust Co., 572 S.W.2d 816 (Tex.Civ.App.Corpus Christi 1978, writ ref'd n.r.e.) (lack of notice waived by failure to plead); Micrea, Inc. v. Eureka Life Ins. Co. of America, 534 S.W.2d 348, 357 (Tex.Civ.App.Fort Worth 1976, writ ref'd n.r.e.) (same).
However, "when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Tex.R. Civ. P. 67; see also Green v. Parrack, 974 S.W.2d 200, 202 (Tex.App.San Antonio 1998, no pet.) (suggesting res judicata may be tried by express or implied consent as if raised in pleadings). Trial by consent is intended to cover the exceptional case where it clearly appears from the record as a whole that the parties tried the unplead issue. Stephanz v. Laird, 846 S.W.2d 895, 901 (Tex.App.Houston [1st Dist.] 1993, writ denied). It is not intended to establish a general rule of practice and should be applied with care, and never in a doubtful situation. Id. To determine whether the issue was tried by consent, the court must examine the record not for evidence of the issue, but rather for evidence of trial of the issue. Id.
Here, John brought the issue of lack of notice to the trial court's attention during the bench trial. When Nita introduced into evidence the mortgage statement, John objected to the attempt to accelerate the indebtedness on several grounds, one of which was that he was not given proper notice of acceleration or an opportunity to cure any default. Nita did not object to the lack of pleadings, but responded to John's argument in kind. The parties argued over whether the following, contained in Nita's prayer for relief in her petition, constituted notice:
Nita prays that if necessary John be cited to appear and answer herein; that upon trial she have judgment against him for the total amount of alimony arrearage ...; that she be granted acceleration if she so requests at the time of trial; that she be granted her attorney's fees....
The trial court stated it was not aware of any requirement for specific notice and overruled John's objection. Under these circumstances, we find that the issue of notice was tried by consent; therefore, John did not waive lack of notice as a defense. We next consider whether Nita's prayer for relief was sufficient to provide John with notice of acceleration.
Acceleration is a harsh remedy with draconian consequences for the debtor and Texas courts look with disfavor upon the exercise of this power because great inequity may result. See e.g., Davis v. Pletcher, 727 S.W.2d 29, 35 (Tex.App.San Antonio 1987, writ ref'd n.r.e.) (exercise of the power of acceleration is a harsh remedy and deserves close scrutiny). When a creditor has the option to accelerate a debt upon the debtor's default, equity demands notice be given of the intent to exercise the option. Ogden v. Gibraltar Sav. Assoc., 640 S.W.2d 232, 233 (Tex. 1982); see also Shumway v. Horizon Credit Corp., 801 S.W.2d 890, 895 (Mauzy, J., concurring) (Tex.1991) (noting that Supreme Court has long recognized the harshness of the remedy of acceleration and has sought to mitigate its effects by imposing equitable requirements on the holder of a promissory note).
*155 The harshness of the option of accelerating the maturity of an extended obligation requires both a strict reading of the terms of the option and notice to the debtor. Shumway, 801 S.W.2d at 893. This same principle also requires that notice of intent to accelerate and notice of acceleration be clear and unequivocal. Id. Given that an option to accelerate an obligation can neither be created nor exercised except in terms clear and unequivocal, it follows that a waiver of the right to notice of the intent to exercise an acceleration option cannot be effective unless it meets equally exacting standards. Id.
Although the cases requiring unequivocal language regarding acceleration and waiver involve promissory notes, the principle should apply with equal force to any long-term debt. Most especially, the principle should be applied to a debt arising in a divorce decree where the potential animosity between the parties demands that they deal with each other on arms-length terms. Here, the divorce decree gave Nita the option to accelerate, stating, "In the event of a default on the alimony, [Nita] may accelerate the remaining amounts due and [John] will pay [Nita's] attorney's fees and all costs in enforcing payment thereof. [John] will not be in default until thirty-one (31) days following the due date." John did not waive his right to receive notice. Nita's prayer for relief did no more than repeat the option conferred in the divorce decree. See Ogden, 640 S.W.2d at 234 ("may" language was not clear and unequivocal notice that Gibraltar would accelerate). Because Nita's prayer for relief did not give unequivocal notice of an intent to accelerate, any attempted acceleration was ineffective, and we reverse the judgment on that issue.
ATTORNEY'S FEES AND ACCOUNTING COSTS
John asserts the attorney's fees and costs awarded to Nita are excessive and unreasonable. The trial court awarded Nita $25,354.94 in attorney's fees, $800 in accounting fees, and $23,500 if John pursued an unsuccessful appeal.[4]
In awarding attorney's fees, the trial court, as the trier of fact, must take into account various factors such as the nature and complexity of the case, the nature of the services provided by counsel, the time required for trial, the amount of money involved, the client's interest that is at stake, the responsibility imposed upon counsel, and the skill and expertise required. Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex.1990). The allowance of attorney's fees rests within the sound discretion of the trial court and will not be reversed without a showing of an abuse of that discretion. Id. Generally, the testimony of an interested witness, though uncontradicted, does no more than raise a fact issue to be determined by the jury. Id. at 882. However, an exception to this rule exists where the testimony of an interested witness is not contradicted by any other witness, or attendant circumstances, and the same is clear, direct, and positive, and free from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon. Id.
*156 Sam Bashara, Nita's attorney, testified that he was familiar with fees charged in connection with cases such as the one here and was familiar with the reasonableness of such charges. Nita and Bashara entered into a contract, under which she agreed to pay Bashara $350 per hour, plus expenses. When they entered into the contract, Bashara was charging $400 per hour. A copy of Bashara's detailed time sheet was admitted into evidence, without objection. Bashara billed 72 hours, included in which was time spent on various correspondence, Nita's motion for summary judgment, written discovery, and mediation. Bashara believed the total fees charged were reasonable and the services he provided necessary. Bashara said he did not conduct depositions in an attempt to handle the dispute in an expeditious manner and to limit his fees.
On appeal, John contends Bashara's fees were excessive because Bashara considered this case to be straightforward and simple. John argues that his attorney's testimony regarding fees was more compelling given the work devoted to the case. John was represented by Robert Meyers, who testified that he thought a less experienced attorney, charging a lower rate, could have accomplished the same result given the nature of the issues in dispute. Meyers' contract with John called for an hourly rate of $250.
We conclude that the court did not abuse its discretion in awarding $25,354.94 in attorney's fees to Nita.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
John complains he has been harmed by the trial court's failure to make findings of fact and conclusions of law, a complaint that is contradicted by the findings and conclusions found in the record before this court.
CONCLUSION
We reverse the trial court's judgment on the issue of the acceleration of future payments and remand the case for further proceedings consistent with this opinion. We affirm the judgment in all other respects.
NOTES
[2] In John's amended answer, he pled "the affirmative defenses of payment and accord and satisfaction in that [he had] paid all sums required of him to be paid under the contract, and [had] pre-paid a portion of his obligation under the contract."
[3] The total amount adjudged against John was $105,324.06. This amount includes the arrearage contained in the summary judgment award, unpaid amounts from the date of summary judgment to the date of trial, and the accelerated amount of the mortgage note of $82,528.22.
[4] Although John phrases his issue as complaining about the reasonableness of both the attorney's fees and accounting fees, his argument focuses only on the attorney's fees. John does not contest the reasonableness of appellate attorney's fees. Because his complaint as to the reasonableness of the accounting fees is inadequately briefed, this argument was not preserved for appellate review, and we consider only whether the trial court abused its discretion in its award of attorney's fees in the amount of $25,354.94. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591703/ | 19 So.3d 370 (2009)
STATE of Florida, Appellant,
v.
Mercedes NAVARRO and Oscar Ramon Oliva, Appellees.
No. 2D08-4888.
District Court of Appeal of Florida, Second District.
May 22, 2009.
*371 Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellant.
Guillermo E. Gomez, Jr., of Gomez & Touger, P.A., Tampa, for Appellee Mercedes Navarro.
No appearance for Appellee Oscar Ramon Oliva.
WALLACE, Judge.
The State appeals the circuit court's order granting a motion to suppress evidence in favor of Mercedes Navarro and Oscar Ramon Oliva (the Appellees). Because the circuit court used the incorrect standard of proof in determining the voluntariness of the consent search that resulted in the discovery of marijuana plants, we reverse the order and remand this case to the circuit court for reconsideration of the motion under the correct standard.
THE FACTS AND PROCEDURAL BACKGROUND
Hillsborough County sheriff's deputies found marijuana plants inside the Appellees' residence during a consent search that followed a "knock and talk" at the Appellees' front door. Ms. Navarro filed a motion to suppress the marijuana plants on the ground that any consent given amounted to acquiescence to authority and was involuntary. At the hearing on the motion, Mr. Oliva adopted Ms. Navarro's motion. The primary issue at the hearing was the voluntariness of Mr. Oliva's consent to the search.
The circuit court's order granting the motion contained detailed findings of fact and conclusions of law. The circuit court's findings of fact on the circumstances that led the deputies to conduct a knock and talk at the Appellees' residence are as follows:
Deputy Julius Grice of the Hillsborough County Sheriff's Office testified that what brought him to the target location was that after several individuals were arrested in Polk County for their involvement with marijuana grow house operations, Deputy Grice ran the individuals' information through the Hillsborough *372 County Property Appraisal website to see if any of them also owned property in Hillsborough County. He testified that one of the individuals arrested in Polk County also owned property in Hillsborough County so at around 12:30 p.m. on August 4, 2007, he and Deputies Eric Powell and Javier Ortiz went to the target property to conduct a "knock and talk." Grice testified that the plan was "to make contact with the owners of the house and ask for consent to search and see if there was any marijuana growing in the house."
(Citations to the hearing transcript omitted.)
Here, the deputies did not decide to conduct the knock and talk based upon a tip from an informant or a citizen's complaint. Moreover, before approaching the residence and knocking on the front door, the deputies conducted only a limited investigation. They did drive by the residence and observe it "for just a short time." This observation revealed that the garage door window panes at the residence were painted. One of the deputies testified that such sealed windows are "sometimes indicative" of a marijuana cultivation operation. However, the knock and talk under review in this case was not based on probable cause or even a reasonable suspicion. Instead, the deputies acted based on what might be described as an "educated guess" or a "hunch." At the hearing on the motion to suppress, the State argued that the knock and talk was a consensual encounter.
The circuit court found that the knock-and-talk encounter constituted illegal police conduct because it was not based on a tip or complaint. Based upon its conclusion concerning the illegality of the knock and talk, the circuit court ruled that Mr. "Oliva's consent may only be found voluntary if there is clear and convincing evidence that his consent was not the product of the illegal knock and talk." After a detailed review of the evidence, the circuit court found that the State had failed to establish the voluntariness of Mr. Oliva's consent by clear and convincing evidence. Accordingly, the circuit court entered an order granting the motion to suppress.
THE STATE'S ARGUMENT
On appeal, the State challenges the circuit court's conclusion that the knock-and-talk encounter constituted illegal police conduct. In particular, the State argues that the circuit court erred in ruling that a knock and talk must be based on a tip or complaint. The corollary of this argument is that the circuit court used an incorrect standard of proof in assessing the voluntariness of the consent to the search.
DISCUSSION
A knock and talk "is an investigative technique whereby an officer knocks on the door to a residence and attempts to gather information by explaining to the occupants the reason for the police interest." United States v. Norman, 162 Fed. Appx. 866, 869 (11th Cir.2006); see also Luna-Martinez v. State, 984 So.2d 592, 598 (Fla. 2d DCA 2008) (quoting Murphy v. State, 898 So.2d 1031, 1032 n. 4 (Fla. 5th DCA 2005)). See generally Fern L. Kletter, Annotation, Construction and Application of Rule Permitting Knock and Talk Visits under Fourth Amendment and State Constitutions, 15 A.L.R.6th 515 (2006). A knock and talk is considered a legitimate investigative procedure as long as it does not become a constructive entry. State v. Triana, 979 So.2d 1039, 1043 (Fla. 3d DCA 2008).
In Triana, the Third District explained that a knock and talk "is a purely consensual encounter, which officers may initiate without any objective level of suspicion." *373 Id. (emphasis added); see also United States v. Cruz-Mendez, 467 F.3d 1260, 1264 (10th Cir.2006) ("[A] `knock and talk' is a consensual encounter and therefore does not contravene the Fourth Amendment, even absent reasonable suspicion."); United States v. Cormier, 220 F.3d 1103, 1109 (9th Cir.2000) ("[N]o suspicion needed to be shown in order to justify the `knock and talk.'"). Nevertheless, the circuit court held that a knock and talk cannot be based on a hunch and must stem from a tip or complaint. The circuit court relied on several Florida cases to support this conclusion. However, only Luna-Martinez, Triana, and Langley v. State, 735 So.2d 606 (Fla. 2d DCA 1999), ruled on the legality of a knock and talk. The other cases cited in the circuit court's order are inapposite. See Wheeler v. State, 956 So.2d 517, 520 (Fla. 2d DCA 2007) (deciding whether an emergency justified a warrantless entry into the defendant's home and whether the inevitable discovery theory applied); Moore v. State, 830 So.2d 883, 886 (Fla. 2d DCA 2002) (ruling on whether the person who consented to the police's entry into the residence had the authority to do so); Murphy v. State, 898 So.2d 1031, 1035-36 (Fla. 5th DCA 2005) (analyzing whether a warrantless search of a motel room was based on exigent circumstances); Miller v. State, 865 So.2d 584, 587 n. 2 (Fla. 5th DCA 2004) ("[W]e do not view this as a `knock and talk' case . . . ."); Williams v. State, 788 So.2d 334, 337 (Fla. 5th DCA 2001) (same). Luna-Martinez and Langley do not conflict with the Third District's explanation of the law in Triana. Thus the circuit court's conclusion that a knock and talk cannot be based on a hunch and must stem from a tip or complaint finds no support in the case law.
Furthermore, the policy behind knock-and-talk encounters supports this conclusion. The rationale for a knock and talk is that
[a]bsent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person's right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man's `castle' with the honest intent of asking questions of the occupant thereofwhether the questioner be a pollster, a salesman, or an officer of the law.
Davis v. United States, 327 F.2d 301, 303 (9th Cir.1964). "Thus, `[o]fficers are allowed to knock on a residence's door or otherwise approach the residence seeking to speak to the inhabitants just a[s] any private citizen may.'" United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir.2006) (first alteration in original) (quoting Estate of Smith v. Marasco, 318 F.3d 497, 519 (3d Cir.2003)). The circuit court's ruling conflicts with the proposition that police officers may approach a residence and speak to the residents just as any private citizen may. Thus the circuit court fell into error when it ruled that the knock-and-talk encounter at issue in this case amounted to illegal police conduct.
Our conclusion about the legality of the knock-and-talk encounter brings us to the question of the standard of proof applicable to the determination of the voluntariness of the consent search:
Where the state asserts it had the right to search . . . despite the absence of a warrant because the defendant consented to the search, the state has the burden to prove that consent was freely and voluntarily given. The burden of proof in these cases depends on whether there is invalid police conduct prior to obtaining the consent. "Under ordinary circumstances the voluntariness of the consent *374 to search must be established by preponderance of the evidence." With invalid police conduct like prolonged detention, threats to obtain a warrant, or repeated requests for consent, the burden of proof is elevated to the clear and convincing standard.
Dormezil v. State, 754 So.2d 168, 169 (Fla. 5th DCA 2000) (citations omitted) (quoting Denehy v. State, 400 So.2d 1216, 1217 (Fla. 1980)). Here, the circuit court applied the clear and convincing evidence standard of proof because it found illegal police conduct based on its erroneous interpretation of the law concerning knock-and-talk encounters. But based on our conclusion above and because the knock and talk was not otherwise illegal, the appropriate standard of proof was preponderance of the evidence. Accordingly, we reverse the circuit court's order and remand for reconsideration of the motion to suppress under the proper standard of proof. See State v. T.L.W., 783 So.2d 314, 317 (Fla. 1st DCA 2001).
Reversed and remanded for further proceedings consistent with this opinion.
KHOUZAM, J., and CASE, JAMES R., Associate Senior Judge, Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591557/ | 936 So. 2d 1279 (2006)
Max T. MALONE, et al., Plaintiff-Appellee
v.
Joe SHYNE, Defendant-Appellant.
No. 41,781-CA.
Court of Appeal of Louisiana, Second Circuit.
August 29, 2006.
Writ Denied September 5, 2006.
*1281 Davis Law Office, LLC, by S.P. Davis, Sr., for Appellant.
Wiener, Weiss & Madison, by M. Allyn Stroud, Shreveport, The Pesnell Law Firm, by Billy R. Pesnell, J. Whitney Pesnell, W. Alan Pesnell, Shreveport, for Appellees, Max T. Malone and James Edward Green.
Bennett L. Politz, Shreveport, for Appellee, Gary Loftin, in His Official Capacity as Clerk of Court in and for Caddo Parish, LA.
Before BROWN, WILLIAMS, STEWART, GASKINS, CARAWAY, PEATROSS, DREW, MOORE, and LOLLEY, JJ.
CARAWAY, J.
In 2003, Louisiana Governor Murphy J. Foster granted Joe Shyne a pardon following this court's ruling in 2002 disqualifying Mr. Shyne as a candidate for public office pursuant to a 1998 amendment to Louisiana's Constitution.[1] Mr. Shyne had received a prior federal conviction of a felony. Governor Foster's pardon expressly granted Mr. Shyne "a full pardon with restoration of all civil and citizenship rights." Mr. Shyne has now attempted to qualify as a candidate for the Shreveport City Council, and plaintiff[2] brings this action challenging his candidacy pursuant to La. Const. art. I, § 10(B)(1) which disqualifies convicted felons from holding public office. Nevertheless, the trial court's ruling determined that the gubernatorial pardon power may not restore the right to hold office denied by Louisiana law. We now determine that the Governor of Louisiana did not exceed his authority by pardoning Mr. Shyne from the constitutionally enacted disqualification for public office. When the 1998 amendment placed that disqualification upon a Louisiana citizen, it simultaneously gave the governor a pardon power for its removal. Federal law allows Louisiana to impose this disqualification on a federally convicted felon and to also remove the disqualification by exercise of a gubernatorial pardon. Accordingly, we reverse the trial court's decision.
Facts
On January 21, 1994, Joe Shyne entered a guilty plea to the crime of extortion by a *1282 public official in violation of 18 U.S.C. § 1951. A judgment of conviction was entered in the United States District Court, Western District of Louisiana on April 7, 1994, sentencing Mr. Shyne to twelve months and one day imprisonment and ordering him to surrender for service of sentence on May 2, 1994. Upon his release from prison, Mr. Shyne was placed on supervised release for a period of three years. The record contains evidence showing that Mr. Shyne was released from prison on March 15, 1995, and would have apparently then begun his three-year probationary term.
On August 29, 2003, Louisiana Governor Murphy J. Foster issued a "Grant of Clemency to Joe Shyne" upon recommendation of the Louisiana Board of Pardons. The Governor granted Mr. Shyne a "full pardon with restoration of all civil and citizenship rights, except for the right to own, possess, receive, ship, and transfer firearms to Joe Shyne and do hereby direct you to act accordingly, and for so doing this shall be your sufficient warrant and authority."
On August 9, 2006, Mr. Shyne filed a notice of candidacy for the seat of Shreveport City Councilman, District F, in the September 2006 primary election. On August 18, 2006, James Edward Green, a candidate for the District F Councilman seat, filed a timely petition seeking to have Mr. Shyne disqualified as a candidate for office. The plaintiff contended that Mr. Shyne was disqualified as a candidate pursuant to La. Const. art. I, § 10(B)(1) because (1) he was convicted of a felony under the laws of the United States, (2) had never been pardoned by the President of the United States, and (3) fifteen years had not elapsed since the completion of his original sentence.
By answer to the suit, Mr. Shyne conceded that he was convicted of a federal felony and that fifteen years had not elapsed since the completion of his original sentence. He nevertheless argued that he was qualified to hold public office under La. Const. art. I, § 10(B)(1) because of the Governor's pardon.
On August 23, 2006, the trial court rendered judgment in favor of Green, concluding that La. Const. art. I, § 10(B)(1) required a presidential pardon for Mr. Shyne's federal felony in order for him to qualify to hold public office. This timely appeal followed.
Louisiana Constitutional Law
Three Louisiana Constitutional articles form the focus for resolving the issues before us. Those articles are La. Const. art. I, § 20 (hereinafter referred to as "Art. I, § 20"), La. Const. art. IV, § 5(E)(1) (hereinafter referred to as "Art. IV, § 5(E)(1)"), La. Const. art. I, § 10(B) (hereinafter referred to as "Art. I, § 10(B)" or the "1998 Amendment").
The pertinent provision of Art. I, § 20, which was included in the Louisiana Constitution of 1974, states:
Full rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense.
The provisions of Art. I, § 10(B), which were added by amendment to the constitution in 1998, state:
The following persons shall not be permitted to qualify as a candidate for elective public office or take public elective office or appointment of honor, trust, or profit in this state:
(1) A person who has been convicted within this state of a felony and who has exhausted all legal remedies, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, *1283 would be a felony and who has exhausted all legal remedies and has not afterwards been pardoned either by the governor of this state or by the officer of the state, nation, government or country having such authority to pardon in the place where the person was convicted and sentenced.
(2) A person actually under an order of imprisonment for conviction of a felony.
Article I, Section 10, Subsection C also added by the 1998 Amendment allows the convicted felon to seek public office "fifteen years after the date of the completion of his original sentence."
The pertinent provisions of Art. IV, § 5(E)(1), also originally enacted in 1974, state:
The governor may grant reprieves to persons convicted of offenses against the state and, upon favorable recommendation of the Board of Pardons, may commute sentences, pardon those convicted of offenses against the state, and remit fines and forfeitures imposed for such offenses.
Also, the provisions of La. R.S. 15:529.1(H) state that a "person shall not be qualified to be a candidate for elected public office or take elected office if that person has been convicted of a felony, whether convicted within this state or convicted under the laws of any other state or of the United States, of a crime which, if committed in this state would be a felony, and has not received a pardon therefor."
The starting point in the interpretation of constitutional provisions is the language of the Constitution itself. Ocean Energy, Inc. v. Plaquemines Parish Gov't, 04-66 (La.7/6/04), 880 So. 2d 1. When a constitutional provision is plain and unambiguous and its application does not lead to absurd consequences, its language must be given effect. Id. Unequivocal constitutional provisions are not subject to judicial construction and should be applied by giving words their generally understood meaning. Cajun Elec. Power Co-op. v. Louisiana Pub. Serv. Comm'n, 544 So. 2d 362 (La.1989). When the constitutional language is subject to more than one reasonable interpretation, it is necessary to determine the intent of the provision. Ocean Energy, Inc. v. Plaquemines Parish Gov't, supra. In seeking to ascertain constitutional intent, the same general rules used in interpreting laws and written instruments are followed. East Baton Rouge Parish School Bd. v. Foster, 02-2799 (La.6/6/03), 851 So. 2d 985. In construing a constitutional provision, the courts may consider the object sought to be accomplished by its adoption, and the evils sought to be prevented or remedied, in light of the history of the times and the conditions and circumstances under which the provision was framed. Succession of Lauga, 624 So. 2d 1156 (La.1993). Additionally, if one constitutional provision addresses the subject in general terms, and another addresses the same subject with more detail, the two provisions should be harmonized if possible, but if there is any conflict, the latter will prevail. Ocean Energy, Inc. v. Plaquemines Parish Gov't, supra; Perschall v. State, 96-322 (La.7/1/97), 697 So. 2d 240. However, where the language of a constitutional prohibition makes its aim evident and unequivocal, courts need not consider the historical basis for the prohibition and may not, by separately considering related constitutional provisions, arrive at a construction that detracts from the effectiveness or manifest meaning or purpose of the related provisions. Id.
Discussion
The 1998 Amendment to our Constitution, which added Art. I, § 10(B)(1), disqualifies from holding elective office a person *1284 convicted as a felon, resulting from prosecution either in the state or federal systems. It then provides that this disqualification ends if the party has "been pardoned either by the governor of this state or by" the president of the United States. A literal reading of this pardon provision does not require that only the president may pardon a federal felon and free him from Louisiana's constraint. Likewise, the provision indicates that the governor may pardon a person convicted in the federal system of a crime which would amount to a felony in Louisiana. Our research finds that the federal law allows a gubernatorial pardon of a federal felon to lift a state imposed constraint on the party. Thus, the question presented is solely a matter of our state's constitutional grant of the power to the governor and whether it allows the governor to remove the Louisiana disqualification from a person convicted of a federal crime.
The trial court's ruling effectively conceded that the literal wording of the 1998 Amendment allows the governor's pardon to end Mr. Shyne's disqualification from seeking office. Yet, the trial court looked beyond the 1998 Amendment to the general enumeration of the executive's pardon power in Art. IV, § 5(E)(1), finding that it defined "pardon" in a limited manner which would bar a Louisiana governor's pardon from restoring Louisiana civil rights to any person convicted of a crime against the United States. The phrase "offenses against the state," used for the enumeration of the pardon power in Art. IV, § 5(E)(1) was the focus of the trial court's ruling. Mr. Shyne's disability for holding public office was viewed as resulting from an offense against the United States. Nevertheless, consideration of the federal consequences of Mr. Shyne's offense, the jurisprudence, and the history of the general pardon power in our state and nation suggests that the extent of Louisiana's pardon power specifically authorized by the 1998 Amendment does not hinge on the language relied on by the trial court.
To aid in an analysis of the pardon power, the consequences of a felony offense under both federal and state law should be broken down between the direct criminal punishment for the crime and the collateral civil disabilities imposed for the resulting status of the felon. Only the federal law in this case could punish Mr. Shyne for his conviction with incarceration, fines and related penalties, and no gubernatorial pardon power could change that punishment. In addition to the criminal punishment which Mr. Shyne received, federal regulatory requirements may prevent him from obtaining certain licenses and privileges resulting in collateral federal disabilities for his status as a convicted felon. See, e.g., Hirschberg v. Commodity Futures Trading Comm'n, 414 F.3d 679 (7th Cir. 2005) and Thrall v. Wolfe, 503 F.2d 313 (7th Cir.1974), cert. denied, 420 U.S. 972, 95 S. Ct. 1392, 43 L. Ed. 2d 652 (1975) (involving a pardoned state felon's failed attempt to obtain a federal firearms license).
The collateral consequence of Mr. Shyne's offense against the United States in this case, however, is a citizenship disability which has nothing to do with a federal statute or regulation. Citizenship rights regarding local elective offices are within the purview of the states. Mr. Shyne's disability for holding Louisiana elective office does not result from an offense "against the United States," in the sense that it reflects on a federal policy or interest to restrict his citizenship. Even though Louisiana could not exact corporal punishment for Mr. Shyne's federal conviction, it is allowed to place him under a citizenship disability to promote the policy of good government for Louisiana. As *1285 addressed in this court's prior ruling involving the 1998 Amendment, the disqualification placed upon Mr. Shyne by the State of Louisiana is not punishment as an ex post facto law because the restriction arose to regulate a present situation in furtherance of state policy. Malone v. Tubbs, supra. Only upon the exercise of a presidential pardon may a state's denial of rights to federal felons be questioned based upon the Supremacy Clause. Bjerkan v. United States, 529 F.2d 125 (7th Cir.1975). Nevertheless, even a presidential pardon may not remove all collateral consequences for a federal felony conviction which a state might elect to impose. Carlesi v. New York, 233 U.S. 51, 34 S. Ct. 576, 58 L. Ed. 843 (1914) (state can take into consideration a prior offense committed against the United States after a presidential pardon, as long as the state's action does not constitute punishment.)
In an election contest involving a candidate with a prior federal conviction, the Louisiana Supreme Court, in dicta, recognized this distinction between the state's policy interest for setting qualifications for voters or candidates with federal convictions and the federal government's interest for directly punishing their offenses against the United States. Crothers v. Jones, 239 La. 800, 120 So. 2d 248 (1960). The court made the following observation, citing an Alabama ruling:
Our research has revealed no authority which would have made it incumbent upon Jones to secure a pardon from the President of the United States before registering in Louisiana. He had served his sentence and had paid the fine assessed against him. "True only the President could grant a pardon for remission of the fine and release from imprisonment. But no official of the Federal government would have interest in the matter of restoration of civil rights tending to the qualifications of the convicted person for an office under State authority."
Id. at 120 So. 2d 254.
In summary, a state's denial of the right to hold office does not effect criminal punishment for an offense against the United States, nor is it a collateral consequence limiting citizenship rights in the interest of federal policy. In no sense is Mr. Shyne's disability a federal response for an offense against the United States. Instead, Art. I, § 10(B) disqualifies felons from elective office because their prior criminal conduct is offensive to Louisiana's notion of the public trust which is invested in elected officials. Federal law does not prevent Louisiana from placing such disabilities on a federal felon, nor removing them by the exercise of a gubernatorial pardon.[3] The temporary 15-year withdrawal of Mr. Shyne's citizenship right in *1286 this case is therefore solely a product of Louisiana. Nevertheless, the trial court's ruling holds that the Louisiana executive pardon power may not restore that right. While making that determination, the trial court's scholarly reasoned opinion properly recognized the lack of a federal interest in this case, stating: "[I]t makes little sense to cede decisions as to the rights Louisiana will afford to Louisiana citizens to the executive branch of the federal government or another state, or even worse, to a potentate of a foreign nation."
Examination of the pardon power in Louisiana jurisprudence has drawn from an understanding of the pardon power of our federal constitution and common law. According to our Supreme Court, the scope of Louisiana's pardon power may be gauged by "analysis of the nature and extent of the pardon power of the monarchs of England (the source of the executive pardon power in this country), the proceedings of our federal constitution, the Federalist and other constitutional papers, and the early constitutions of the states of this country, including our own Constitution of 1812." State v. United Bonding Ins. Co. of Indianapolis, Ind., 244 La. 716, 722, 154 So. 2d 374 (1963), see also citations to authorities therein; State v. Lee, 171 La. 744, 132 So. 219 (1931); Schick v. Reed, 419 U.S. 256, 95 S. Ct. 379, 42 L. Ed. 2d 430 (1974). The power to pardon is an executive prerogative of mercy. United States v. Noonan, 906 F.2d 952 (3d Cir.1990).
In Louisiana's previous constitutions, the language "of offenses against the state" was only used in conjunction with the enumeration of the governor's power to grant reprieves. The governor was otherwise given the power generally to "grant pardons." See La. Const.1921, art. V, § 10. From this history, it is less than clear that the language regarding offenses against the state in Art. IV, § 5 was intended to be dispositive of the question in this case. The phrase, of course, reflects the governor's lack of power to alter a federal conviction and sentence by abolishing any part of the corporal punishment or fines imposed by the federal government. Yet, nothing else should be read into that phrase implicitly, when the question shifts from federal punishment of the offense against the United States to the collateral consequences under Louisiana law.[4]
A more difficult question concerns whether a pardon's purpose is only to end the retribution and punishment against the convicted criminal or whether it may extend broadly to also restore all civil disabilities denied to him by the state. Historically, the "mercy" extended by the king, president or governor was clearly understood to end the punishment. Subsequently, other collateral consequences emerged from legislative acts placing civil disabilities on a felon, not as punishment for crime but to promote policies of protection for the public.[5] This creates the question, *1287 which is present under Art. IV, § 5(E)(1): May the pardon power, which has been historically expressed in general terms in our constitutions, be interpreted to restore those rights of citizenship?[6]
In the 1974 Constitution, the pardon power was expressed as follows:
The governor . . . upon favorable recommendation of the Board of Pardons, may commute sentences, pardon those convicted of offenses against the state, and remit fines and forfeitures imposed for such offenses.
La. Const. art. IV, § 5. This enumeration arguably only addressed the direct criminal consequences of a conviction since it does not contain language expressly lifting collateral civil disabilities which the legislature may choose to place on a felon. For some of those disabilities, a pardon was unnecessary under the original scheme of the 1974 Constitution because the restoration of the "full rights of citizenship" occurred automatically "upon termination of state and federal supervision following conviction of any offense." La. Const. art. I, § 20. The phrase "full rights of citizenship" addressed by Art. I, § 20, has been interpreted as limited to only the customary rights to vote, work and hold office. State v. Selmon, 343 So. 2d 720 (La.1977).
The scope of the pardon power in the 1974 Constitution has never been challenged concerning the pardon's effect on the restoration of other collateral consequences or disabilities unrelated to the citizenship rights addressed by Art. I, § 20. Yet, because its enumeration of the pardon power is in general terms and does not expressly direct its force for the restoration of all civil disabilities imposed by legislation, such as certain state licensing requirements, the breadth of the pardon power under Art. IV, § 5(E)(1) remains unspecified, subject to future interpretation by the courts. Clearly, the historical and common understanding of pardon, to free the convicted party from sentence and end the sovereign's retribution, differs greatly from a pardon of the civil disabilities of a felon which the legislature may choose, not as retribution, but in support of important public policy.
From this review, we conclude that Art. IV, § 5(E)(1)'s general expression of the pardon does not prevail over the more specific application of a governor's pardon which was authorized by the 1998 Amendment. Ocean Energy, Inc. v. Plaquemines Parish Gov't, supra. The original intent and meaning for Art. IV, § 5(E)(1)'s pardon power did not even address the right to hold elective office because that right was expressly restored elsewhere in the 1974 Constitution on an equal basis for state and federal felons. Thus, it was only when the 1998 Amendment placed its disqualification on felons, that the people simultaneously expressed a specific and independent constitutional pardon power for the governor's executive discretion.
*1288 Turning again to the language of Art. I, § 10(B), the person convicted under the laws of the United States as a felon who "has . . . been pardoned either by the governor of this state or by" the President of the United States is no longer disqualified to be a candidate for public office. The literal language makes no distinction requiring a gubernatorial pardon for the felon convicted under state law and a presidential pardon for a federal felon like Mr. Shyne. The Governor of Louisiana is given the power to pardon a party convicted in either jurisdiction. This would not lead to a result in conflict with federal law as we have discussed. With promotion of Louisiana's policy for trustworthy elected officials being the goal of this disqualification provision, our Governor is entrusted with the power to consider the party's character and past conduct, and to grant him an earlier time for seeking public office before the expiration of the 15-year disqualification period. This result would promote a fair review of equal measure for both state and federal felons by the party with executive power whose public duty is directly for the oversight of the policy of this state. In this case, Governor Foster, on recommendation of the Board of Pardons, made that determination regarding Mr. Shyne.
On the other hand, the provision's acknowledgment of the power of the presidential pardon does not cast doubt on the propriety of a governor's pardon of a federal felon. That acknowledgment principally recognizes that a president may have intervened with a pardon to free the convicted party from federal incarceration. Such pardon under the Supremacy Clause of the United States Constitution may prevent a state from further imposing this sanction on the party. Thus, Art. I, § 10(B)'s acknowledgment of the effect of the presidential pardon for federal crimes also accepts the presidential judgment concerning the individual and avoids any challenge to our citizenship disqualifications under those circumstances involving a presidential pardon.
Conclusion
Our constitutional review begins and ends with the language of the 1998 Amendment itself. When the Amendment placed the public office disqualification upon a Louisiana citizen, it simultaneously gave the governor a pardon power for its removal. Nothing in the federal law prevents a governor from restoring the rights of citizenship which his state's law has withdrawn from a federally convicted felon. Our Louisiana governor made that choice in this case, and we hold Mr. Shyne is no longer disqualified to seek elective office. Plaintiff's suit is dismissed.
Costs of appeal are assessed to appellee.
REVERSED AND RENDERED.
PEATROSS, J., concurs with written reasons.
DREW, J., dissents with written reasons assigned by J. MOORE and with additional written reasons.
MOORE, J., dissents with written reasons.
LOLLEY, J., dissents for the written reasons assigned by J. MOORE.
MOORE, J., dissents with written reasons.
I respectfully dissent. I cannot subscribe to the majority's strained reading of La. Const. Art. 1, § 10(B), as amended in 1998, to reach the conclusion that Joe Shyne is qualified to run for public office. Although Mr. Shyne has not seriously pressed this argument, I will concede that the section is not a model of artful draftsmanship; the use of "jurisdiction" instead of "place where the person was convicted *1289 and sentenced" would have obviated this dispute.
Nonetheless, the majority's discussion is littered with fallacies. It is a fundamental principle that all constitutional provisions must be read in pari materia. Caddo-Shreveport Sales & Use Tax Comm'n v. Office of Motor Vehicles, 97-2233 (La.4/14/98), 710 So. 2d 776; Chehardy v. Democratic Executive Comm., 259 La. 45, 249 So. 2d 196 (1971). Article 4, § 5(E)(1) does not give the governor of Louisiana any authority to pardon federal offenses; it limits the governor's pardon power to "offenses against the state." When the voters approved the 1998 amendment to Art. 1, § 10, they added Subsection (B), "Disqualification." Any fair reading of the amendment would show an intent to limit, not to expand, the governor's pardon power. Nowhere does Art. 1, § 10(B) give the governor the right to grant full restoration of citizenship rights. The majority gives the governor boundless pardon power. Moreover, the United States constitution grants the president of the United States the power to "grant Reprieves and Pardons for Offenses against the United States." Art. II, § 2. On the basis of supremacy, neither the state constitution nor this court can derogate from the president's authority.
The majority's opinion also makes factual or legal assertions that are dubious at best. For example, the majority states that the "trial court's ruling effectively conceded that the literal wording of the 1998 Amendment allows the governor's pardon to end Mr. Shyne's disqualification from office." Absolutely nothing in the district court's opinion states this, by implication, concession, or any other way. Then, in the effort to downplay Art. 4, § 5(E)(1), the majority states that governor's pardon power "was expressly restored elsewhere in the 1974 Constitution equally for state and federal felons." (Emphasis in original.) There is no such express restoration anywhere in the constitution.
Beyond these particular faults, the majority's opinion follows the general contours of La. Atty. Gen. Op. 79-787 (3/13/80), which had advised that the denial of civil rights because of a felony conviction was a creation of Louisiana law, ergo those rights could be reinstated by Louisiana law regardless of whether the convicting jurisdiction had pardoned the offender. The district court, however, demolished this argument:
While not cited by Mr. Shyne's counsel, the Court's research reveals a series of older opinions in which the Louisiana Attorney General opines that the governor enjoys the authority to pardon federal offenses. Principal among these opinions is Opinion No. 79-787 issued by the Attorney General on March 13, 1980. The Attorney General analyzed the issue of the authority of the governor to pardon federal offenses by first noting that there was no significant difference in the pardon powers under the 1921 Louisiana Constitution and the 1974 Constitution and that "as a matter of custom and practice of longstanding in Louisiana, the governor has granted pardons to federal offenders, not pardoning the crime but removing the civil disabilities arising under Louisiana Law because of the crime." The Attorney General stated that there was no Louisiana jurisprudence on point, and relied upon general authority from other states. Those authorities apparently acknowledge that the chief executive of a state cannot fully pardon a federal offense, but assert that the executive can "grant executive clemency, effectively restoring rights of citizenship in the state to one who has been disqualified for public office or has lost *1290 other civil rights, such as a right to vote, to act as juror, to testify as a witness, etc., as a result of a conviction of crime in a federal court or in the courts of another state for which no pardon has been granted." The Attorney General continued that "It stands to reason that if Louisiana may legally withdraw certain Louisiana rights or privileges because of a person being convicted of a felony under the laws of a foreign government, another state or under federal statute, that the chief executive of Louisiana has the legal power and authority to reinstate those state rights or privileges by the granting of a pardon." The Attorney General noted that in the previous fifteen years (prior to 1980), at least eighty-seven pardons had been granted by Louisiana governors on federal offenses and concluded that:
We believe the time-honored practice under the former constitution and the new constitution has resulted in a contemporaneous construction of the meaning of "offenses against the state" to include federal and extraterritorial convictions.
In other words, prior governors have construed the provisions of the Louisiana Constitutions to the effect that convictions in federal and extraterritorial forums have resulted in offenses against the state even though the conviction is not for a violation of Louisiana law. This construction is logical inasmuch as Louisiana has inflicted punishment for such offenses by the withdrawal of certain Louisiana rights and privileges. * * *
In conclusion, when an individual commits a federal or foreign felony, certain Louisiana state rights and privileges are forfeited. It is within the power of the Governor of Louisiana to grant pardons for federal and foreign felonies, however, the effect of such pardons is only to mitigate any Louisiana collateral consequences.
The Attorney General acknowledged the Louisiana Supreme Court decision in Baxter,[7] but chose to disregard it, stating that it was "dictum" when the court stated that only the President could pardon a federal offense, as there was no pardon issued at all in that case. See also La. Atty. Gen. Ops. 80-257 and 83-558. The court notes that the 2002 Attorney General opinion addressed to Senator Malone, which renders an opinion that differs from the prior opinions, does not mention, distinguish, withdraw or overrule any of the prior Attorney General opinions were issued long before the voters amended the Louisiana Constitution in 1998.
Later, the district court criticized "inconsistent Attorney General opinions" that "create problems that eventually wind up in court." The same critique could be applied to the majority's adoption of substantially the same discredited theory.
I would affirm the judgment and the sound rationale of the district court.
DREW, J., dissenting for the reasons assigned by Judge Moore, and with additional reasons.
The trial court's opinion and my brother judge's dissent express the law admirably, and I fully adopt their reasoning, asking leave to express these further comments.
The majority opinion is admittedly erudite, yet seems to be straining at gnats (actually, mosquitoes in Louisiana) to reach this result. The only authorities not cited were Plato, Planiol, Socrates, and Will Rogers. The majority opinion "out-lawyers" *1291 itself into misapplying the will of the people, as expressed by the law of Louisiana. Reasonable people can have differences of opinion, but it seems the majority has over-complicated this dispute.
My personal philosophy is that if the people want to elect Donald Duck, they should be allowed to do so. The problem here is that my personal philosophy is in conflict with the law as I read it. Under the facts of this case, Mr. Shyne is clearly precluded from running for office until he secures a presidential (federal) pardon for this federal crime, or until the 15 years expire.
I respectfully dissent.
PEATROSS, J., concurs.
I agree with the majority that a literal reading of Article I, Section 10(B)(1) allows either the President of the United States or the Governor of Louisiana to grant a pardon ending the disqualification affecting a person convicted of a federal crime in Louisiana that also would be a felony under Louisiana state law. I concur to add alternative reasons for concluding that Article IV, Section 5(E)(1) does not limit the governor's power to pardon in this case.
Our Supreme Court has indicated in State v. Adams, 355 So. 2d 917 (La.1978) and in State v. Lee, 171 La. 744, 132 So. 219 (1931), that a full pardon by the governor restores the "original status" of the pardoned individual, i.e. a "status of innocence" of crime. There can be little doubt that such a "gold seal" pardon restores all rights of citizenship because, logically, an individual restored to a "status of innocence" must have all rights of citizenship. Furthermore, logic also dictates that, if the constitution gives the governor such broad power to pardon, the governor can exercise that power to restore any subset of the rights restored by a full pardon.
Article IV, Section 5(E)(1), however, arguably restricts the broad pardoning power to "those convicted of offenses against the state." For the following reasons, I do not read this language as restricting the governor's broad pardoning power to pardoning only convictions under Louisiana state law, but read this language as authorizing the governor to pardon any offenses against the state, including a crime under the law of the United States that would be a felony in Louisiana. I agree with the statement in footnote 4 of the majority opinion that, when a Louisiana official commits an act of public bribery in this state, Louisiana has suffered the offense regardless of the fact that the official is convicted under federal law. Thus, I conclude that Article IV, Section 5(E)(1) allowed the governor in this case to remove Joe Shyne's disqualification to seek elective office.
The trial court read these provisions narrowly as a restriction on the governor's power to restore civil rights to Louisiana citizens who had such rights taken away by Louisiana law because of a conviction in Louisiana of a federal crime that also was a felony under Louisiana state law. Aside from the fact, recognized by the trial court, that restricting such power to the executive branch of the federal government "makes little sense," this narrow reading goes against the principle that laws in derogation of common law or common right should be strictly interpreted. Monteville v. Terrebonne Parish Consolidated Government, 567 So. 2d 1097 (La. 1990). The right to seek elective office is such a right; thus, the governor's power to restore the right should be read broadly. For the same reason the disqualification added by the 1998 amendment to Article I, Section 10 should be read narrowly.
Furthermore, even if "offenses against the state" were read narrowly to include *1292 only convictions under Louisiana state law, it is doubtful that such a reading would limit the governor's pardoning power in this case. Such a narrow reading would simply make Article IV, Section 5 inapplicable; it would neither permit, nor prohibit the pardon given in this case. Therefore, if another source of law gave such power, the pardon would be effective. Article IV, Section 5(K) makes clear that the powers mentioned in Section 5 should not be read as restricting executive power; instead, the governor shall have other powers "authorized by this constitution or provided by law." A good argument can be made that another source of law gives the governor the power exercised herein.
La. C.C. art. 1 states that the sources of law are legislation and custom. La. C.C. art. 3 states that custom results from practice "repeated for a long time and generally accepted as having the force of law." Custom may not abrogate legislation, but if, arguendo, no legislative prohibition exists that addresses the pardon given herein, the governor could acquire that power through customary practice accepted as being valid.
The requirement of a practice repeated for a long time arguably is shown in Attorney General Opinion 79-787 indicating that the governor has granted pardons to federal offenders "as a matter of custom and practice of longstanding in Louisiana," and indicating that in the 15 years prior to that opinion, at least 87 pardons were granted by Louisiana governors for federal offenses. Obviously, the governor, the Board of Pardons, the pardoned offender, and the attorney general's office all understood these pardons to be effective in restoring civil rights; thus, the second requirement of La. C.C. art. 3 also arguably is met. I note that this understanding is in line with the majority opinion's quote from Am.Jur.2d.
For the foregoing reasons, I respectfully concur in the reversal.
NOTES
[1] See, Malone v. Tubbs, 36,816 (La.App.2d Cir.9/6/02), 825 So. 2d 585, writs denied, 02-2322 (La.9/11/02), 824 So. 2d 1164, 02-2448 (La.10/1/02), 826 So. 2d 1110.
[2] An original plaintiff in this case, Max T. Malone, was dismissed from the action, and Mr. Shyne's opponent in the upcoming election, James Edward Green, is the appellee.
[3] This understanding is seen in other state interpretations of the gubernatorial pardon power for the restoration of state citizenship rights to federally convicted felons. As described in 59 Am.Jur.2d Pardon and Parole § 24:
The chief executive of a state has no power to grant a pardon for an offense against the United States for which a conviction has been had in the federal court, in the sense of taking away any part of the corporal punishment inflicted upon the offender. However, in the exercise of the pardoning power, the chief executive of a state may grant executive clemency, effectively restoring rights of citizenship in the state to one who has been disqualified for public office or has lost other civil rights, such as a right to vote, to act as juror, to testify as a witness, and so forth, as a result of a conviction of crime in a federal court or in the courts of another state for which no pardon has been granted. This remains applicable to allow a state official to restore citizenship notwithstanding that the person in question has not been pardoned or restored to the rights of citizenship by the President of the United States. (Citations omitted.)
[4] Significantly, when a Louisiana official commits an act of public bribery in this state, that crime is proscribed under our criminal statute (La. R.S. 14:118) and regardless of the fact that the official is convicted under federal law, the State of Louisiana has suffered the offense.
[5] See, e.g., various Louisiana licensing statutes restricting felons, including La. R.S. 4:150 (horse owners, trainers, jockeys and riders); La. R.S. 37:921 (registered nurses); La. R.S. 37:1437 (real estate sales); La. R.S. 37:2950 (professions and occupations); La. R.S. 37:3219 (radiologic technologists); La. R.S. 37:3396 (real estate appraisers); La. R.S. 37:3469 (wholesale drug distribution); La. R.S. 40:1235.2 (ambulance providers); La. R.S. 47:818.41 (gasoline and diesel fuel); La. R.S. 47:7005 (gaming equipment); and former La. R.S. 27:76 (gaming).
[6] We note that certain federal cases have dealt with this question regarding the presidential pardon. The pardon has been held to apply to alleviate punishment for contempt of court. Ex parte Grossman, 267 U.S. 87, 45 S. Ct. 332, 69 L. Ed. 527 (1925). It does not extend to require the expungement of criminal records. United States v. Noonan, supra. Likewise, a presidential pardon has been construed as not preventing the fact of the conviction from being used in consideration of federal regulatory licenses. Hirschberg v. Commodity Futures Trading Comm'n, supra. In Bjerkan v. United States, supra., the court cited Burdick v. United States, 236 U.S. 79, 35 S. Ct. 267, 59 L. Ed. 476 (1915), for its conclusion that "[a] pardon does not `blot out guilt' nor does it restore the offender to a state of innocence in the eye of the law . . . ."
[7] State v. Baxter, 357 So. 2d 271 (La.1978). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591591/ | 686 N.W.2d 58 (2004)
12 Neb.App. 741
Shae D. GARTNER, appellee,
v.
Jena R. HUME, appellant.
No. A-03-620.
Court of Appeals of Nebraska.
August 24, 2004.
*64 Philip M. Kelly, of Douglas, Kelly, Ostdiek, Bartels & Neilan, P.C., Scottsbluff, for appellant.
Kimberly J. Quandt, of Sonntag, Goodwin & Quandt, P.C., Sidney, for appellee.
CARLSON, MOORE, and CASSEL, Judges.
CASSEL, Judge.
I. INTRODUCTION
In this proceeding to modify a paternity judgment, Jena R. Hume appeals from the district court's order denying permission to remove the child to Colorado and granting an increase in child support. Because we conclude that the trial court did not abuse its discretion except in determining the mandatory retirement deduction and in granting only a prospective increase in child support, we affirm as modified.
II. BACKGROUND
1. INITIAL ACTION
On October 7, 1999, Shae D. Gartner filed this paternity action against Jena, asserting that Shae was the father of Triston G. Gartner-Hume, who was born on September 30, 1999. Shae also filed a motion for paternity testing. Court-ordered paternity testing confirmed Shae to be Triston's father. On July 3, 2000, the parties filed a stipulation regarding child custody, visitation, and child support.
On July 25, 2000, the trial court entered an order pursuant to the parties' stipulation. The court awarded joint legal custody of Triston to both parties and primary physical custody to Jena, subject to Shae's reasonable visitation rights including, but not limited to, every other weekend, a 4-hour weeknight visitation once each week, alternating holidays, Triston's birthday, and summertime visitation. The court granted both parties the "right of first refusal to have [Triston] in his or her care when the other party requires a day care provider." The court ordered Shae to pay $350 per month in child support and to maintain health insurance for Triston. Each party was ordered to pay half of Triston's uncovered medical expenses, and the parties were ordered to take turns claiming Triston as a dependent for income tax purposes.
2. PREVIOUS MODIFICATION PROCEEDING
On June 14, 2001, Shae filed an application for modification of physical custody. On February 26, 2002, Jena filed her amended response to Shae's motion, together with a counterclaim for modification. Jena alleged that because of her employment with the Colorado Department of Corrections, the State of Colorado had offered her an opportunity to pursue her degree as a registered nurse; that Jena would have to move to Colorado to *65 continue that employment; that she was engaged to a man also employed by the Colorado Department of Corrections and planned to live in Colorado upon her marriage; that it was in Triston's best interests to move to Colorado with Jena; and that upon Jena's move to Colorado, Shae would have reasonable visitation with Triston. Jena prayed for permission to relocate with Triston to Colorado. The court conducted a hearing on June 19.
On August 21, 2002, the trial court entered an order denying Shae's motion to modify custody, granting Jena's request to move Triston to Fort Lyon, Colorado, and providing for visitation by Shae. The order further provided:
In the event that [Jena] does not complete her intended marriage to her co-worker by October 1, 2002, she is required to move [Triston] back to Sidney, Nebraska.
[Jena] is ordered to maintain employment with the Department of Corrections in Ft. Lyons [sic] upon her move from Nebraska. Failure to do so will result in [Triston's] being returned to Sidney, Nebraska.
[Jena] is ordered to pursue her R.N. degree in accordance with her testimony.
We note that insofar as the trial court's August 21, 2002, order purported to require that Triston be returned to Nebraska if Jena did not comply with certain requirements regarding her education, employment, and marital status, that order constituted a void conditional order. If a judgment looks to the future in an attempt to judge the unknown, it is a conditional judgment. A conditional judgment is wholly void because it does not "perform in praesenti" and leaves to speculation and conjecture what its final effect may be. Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002). However, Jena never attempted to utilize the order and did not remove Triston to Colorado under its provisions.
3. CURRENT PROCEEDING
On September 11, 2002, Jena filed a motion to modify child support and to modify the court's order concerning the relocation of Triston. Jena alleged that a material change in circumstances had occurred since the July 25, 2000, order in that the incomes of both parties had changed significantly, and she prayed that the court modify the child support pursuant to the Nebraska Child Support Guidelines (Guidelines) to reflect the parties' incomes. Jena also requested that Shae be ordered to pay for both daycare and medical expenses pursuant to the Guidelines. Jena further alleged that after the trial on her previous request to relocate Triston, she was advised the nursing program had been canceled by the school in Fort Lyon; that she had not moved to Colorado as planned; and that she had postponed her marriage because she had not moved to Fort Lyon. Jena requested leave to move to Sterling, Colorado, where she worked for the Colorado Department of Corrections. Jena alleged that she would be able to pursue her nursing degree at a school in Fort Morgan, Colorado. She requested that the court modify its August 21, 2002, order to allow her to move to Colorado without specifying the town in which she would live and to remove the requirements regarding her employment with the Colorado Department of Corrections. Jena also prayed for an order requiring the parties to share responsibility for transporting Triston between Nebraska and Colorado for visitation.
In Shae's answer, he alleged that Jena's motion was frivolous and that based on the unclean hands doctrine, Jena should be estopped from requesting relief. Shae requested an order requiring that Triston remain in Nebraska.
*66 On April 29, 2003, the court conducted a trial on Jena's motion to remove Triston to Sterling and on her motion for modification of child support.
(a) Jena's Testimony
Jena testified at length. Jena was 27 years old at the time of trial. She had been a licensed practical nurse (LPN) for 6 years and lived in Sidney, Nebraska. At the time of the original order, she worked as an LPN at Beverly Healthcare in Sidney, which work required daycare for Triston. At the time of trial, she worked for the Colorado Department of Corrections in Sterling and wanted to return to school to become a registered nurse (RN). Jena never implemented the move to Fort Lyon because the community college she had planned to enroll at temporarily canceled its nursing program. The college informed Jena of the cancellation during the latter part of July 2002 (prior to the trial court's August 21 order). Jena refrained from marrying her fiance because she could not move to Colorado after the nursing program had been canceled and because she did not want to live apart from him after getting married. Jena never obtained employment in Fort Lyon by the Colorado Department of Corrections.
Jena requested specific permission to move to Sterling, rather than generally to the State of Colorado. She claimed that she intended to continue her employment with the Colorado Department of Corrections. She expressed the intention to remain in Sidney with Triston, if the court would not approve her request to move to Sterling. Sterling is approximately 40 miles from Sidney. Commuting from her home in Sidney to her work in Sterling required approximately 45 minutes.
Jena's fiance lives and works in Fort Lyon. The Colorado Department of Corrections, where Jena's fiance works, had placed all transfers on hold for "a couple of months" due to budget constraints. If Jena's fiance were not transferred to Sterling, Jena probably would not marry him; at least at the time of trial, she disclaimed any firm plans to marry.
At the time of trial, Jena, Triston, and Jena's daughter from a previous relationship were living with Gwen Hume, Jena's mother, and with Gwen's boyfriend. Jena had moved three times since Triston's birth.
Jena asserted that she and Shae had always worked well together to accomplish visitation and to accommodate their respective schedules. She intended for that cooperation to continue if she was allowed to move to Sterling with Triston. With that in mind, Jena offered that on Wednesday evenings, she would bring Triston to Sidney to visit Shae, and that for weekend visits, she would take Triston to Sidney, arrange for Shae to pick Triston up in Sterling, or meet Shae halfway between Sterling and Sidney. She claimed that Triston is accustomed to traveling between Sidney and Sterling on a daily basis. For that reason, she asserted that transporting him for visitation would not be a problem.
All of Jena's family members, except her sister, lived in Sidney, and all of Shae's family members lived there. Jena maintained that if she were to move, Shae and his family would have as much time with Triston as before. Jena acknowledged that Shae and Triston have a close relationship. She agreed that Triston had bonded with his relatives in Sidney and that those relatives all have maintained active roles in Triston's life.
Jena had signed a contract to purchase a house in Sterling, subject to obtaining permission to move. The house has two stories, a finished basement, four bedrooms, and 1 1/2 bathrooms. There is a large *67 play area in the backyard, and a park is located two blocks away. Jena had been preapproved for a loan at a 6- or 8-percent interest rate to purchase the house. The purchase price of the house was to be $155,000, and Jena's monthly payments were to be $1,189.
While Jena was at work, Natasha Wilcox provided daycare for Triston in Sterling and would continue to do so in the event that Jena moved to Sterling. Wilcox had provided daycare since September 2002, and Jena opined that Wilcox is an "excellent" daycare provider. Wilcox is licensed to provide daycare by the Colorado Department of Social Services.
If Jena moved to Sterling, she would live approximately 5 miles from Wilcox and 1 or 2 miles from work. Moving to Sterling would reduce the time she and Triston spent traveling each day from 90 minutes to 10 or 20 minutes. Jena claimed to feel more comfortable having Triston at daycare in the city in which she worked rather than leaving him in daycare in Sidney.
Jena named two Sidney daycare providers that she had contacted "before school started" who did not have any openings. If Triston attended daycare in Sidney, Shae could take him to daycare in the morning after Jena left for work and could easily pick up Triston from daycare after work and care for him until Jena's 12-hour workday ended.
If Jena relocated to Sterling, Jena's daughter and Triston would attend an elementary school located approximately five blocks from the house Jena intended to purchase. The school operates a preschool program in which Triston could participate, and Jena stated that she had taken both children to the school to meet the principal and teachers. Jena opined that the school is "excellent" and related that the children of some of her acquaintances and colleagues attend that school.
Jena claimed that Sterling offers more activities for children than does Sidney and that she had contacted people in Sterling regarding T-ball, karate, gymnastics, and swimming. Sterling also has a community center. Jena considered Sterling to be a safe place to rear children.
Jena claimed that facilities exist in Sterling to accommodate Triston's asthma condition and that the Sterling hospital is larger than the Sidney hospital. She related that she is familiar with the doctors in Sterling and that Triston could obtain the same level of medical care in Sterling as he receives in Sidney.
Jena's 2000 tax return reflected that Jena's adjusted gross income, including wages from Beverly Healthcare and profits from her nursing care business, was $15,452. Jena's 2000 tax return also shows that Triston attended daycare in Sidney. According to Jena's 2001 tax return, Triston attended the same daycare in Sidney and Jena's adjusted gross income from working for the Colorado Department of Corrections and from her nursing care business totaled $30,545. Jena earned $39,342 in 2002, which reflected shift differential and overtime income. Her employment also provides retirement and health insurance benefits for herself and dental insurance for her children.
Jena generally worked the day shift from 7 a.m. to 3 p.m. She stated that if she moved to Sterling, she would work two 12-hour shifts each week, 6 a.m. to 6 p.m., and two 8-hour shifts, 6 a.m. to 2 p.m., receiving $16.25 per hour. She would ask her employer not to schedule her for evening hours, and she would probably work 24 hours during the week and work on the weekends when Triston was visiting Shae. If she were to move, Jena probably would not work overtime because of nursing school. The Colorado Department of *68 Corrections would provide a flexible schedule to accommodate her schooling. Her employer notifies Jena on a monthly basis of the hours she will work for the entire month. She does not know which days she will be working from month to month.
Jena had contacted Morgan Community College in Fort Morgan about a nursing program there. Sterling is approximately 30 minutes from Fort Morgan. Jena stated that Morgan Community College offers a part-time nursing program, consisting of half days from 9 a.m. to 1 p.m. on Mondays, Wednesdays, and Fridays, but that the schedule is subject to change each year. If she attended the part-time program at Morgan Community College, she would begin in September 2003 and obtain her degree in approximately 2 years. Jena claimed to have fulfilled all the requirements for admission to the nursing program except for obtaining "Colorado IV certification." Jena testified that she had not applied to Morgan Community College because her employer would not pay her tuition until she became a Colorado resident. Jena testified that she had heard that Morgan Community College might offer a satellite nursing program in Sterling in the future.
Jena claimed that if she became a Colorado resident, her employer would pay for her tuition, fees, and books, as long as she maintained a "B" average. Based on her past schooling, she expected no difficulty in maintaining the required average. Her employer would schedule her work to accommodate her classes. The need for RN's at the Colorado Department of Corrections in Sterling is very high, because there are unfilled RN positions. Once Jena has her nursing degree, she could be employed by the Colorado Department of Corrections as an RN and earn $4,600 per month, rather than the approximately $2,816 she earns each month as an LPN. There are other RN positions available at the Sterling hospital, and she did not want to be limited by the court to working at the Colorado Department of Corrections.
Sidney does not have a nursing program, and the closest Nebraska program is in Scottsbluff, about 75 miles from Sidney. If Jena attended the nursing program in Scottsbluff, she would have to quit her job with the Colorado Department of Corrections; would have to pay for her own books, tuition, and fees; and would be without health insurance and other benefits.
Jena believed that being an RN would benefit her children because she would have a larger income to pay for "material things, fun things, ... programs for them to join, [and] vacations."
(b) Gwen's Testimony
Gwen, Jena's mother, testified that Jena was living with Gwen temporarily while Jena recovered from injuries sustained in a car accident. At the time of trial, Gwen had been an RN for 3 years and was working as such for the Colorado Department of Corrections in Sterling, earning $25.50 per hour. Gwen claimed that she is familiar with the department's policies and procedures regarding employee educational benefits. She asserted that the Colorado Department of Corrections would pay for the further nursing education of interested LPN's on staff because there is a shortage of RN's. Gwen was formerly employed as an RN at the hospital in Sidney, making $16.75 per hour, and 6 weeks prior to trial, she had been approached about returning to the Sidney hospital to work for $18.35 per hour. She stated that LPN's at the Sidney hospital earned between $14 and $16 per hour, depending on their experience.
*69 (c) Shae's Testimony
Shae also testified at length. He claimed to have a "[g]reat" relationship with Triston and stated that Triston was "a lot of fun." When Triston visited Shae, Triston would also see Shae's parents, grandmother, and other relatives who live nearby. Shae stated that either his parents or relatives would come to his home or he would take Triston to see them and that Triston sees them all as much as possible. Triston also sees relatives around town and talks about his cousins. Of Shae's family, Triston most frequently sees Shae's parents. Triston had a growing relationship with Shae's live-in girl friend. Shae stated that his girl friend is a loving adult figure who loves and cares for Triston. Shae and his girl friend had talked about marrying in the future but wanted to defray some financial debts first. Shae and his girl friend live in a quiet neighborhood in a three-bedroom house located approximately one block from his parents' house and 2 1/2 blocks from Gwen's house.
Shae disputed Jena's claim that Sterling has more benefits for Triston than does Sidney. Shae claimed that in comparison to Sterling, Sidney lacks only an indoor swimming pool. Sidney has activities for children, programs at the community center, and good schooling. Sidney has pre-schools, and when Triston starts school, Shae wants to be able to attend Triston's school activities.
Shae asserted that he and Jena got along with one another in general and with regard to visitation issues. For a time, Shae worked 4 days each week in Las Vegas, Nevada, returning to Sidney each Friday morning and leaving on Sunday to return to work. Jena and Shae adjusted the visitation schedule to accommodate Shae's work schedule. Shae admitted that Jena had always been committed to working out a visitation schedule, and Shae hoped that she would do the same if she moved to Sterling.
The original order required that Shae have visitation one weeknight each week and every other weekend. Shae testified that since the original order, Jena provided more visitation than the order required. Shae maintained that it was important to have Triston in his care as much as possible and to have the option to care for Triston anytime Jena was working.
If Jena and Triston moved to Sterling, Shae maintained that while the visitation schedule would not change, he anticipated visitation problems due to bad weather, vehicle breakdowns, and "just running late." If Shae missed a visit with Triston due to bad weather or some other cause, Shae would expect Jena to accommodate him in making up the missed visit. If Jena moved, Shae would not be able to watch Triston on short notice as he had in the past. Although Shae thought it was "great" that Jena wanted to continue her education, he did not want to lose time with Triston. Jena was not certain what her schedule would be, and Shae claimed that it could conflict with visitation.
Shae had contacted a daycare provider in Sidney who had agreed to watch Triston. If Jena took Triston to a daycare provider in Sidney, Shae could pick up Triston and would enjoy doing so. Shae also has family members in Sidney who could watch Triston on occasion, including Shae's parents and grandmother.
Shae objected to Jena's moving Triston out of Nebraska because he did not believe it was in Triston's best interests. He stated that Triston has family, friends, and relatives in Sidney and that Triston had been in Sidney his entire life. Shae believed that considering the changes in Triston's residences and daycare providers, *70 Shae's house was the closest thing that Triston had resembling a stable home. Shae opined that if Triston did move to Colorado, moving to Sterling would be better for Triston than moving to Fort Lyon.
Shae is employed by the Union Pacific Railroad. According to Shae's tax returns, he earned $37,926 in 2000, $44,474 in 2001, and $42,189 in 2002. Shae testified that he earned overtime pay in 2000, 2001, and 2002 and that such overtime pay is reflected in his gross income. Shae expected to earn less income in 2003 than he did in 2002 because he would not work "on the road" as he did in 2002 and would not earn as much overtime pay. Shae's March 15, 2003, pay stub reflected a little less income than what he would be earning if he worked in Sidney rather than out of town.
As an employee of the railroad, Shae had deductions from his income for tier I and tier II railroad retirement benefits, but he did not have traditional Medicare and FICA deductions. He stated that he put 6 percent of his income toward his 401K plan. His employer deducts $48.25 per month from his paycheck for union dues. We summarize Shae's income in more detail in the analysis portion of this opinion.
Shae did not plan to continue taking out-of-town jobs because staying in Sidney would allow him to be at home in the evenings and on weekends and to therefore spend more time with Triston. Although Shae would be making less money by working in Sidney, he expressed a willingness to sacrifice the extra income in order to "make the best possible situation for Trist[o]n."
At the time of trial, Shae was paying Jena $350 per month for child support and was not paying for daycare expenses. Shae included Triston on Shae's medical and prescription plan and tried to split with Jena those expenses not covered by insurance. Because Shae no longer travels in his job, he claimed that it would be difficult for him to reimburse Jena for daycare expenses.
(d) Judicial Notice of Prior Hearing
At the close of evidence and at the request of both parties' attorneys, the trial court took judicial notice of a June 2002 hearing in this case, which appears in the record in the form of a supplemental bill of exceptions. To the extent that the testimony from that hearing has any bearing upon our review, we will address such testimony in the analysis section of this opinion.
4. TRIAL COURT'S ORDER
On May 5, 2003, the trial court entered an order increasing Shae's child support obligation to $489 per month commencing April 1, 2003. The order denied Jena's request to modify the payment of uncovered medical costs. Regarding Jena's motion to remove Triston from Nebraska, the trial court stated:
The threshold question is whether there is a material change of circumstances that has occurred since the last hearing. Truly, other than [Jena's] changing her mind, nothing has changed. She is working at the same place, living at the same place and doing the same things. There is no material change of circumstances since the last hearing. As there is no material change of circumstances, this Court has no authority to modify the order of the Court. As the Court is without authority to modify[,] the Motion to Allow the Removal of [Triston] from the State of Nebraska is dismissed.
III. ASSIGNMENTS OF ERROR
On appeal, Jena alleges that the district court abused its discretion (1) in denying Jena's motion to remove Triston from Nebraska, *71 (2) in not applying the modification of child support retroactively to the first day of the month following the filing date of the application for modification, (3) in calculating child support by deducting Shae's 401K contributions, (4) in determining the parties' monthly income, and (5) in denying Jena's request that Shae pay a share of daycare expenses.
IV. STANDARD OF REVIEW
Child custody determinations, and visitation determinations, are matters initially entrusted to the discretion of the trial judge, and although reviewed de novo on the record, the trial judge's determination will normally be affirmed absent an abuse of discretion. Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000). A judicial abuse of discretion requires that the reasons or rulings of a trial judge be clearly untenable insofar as they unfairly deprive a litigant of a substantial right and a just result. Id.
Modification of child support payments is entrusted to the trial court's discretion, and although, on appeal, the issue is reviewed de novo on the record, the decision of the trial court will be affirmed absent an abuse of discretion. Peter v. Peter, 262 Neb. 1017, 637 N.W.2d 865 (2002).
Interpretation of the Guidelines presents a question of law, regarding which an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. Gallner v. Hoffman, 264 Neb. 995, 653 N.W.2d 838 (2002).
V. ANALYSIS
1. REMOVAL OF TRISTON FROM NEBRASKA
Jena argues that the trial court incorrectly applied the "material change in circumstances test" to determine whether she could remove Triston from Nebraska. Brief for appellant at 14. We agree that the existence of a material change does not directly apply to an application for removal. However, the best interests of the child dictate the court's determination regarding either a modification of child custody or a proposed removal of children from the state. See Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 (2000).
In this instance, we believe the trial court used "material change of circumstances" as a shorthand phrase to address the application of one of the doctrines concerning finality of prior adjudications, such as res judicata, collateral estoppel, or law of the case. The circumstances of Jena's successive motions requesting leave to remove Triston to Colorado might have supported consideration of one or more of these principles. However, Shae did not raise them as affirmative defenses in his answer. See, e.g., DeCosta Sporting Goods, Inc. v. Kirkland, 210 Neb. 815, 316 N.W.2d 772 (1982) (res judicata is affirmative defense which must ordinarily be pleaded to be available). An appellate court may raise the issue of res judicata sua sponte, but infrequently elects to do so. See Dakota Title v. World-Wide Steel Sys., 238 Neb. 519, 471 N.W.2d 430 (1991). Without determining whether the trial court erred in considering the matter not raised by the pleadings, on our de novo review, we address the merits of Jena's request for removal of Triston from Nebraska under the factors set forth in Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999).
To prevail on a motion to remove a minor child, the custodial parent must first satisfy the court that he or she has a legitimate reason for leaving the state. After clearing that threshold, the custodial parent must next demonstrate *72 that it is in the child's best interests to continue living with him or her. Id.
(a) Legitimate Reason to Leave State
A reasonable expectation of improvement in the career or occupation of the custodial parent is a legitimate reason to relocate. See Gerber v. Gerber, 225 Neb. 611, 407 N.W.2d 497 (1987). The Nebraska Supreme Court has also recognized the pursuit of educational opportunities as a legitimate reason to move to another state. See Kalkowski v. Kalkowski, 258 Neb. 1035, 607 N.W.2d 517 (2000). Jena testified that moving to Colorado would allow her to obtain her nursing degree at the expense of her employer and in turn significantly increase her income and improve the quality of life for herself and her children. She testified that she would not be able to obtain her nursing degree while living in Sidney without quitting her job in Sterling and incurring significant expenses. On our de novo review, we determine that Jena established a legitimate reason to move to Colorado.
(b) Triston's Best Interests
The Nebraska Supreme Court has set forth three factors to be considered in determining whether removal to another jurisdiction is in a child's best interests: (1) each parent's motives for seeking or opposing the move, (2) the potential that the move holds for enhancing the quality of life for the child and the custodial parent, and (3) the impact such a move will have on contact between the child and the noncustodial parent, when viewed in the light of reasonable visitation arrangements. See Farnsworth v. Farnsworth, supra.
(i) Each Parent's Motives
Jena and Shae each have valid reasons for taking their respective positions on Triston's removal from Nebraska. Jena seeks to further her education and better her career, which we have determined is a legitimate motive. No evidence suggests that Shae resists removal in bad faith or for manipulative purposes. Shae's testimony demonstrates that he is primarily concerned with maintaining frequent and regular contact with Triston. This also constitutes a valid motive. Thus, it appears that the motives of each party are equally balanced.
(ii) Quality of Life
The factors to consider in determining the effect removal to another jurisdiction would have on the quality of life of the parent seeking removal and of the child include (1) the emotional, physical, and developmental needs of the child; (2) the child's opinion or preference as to where to live; (3) the extent to which the custodial parent's income or employment will be enhanced; (4) the degree to which housing or living conditions would be improved; (5) the existence of educational advantages; (6) the quality of the relationship between the child and each parent; (7) the strength of the child's ties to the present community and extended family there; (8) the likelihood that allowing or denying the move would antagonize hostilities between the two parties; and (9) the living conditions and employment opportunities for the custodial parent, because the best interests of the child are interwoven with the well-being of the custodial parent. See Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999). Depending on the circumstances of a particular case, any one factor or combination of factors may be variously weighted. Id. We consider only those factors relevant to the case at hand, in light of the evidence before us.
a. Enhancement of Income or Employment
Jena testified that once she obtained her nursing degree, she would be *73 eligible for an RN position with her employer and for a raise in pay from the approximately $2,816 per month she earns as an LPN to approximately $4,600 per month. On our de novo review, we conclude that Jena established at least a reasonable probability that enhanced income and employment would be realized by moving to Colorado.
b. Improvement of Housing or Living Conditions
At the time of trial, Jena, Triston, and Jena's daughter were residing with Gwen and Gwen's boyfriend. Jena adduced no evidence regarding the characteristics or quality of that residence. Jena testified that she had signed a contract to buy a four-bedroom house in Sterling, subject to receiving permission to move to Colorado. The house has a large play area in the backyard and is near a park and a school. Jena described the house in Sterling as a favorable environment for her children. Although we have no specific evidence to compare Jena's present residence with the Sterling house, at least an inference suggesting improvement arises, because most adults would prefer an independent housing arrangement rather than residing with their parents.
We also note that the purchase price of the house in Colorado is $155,000. Jena had obtained financing at an interest rate of 6 or 8 percent, and her monthly payments were to be $1,189. Jena testified that the nursing program in which she planned to enroll would take approximately 2 years to complete and that without a nursing degree, she earns approximately $2,816 per month. We cannot determine whether this obligation would strain Jena's finances or, if so, whether any financial difficulties would adversely affect Triston. On de novo review, we find little evidence that housing or living conditions would be significantly improved by moving to Sterling.
c. Educational Advantages
Jena testified that Sterling has more activities for children than does Sidney, but Shae testified that compared to Sterling, Sidney lacks only an indoor swimming pool. Jena testified that the school she had chosen in Sterling is excellent, and Shae testified that Sidney has "good schooling." However, the parties provided mere opinion testimony, with no objective evidence to compare the respective educational environments. Shae testified that if Triston attended school in Sterling, Shae would not be able to attend Triston's school activities. We conclude that Jena did not prove that Triston would gain any significant educational advantage by moving to Sterling.
d. Physical Needs
Jena testified that facilities exist in Sterling to accommodate Triston's asthma condition; however, she also testified that Triston would receive the same level of care that he currently receives in Sidney. Thus, with regard to Triston's physical needs, Jena did not establish that Sterling has any advantage over Sidney.
e. Quality of Relationship Between Triston and Parents
The effect of the removal to another jurisdiction must be evaluated in light of the child's relationship with each parent. See, McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002) (considering which parent had primary relationship with child); Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 (2000) (concluding that close relationship and extensive contacts between father and children weighed against long-distance relocation with mother).
*74 There was no specific testimony about Jena's relationship with Triston. However, the evidence does show that Jena is Triston's primary caretaker and that she was making arrangements for Triston's schooling and daycare with Triston's best interests in mind. Jena testified that after her initial motion for removal of Triston to another state, she had chosen to stay in Nebraska and maintain custody of Triston rather than move to Colorado and get married. She also testified that she would choose to stay in Nebraska with Triston if her second motion for removal was denied.
Shae testified that he had a good relationship with Triston, and Jena acknowledged that Shae had a close relationship with Triston. Shae stated that he strove to regularly and consistently exercise visitation, compensating for visits he missed while working out of town. Shae stated that he is concerned that a move to Colorado would reduce the time he spends with Triston. Shae expressed an interest in attending school activities when Triston started school.
This evidence establishes that both parents have a good relationship with Triston.
f. Ties to Sidney and Extended Family
Triston has extended family in Sidney on both parents' sides. At the time of trial, he and Jena were living with Gwen, Jena's mother, just a few blocks from Shae's house and Shae's parents' house. Shae testified that Triston would see his paternal grandparents and other relatives while visiting Shae and that Triston spoke of his cousins and encountered relatives around town. Jena testified that Triston had bonded with his relatives in Sidney and that they all had active roles in his life. Shae testified that because Jena has changed residences several times, he feels his house in Sydney is the only real home that Triston knows. The evidence shows that Triston has numerous ties to Sidney and to his extended family in that community.
The original judgment provided each parent with a "right of first refusal" to provide childcare when the other parent required a daycare provider. The testimony during the June 2002 hearing provides persuasive evidence that Shae extensively exercised that right. Although the parties disputed the exact number of occasions, Shae clearly used these opportunities to maintain extensive contact with Triston above and beyond a normal visitation schedule.
(iii) Effect of Removal on Contact Between Triston and Shae
This factor focuses on the ability of the noncustodial parent to maintain a meaningful parent-child relationship, and courts typically view this factor in light of the potential to establish and maintain a reasonable visitation schedule. Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999). Generally, a reasonable visitation schedule is one that provides a satisfactory basis for preserving and fostering a child's relationship with the noncustodial parent. Id. In determining reasonableness, our considerations include the frequency and the total number of days of visitation, the distance traveled and expense incurred, and the custodial parent's willingness to comply with a modified visitation schedule. See id.
Jena and Shae agree that they have always worked well together to accomplish visitation and to accommodate their respective schedules. Jena expressed her intent to maintain the visitation schedule already in place even if she and Triston moved to Sterling by taking Triston to Sidney, by allowing Shae to pick Triston up in Sterling, or by meeting Shae halfway between the two communities. Shae testified that he believed the distance *75 between Sterling and Sidney would reduce his time with Triston due to inclement weather, vehicle breakdowns, and lost opportunities to visit Triston on short notice or to watch him when daycare was unavailable. Jena testified that Triston is accustomed to traveling between Sidney and Sterling daily and that transporting him for visitation therefore would not be a problem. However, the evidence persuades us that the move to Sterling would effectively nullify, for Shae, the "right of first refusal" for childcare. Because Shae has utilized that provision to exercise visitation far beyond a standard visitation schedule, implementing a standard visitation arrangement after the proposed move would significantly diminish Shae's opportunity for visitation.
While Jena has demonstrated her willingness to work with Shae in scheduling visitation, we conclude that moving Triston to Sterling would significantly diminish Shae's ability to maintain the relationship that the parties agreed to foster with the "right of first refusal."
(iv) Best Interests Conclusion
In light of the strong ties that Triston has to Shae and other extended family in Sidney and the extensive visitation contemplated by the parties through the "right of first refusal," which Shae has utilized, we cannot conclude that the trial court abused its discretion in denying Jena's motion to move Triston to Sterling. While we may not have viewed the evidence initially in precisely the same way as did the trial court, we cannot conclude that the result is untenable or that the decision deprives Jena of a just result.
2. CHILD SUPPORT
(a) Averaging Shae's Monthly Income
Jena assigns that the trial court erred in using $3,190.09 as the figure for Shae's monthly income, rather than $3,518.42, a figure based on Shae's 2002 tax return. Shae receives two paychecks each month. Shae testified that his March 15, 2003, pay stub reflects what his income would be if he worked in Sidney rather than out of town and took fewer overtime hours, which was his plan. According to that pay stub, Shae's adjusted gross income for that pay period was $1,472.35 for 82 1/2 hours of work. Although the trial court did not specify how it arrived at $3,190.09 for Shae's monthly income, that figure can be derived by multiplying $1,472.35 by 26 (paychecks per year) and dividing by 12 (months in a year). See Guidelines, paragraph D. Thus, the trial court accepted Shae's testimony regarding his income and future overtime as the status of his income at the time of trial. The trial court's monthly income figure of $3,190.09 is supported by the evidence, and we conclude that the court did not abuse its discretion in using that figure.
(b) Retirement Deductions
Jena assigns that the trial court used an incorrect figure in calculating Shae's mandatory retirement plan contribution. According to the trial court's child support worksheet, the trial court deducted $557.31 from Shae's monthly salary for his mandatory retirement plan contribution. Although the trial court did not explain how it calculated this number and we have been unable to replicate this exact figure with our calculations, it is apparent that the trial court deducted tier I and tier II railroad retirement contributions, union dues, and 401K contributions from Shae's monthly income, lumping all of these items under the deduction for "Mandatory Retirement."
Paragraph E(4) of the Guidelines provides for the deduction of "[i]ndividual contributions, in a minimum amount required *76 by a mandatory retirement plan." Paragraph E(4) further provides: "Where no mandatory retirement plan exists, a deduction shall be allowed for a continuation of actual voluntary retirement contributions not to exceed 4 percent of the gross income from employment...." Jena argues that Shae's tier II railroad retirement contributions are part of a mandatory retirement plan and that the trial court therefore erred in also allowing a deduction for Shae's 401K contributions because those contributions were voluntary. Shae conceded in his brief that the 401K contributions are voluntary. However, Shae maintains that the tier II amount represents a tax rather than a mandatory retirement contribution and that the 401K contributions thus are properly deductible.
In Wallers v. U.S., 847 F.2d 1279, 1280-81 (7th Cir.1988), the U.S. Court of Appeals explained the history of the tier I and tier II railroad retirement programs as follows:
In 1937, Congress bifurcated the federal old age insurance program between the social security system and the railroad retirement system.... Until 1974 railroad retirement benefits were funded through payroll taxes paid in equal amounts by employers and employees. The applicable payroll tax rate was consistently higher than the social security payroll tax rate....
In 1974, the railroad retirement system was divided into two programs. The Tier I program became the equivalent of social security. It taxes railroad employers and employees at the social security tax rate and distributes retirement benefits equal to those distributed by social security. Railroad retirees receive additional benefits under the Tier II program, which, from 1974 to 1981, was financed by payroll taxes paid solely by employers. Since 1981, railroad employees have been required to pay a small percentage of their income to the Tier II program.
All railroad retirement and social security benefits were tax exempt until Congress passed the Railroad Retirement Solvency Act of 1983 (the "Act" or the "Solvency Act"), Pub.L. No. 98-76, 97 Stat. 411 (codified in scattered sections of 26 U.S.C., 42 U.S.C. and 45 U.S.C.), in an effort to raise what it determined was much-needed revenue for the railroad retirement program. One feature of the Act is the imposition of an income tax on railroad retirement benefits. Tier I benefits are taxed in the same manner as social security benefits.... Tier II benefits, however, are taxed as qualified private pensions. Except to the extent they represent the taxpayers' own contributions, all Tier II benefits are taxed.
(Emphasis supplied.) Thus, as the system is explained in Wallers v. U.S., supra, tier I railroad retirement contributions represent a railroad employee's equivalent to Social Security. We conclude that tier I railroad retirement contributions are deductible under paragraph E(2) of the Guidelines. See Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999) (payments of self-employment taxes by self-employed parent are deductible under paragraph E of Guidelines). While tier I railroad retirement contributions should have been deducted on a different line of the worksheet than the line employed by the trial court, that does not affect the bottom line.
We further conclude that tier II railroad retirement contributions constitute mandatory retirement contributions and, as such, are deductible under paragraph E(4) of the Guidelines. See, also, Montgomery v. Bolton, 349 Ark. 460, 79 S.W.3d 354 (2002) (because tier II contributions *77 are automatic, involuntary, and nonrefundable, they are deducted from net income in calculating child support in order to accurately reflect railroad employee's disposable income).
Shae argues that the tier II deduction is a tax on railroad employees, as defined by the Internal Revenue Code, and that although such tax is automatically deducted, it does not constitute a mandatory retirement contribution. The Internal Revenue Code, I.R.C. § 3201 (Supp. I 2001), provides for the imposition of the "Tier 2 tax" on railroad employees as follows:
(1) In general
In addition to other taxes, there is hereby imposed on the income of each employee a tax equal to the applicable percentage of the compensation received during any calendar year by such employee for services rendered by such employee.
(2) Applicable percentage
For purposes of paragraph (1), the term "applicable percentage" means... 4.90 percent in the case of compensation received during 2002 or 2003[.]
Although the federal statute characterizes the tier II deduction as a "tax," that label does not necessarily dictate the proper classification of tier II deductions under the Guidelines. See Gase v. Gase, 266 Neb. 975, 671 N.W.2d 223 (2003) (contributions may be "mandatory" under the Guidelines notwithstanding opposite characterization by federal regulations). Based on the explanation in Wallers v. U.S., 847 F.2d 1279 (7th Cir.1988), we conclude that in reality, mandatory tier II railroad retirement contributions function under the Guidelines as mandatory retirement contributions.
Shae concedes that unlike tier II railroad retirement contributions, his 401K contributions are not mandatory. Paragraph E(4) of the Guidelines authorizes a deduction for voluntary retirement contributions only "[w]here no mandatory retirement plan exists." Because tier II railroad retirement contributions function as a "mandatory retirement plan" for railroad employees, it follows that in this case, no deduction may be allowed for voluntary retirement contributions. Therefore, under the requirements of paragraph E(4) of the Guidelines, the trial court erred in deducting Shae's 401K contribution from his income. Neither party assigns error under paragraph E(4) in the deduction of the union dues, and accordingly, we do not consider the propriety of including union dues as part of the mandatory retirement deduction.
Upon excluding the amount of Shae's monthly 401K contribution from the mandatory retirement deduction, we conclude that Shae's mandatory retirement deduction is $458.78. This results in Shae's monthly child support obligation being properly calculated as $506 rather than $489.
(c) Retroactive Application of Child Support
Jena filed her motion for modification of child support on September 11, 2002. On May 5, 2003, the trial court entered its order requiring an increase in child support from $350 per month to $489 per month commencing April 1, 2003. Jena argues that the trial court abused its discretion in not applying the modification of child support retroactively to the first day of the month following the filing date of the application for modification. She urges that such retroactive application would not be a hardship for Shae and would be in Triston's best interests.
*78 The main principle behind the Guidelines is to recognize the equal duty of both parents to contribute to the support of their children in proportion to their respective net incomes. Riggs v. Riggs, 261 Neb. 344, 622 N.W.2d 861 (2001). The initial determination regarding the retroactive application of the modification order is entrusted to the discretion of the trial court. Id. The rule, absent equities to the contrary, should generally be that the modification of a child support order should be applied retroactively to the first day of the month following the filing date of the application for modification. Peter v. Peter, 262 Neb. 1017, 637 N.W.2d 865 (2002). The best interests of the child are the paramount concern, and the hardship to the noncustodial parent may also be considered in determining the propriety of retroactive application. See Moore v. Bauer, 11 Neb.App. 572, 657 N.W.2d 25 (2003).
We determine that the facts in this case require that the modified support obligation become effective as of October 1, 2002, the first day of the month following the date of the filing of Jena's petition for modification. In a modification of child support proceeding, the child and custodial parent should not be penalized, if it can be avoided, by the delay inherent in our legal system. Erica J. v. Dewitt, 265 Neb. 728, 659 N.W.2d 315 (2003). Shae has been steadily employed by the railroad. The trial court did not explain or describe, nor can we find in our de novo review of the record, any equities that would support a decision not to apply the child support obligation retroactively. We find that the trial court abused its discretion in that regard and that the increase in Shae's child support obligation should be retroactive to October 1, 2002.
3. CHILDCARE EXPENSES
Jena argues that in not ordering Shae to pay a portion of childcare expenses, the trial court deviated from paragraph N of the Guidelines. That paragraph was amended effective September 1, 2002. For the reader's convenience, we quote paragraph N by striking the language removed by the amendment and underlining the new language as follows:
Child-care expenses are not specifically computed into the guidelines amount and are to be considered independently of any amount computed by use of these guidelines. Child-care expenses for the child for whom the support is being set, which are due to employment of either parent or to allow the parent to obtain training or education necessary to obtain a job or enhance earning potential, shall be divided between the parents in proportion to their parental contribution shall be allocated to the obligor parent as determined by the court, but shall not exceed the proportion of the obligor's parental contribution ... and shall be added to the basic support obligation computed under these guidelines.
This provision of the Guidelines applies to support ordered in paternity cases as well as for children born within a marriage relationship. See Dworak v. Fugit, 1 Neb. Ct. App. 332, 495 N.W.2d 47 (1992).
The stipulation of the parties did not address childcare expenses, nor did the original order. Jena moved for a modification of that order, requesting an order requiring Shae to pay a portion of childcare expenses. The trial court implicitly denied Jena's motion with regard to childcare expenses. See Olson v. Palagi, 266 Neb. 377, 665 N.W.2d 582 (2003) (silence of judgment, disposing of petition to modify, on issue of attorney fees is construed as denial of request for such fees).
*79 A party seeking to modify a child support order must show a material change of circumstances which occurred subsequent to the entry of the original decree or a previous modification which was not contemplated when the prior order was entered. Peter v. Peter, 262 Neb. 1017, 637 N.W.2d 865 (2002). The paramount concern and question in determining child support, whether in the initial marital dissolution action or in the proceedings for modification of decree, is the best interests of the child. Id. In determining whether to modify an award with respect to childcare expenses, this court has compared the need for work-related childcare at the time of the original decree with the need for such childcare at the time of the modification hearing. See, Mace v. Mace, 9 Neb.App. 270, 610 N.W.2d 436 (2000) (original decree did not mention childcare expenses, and trial court did not err in modifying decree to require contribution for childcare expenses by noncustodial parent where custodial parent had held jobs requiring childcare after original decree, did not require childcare at time of modification hearing, but testified that she may secure job necessitating childcare in future); Robbins v. Robbins, 3 Neb.App. 953, 536 N.W.2d 77 (1995) (mere fact that before original decree parties do not require childcare but anticipate future changes of employment and potential for childcare expenses to arise is not sufficient for holding that such expenses are reasonably contemplated).
When the original order was entered, Jena worked at Beverly Healthcare in Sidney. At that time, Jena required daycare for Triston and took Triston to a daycare provider in Sidney. Jena testified at the modification hearing that she worked in Sterling and that Triston had received childcare in Sterling since September 2002. The evidence shows that the need for work-related childcare was contemplated at the time of the original hearing, but the parties chose to omit any such relief at that time. Unless the change in the Guidelines, which change we discuss below, would otherwise affect the analysis, Jena did not show a material change in circumstances with regard to childcare.
We note that the amendment to paragraph N of the Guidelines became effective September 1, 2002, after the trial court entered the original order. Under certain circumstances, an amendment to the Guidelines can itself be considered a material change in circumstances warranting modification of a parent's child support obligation. See, Schmitt v. Schmitt, 239 Neb. 632, 477 N.W.2d 563 (1991) (adoption of Guidelines constituted material change of circumstances warranting change in child support obligations, notwithstanding that such material change resulted from change of law rather than from actions of parties; and Guidelines must be used to calculate new support amount); Phelps v. Phelps, 239 Neb. 618, 477 N.W.2d 552 (1991); Sneckenberg v. Sneckenberg, 9 Neb.App. 609, 616 N.W.2d 68 (2000) (upward revision of Guidelines constitutes material change of circumstances that can warrant upward modification of parent's child support obligation, independent of changes in that parent's income); Olmer v. Olmer, 2 Neb.App. 178, 507 N.W.2d 677 (1993) (amendment of Guidelines might be considered material change in circumstances).
Insofar as these parties are concerned, both the former version and the current version of paragraph N of the Guidelines would operate in essentially the same way. The former version mandated allocation of such expenses by the party's percentage share of both parties' net income. The current version authorizes the court to determine the allocation, but limits a party's *80 contribution to that same percentage share. The amendment did not change the rule concerning the circumstances in which such contributions are appropriate; rather, the amendment affected only the allocation of such expenses. Because the original order did not require Shae to contribute anything to childcare expenses, much less an amount in excess of his parental contribution, we conclude that the amendment to paragraph N of the Guidelines did not constitute a material change in circumstances. Jena did not prove a material change in circumstances, and the amendments to the Guidelines did not constitute a material change under these circumstances. We conclude that the trial court did not abuse its discretion in implicitly denying Jena's request for modification of the order regarding childcare expenses.
VI. CONCLUSION
For the foregoing reasons, we affirm the order of the trial court as modified with respect to Shae's child support obligation and the retroactive application of that obligation. AFFIRMED AS MODIFIED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591596/ | 19 So. 3d 323 (2009)
QUINTANA
v.
FLORIDA UNEMPLOYMENT APPEALS.
No. 3D09-913.
District Court of Appeal of Florida, Third District.
September 30, 2009.
Decision without published opinion appeal dismissed. | 01-03-2023 | 10-30-2013 |
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